July 2024 Updates to the Climate Case Charts

Each month, the Sabin Center for Climate Change Law collects and summarizes developments in climate-related litigation, which we also add to our U.S. and global 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 #184:

FEATURED CASE

In Settlement with Youth Plaintiffs, Hawai‘i Agreed to Actions to Bring Transportation Sector Emissions to Zero by 2045

On June 20, 2024, the Hawai‘i Circuit Court approved a settlement resolving claims brought by youth plaintiffs against the Hawai‘i Department of Transportation and other State defendants (HDOT). The plaintiffs alleged that the establishment, operation, and maintenance of Hawai‘i’s state transportation system violates the Hawai‘i Constitution’s public trust doctrine and right to a clean and healthful environment. The settlement agreement—which was approved four days before a trial was scheduled to begin—includes a “Recognition of Rights” that enumerates the plaintiffs’ rights and the defendants’ obligations under the Hawai‘i Constitution, state statutes, and Hawai‘i Supreme Court precedent. The agreement requires HDOT to take actions to achieve a “Zero Emissions Target” for ground and sea and air interisland transportation sectors by 2045, as required by a 2018 law. HDOT must set interim greenhouse gas emissions reduction targets for 2030, 2035, and 2040 and must develop “a concrete and comprehensive statewide plan” by May 2025 to reduce greenhouse gas emissions in accordance with this schedule. The settlement agreement specifies elements that the plan must include and provides for specific opportunities for the youth plaintiffs and the public to provide comments and feedback on the plan and on annual updates. The agreement also requires development and use of “a process and criteria for evaluating, selecting, and prioritizing projects” in transportation planning, as well as a “an objective, scientifically-based methodology to assess and report the total, long-term [greenhouse gas] emission and [vehicle miles traveled] impacts of each infrastructure project.” In addition, the agreement requires that HDOT establish a climate change mitigation unit within HDOT and a volunteer youth advisory council. The agreement includes commitments by HDOT to take actions to accelerate expansion of the electric vehicle charging network; accelerate expansion of multimodal transportation choices; develop and implement policies to achieve zero emissions; and increase efforts to sequester carbon. The agreement establishes dispute resolution procedures; once a party complies with these procedures, the party may bring a motion in the Circuit Court to enforce the agreement. The court retains jurisdiction of the case until the earlier of December 31, 2045 or the date on which the Zero Emissions Target is achieved. Navahine F. v. Department of Transportation, No. 1CCV-22-0000631 (Haw. Cir. Ct. June 20, 2024)

DECISIONS AND SETTLEMENTS

Supreme Court Agreed to Consider Case Regarding Scope of NEPA Review

The U.S. Supreme Court granted a petition for writ of certiorari seeking review of the D.C. Circuit’s August 2023 opinion finding numerous violations of the National Environmental Policy Act (NEPA) in the Surface Transportation Board’s review of a rail line in Utah that would be used to transport waxy crude oil. The petition presented the question of whether NEPA “requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority.” Seven County Infrastructure Coalition v. Eagle County, No. 23-975 (U.S. June 23, 2024)

Colorado Trial Court Denied Motions to Dismiss Local Governments’ Common Law Climate Claims Against Energy Companies; Canadian Company and Consumer Protection Law Claim Dismissed

The Colorado District Court in Boulder County allowed the City of Boulder and Boulder County to proceed with climate change-based common law claims against three energy companies but dismissed the Canadian parent company of one of those defendants from the lawsuit and dismissed, without prejudice, a claim under the Colorado Consumer Protection Act (CCPA). The local governments allege that the companies concealed and misrepresented the climate change impacts of fossil fuel products while continuing to market and sell the products, leading to injuries from extreme weather, wildfires, and other climate change impacts. The court first addressed personal jurisdiction, finding that the local governments did not establish that Exxon Mobil Corporation (Exxon) consented to general jurisdiction in Colorado courts but that the local governments did show specific jurisdiction over Exxon. Although the court said it indisputably had personal jurisdiction over the owner of an oil and gas refinery in Colorado, the court dismissed the owner’s Canadian parent entity for lack of personal jurisdiction. The court next considered the companies’ preemption arguments and concluded that neither the federal common law nor the Clean Air Act preempted the local governments’ claims. The court also rejected the energy companies’ contentions that the claims were preempted because they interfered with the federal government’s foreign affairs power, violated separation of powers and federalism principles, or violated the dormant Commerce Clause’s extraterritoriality doctrine, the Due Process Clause, or the First Amendment. The court then concluded that the local governments had adequately alleged an injury in fact to establish standing. The court dismissed the claim under the Colorado Consumer Protection Act (CCPA) as time-barred because the alleged specific misleading and deceptive communications to the public were made more than four years before the lawsuit was filed and there were insufficient factual allegations regarding whether the governments filed their claim within three years after they discovered or should have discovered the alleged misleading and deceptive communications. (As noted below, the dismissal of the CCPA claim was without prejudice.) The court concluded, however, that statutes of limitations did not bar the governments’ common law tort claims because they were subject to the continuing tort doctrine. On the merits, the court rejected the energy companies’ arguments that the governments did not sufficiently plead causation. The court further found that the local governments plausibly alleged causes of action for private and public nuisance, trespass, and civil conspiracy claims. The court declined to grant the motion to dismiss the unjust enrichment claim because the motion did not include a separate section elaborating on the challenge to this claim. The court dismissed the CCPA claim without prejudice for failure to meet heightened pleading standards for fraud-based claims. The local governments were granted leave to amend by August 8, 2024 to more particularly plead the CCPA claim. Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.), Inc., No. 2018CV30349 (Colo. Dist. Ct. June 21, 2024)

Oregon Federal Court Rejected Diversity Jurisdiction as Basis for Keeping Multnomah County Climate Case in Federal Court

In Multnomah County’s lawsuit against fossil fuel companies, the federal district court for the District of Oregon adopted a magistrate judge’s findings and recommendations and granted the County’s motion to remand the lawsuit to state court. The findings and recommendations rejected the companies’ arguments based on federal question jurisdiction and on diversity jurisdiction. The district court was not persuaded that the magistrate judge applied an erroneous standard to the analysis of the companies’ argument that the County fraudulently joined the only non-diverse defendant. In addition, the court found that the complaint sufficiently alleged facts to state causes of action against the non-diverse defendant, even in the absence of an alleged misrepresentation by that defendant. The district court also was not persuaded that the magistrate improperly disregarded a declaration establishing that the non-resident defendant was not involved in the alleged misrepresentations. County of Multnomah v. Exxon Mobil Corp., No. 3:23-cv-01213 (D. Or. June 10, 2024)

Oregon Federal Court Remanded Petition for Pre-Suit Discovery to State Court

After fossil fuel companies removed an Oregon metropolitan service district’s petition to perpetuate testimony of a former consultant to ExxonMobil to federal court, the federal district court for the District of Oregon adopted a magistrate judge’s findings and recommendations and granted the district’s motion to remand the matter to state court. The metropolitan service district filed the petition to preserve the consultant’s testimony that the district said was “uniquely important to showing ExxonMobil’s prior knowledge about climate change and explaining its actions and omissions based on that knowledge.” The district identified ExxonMobil as “one of the leading likely defendants” in a potential legal action regarding costs of responding to climate change. The district court agreed with the magistrate judge’s conclusion that the petition was not a removable “civil action.” Metro v. Exxon Mobil Corp., No. 3:24-cv-00019 (D. Or. June 25, 2024)

D.C. Circuit Rejected Challenges to FERC Authorization of Expansion of Natural Gas Service to New York Metropolitan Area

The D.C. Circuit Court of Appeals denied petitions for review challenging a certificate issued by the Federal Energy Regulatory Commission (FERC) for expansion of service on a natural gas pipeline running from western Pennsylvania to the New York metropolitan area to alleviate shortages in Westchester County, New York. Under the National Environmental Policy Act (NEPA), the D.C. Circuit found that FERC reasonably concluded that it could not assess upstream environmental impacts from extracting natural gas from additional wells. In addition, the court found that FERC adequately discussed downstream greenhouse gas emissions, rejecting an argument that NEPA required FERC to label the increased emissions as significant or insignificant. The D.C. Circuit also rejected an argument that FERC should have quantified how much ozone would be produced as a result of an increase in natural gas combustion in Westchester County. Under the Natural Gas Act, the court rejected an argument that the New York State Climate Leadership and Community Protection Act’s mandates for carbon emissions reductions undercut FERC’s finding of need for the project. The court found that the petitioner failed to preserve a similar argument based on New York City’s ordinance that restricts use of natural gas in newly constructed and renovated buildings. Food & Water Watch v. Federal Energy Regulatory Commission, Nos. 22-1214, 22-1315 (D.C. Cir. June 14, 2024)

Split D.C. Circuit Said FERC Properly Approved New York Grid Operator’s Use of Shorter Lifespan for Gas Plants to Set Rates

The D.C. Circuit Court of Appeals rejected the New York State Public Service Commission’s (NYPSC’s) challenge to FERC’s acceptance of the New York grid operator’s use of an amortization period for a hypothetical new gas-fired “peaking plant” that was based on the New York State Climate Leadership and Community Protection Act (CLCPA) target of zero-emission electricity by 2040. When the grid operator submitted its proposed rates for 2021 to 2025 to FERC, it proposed to use a 17-year amortization period based on the CLCPA target instead of the 20-year period it used in previous filings. The D.C. Circuit concluded that FERC (which previously rejected the grid operator’s use of the shorter amortization period) had this time appropriately concluded that the shorter amortization period was within the zone of reasonableness, given the CLCPA’s provisions. The D.C. Circuit also rejected the NYPSC’s argument that FERC did not justify the increased costs to consumers that would result from the use of the shorter amortization period. Judge Childs dissented, writing that the CLCPA itself did not require fossil fuel-fired power plants to shut down by 2040—it only required the NYPSC to promulgate requirements to reach the zero-emissions target by 2040. New York State Public Service Commission v. Federal Energy Regulatory Commission, Nos. 23-1192, 23-1259, 23-1286 (D.C. Cir. June 14, 2024)

Environmental Groups Dropped Challenges to Aspects of SEC Climate Disclosure Rule; Other Petitioners Filed Opening Briefs

On June 6, 2024, the Eighth Circuit Court of Appeals granted motions by Sierra Club and Sierra Club Foundation and by Natural Resources Defense Council (NRDC) for voluntary dismissal of their petitions seeking review of the U.S. Securities and Exchange Commission (SEC) rule for climate-related disclosures for investors. The Sierra Club petitioners said they had sought review of “several discrete deficiencies” in the rule but that they believed the rule “makes needed improvements to disclosure requirements that will better inform them of the financial risks companies face from climate change and that are well within the SEC’s authority to require.” They said they “now believe that focusing our resources on advocating for improved investor protections outside of court, while also supporting efforts to defend the SEC’s fundamental authority to require disclosure of climate-based risks, is the most effective way to ensure investors have the information they need to properly evaluate companies’ exposure to such risks and thus effectively manage their asset portfolios.” NRDC similarly said it had “decided to focus its resources on advocating for improvements to climate-related financial disclosures outside of this litigation.”

Also in June, opening briefs were filed by the remaining petitioners, and at least 15 briefs were filed by amici curiae supporting the challenges to the rule. The amici included members of Congress, Americans for Prosperity Foundation, Hamilton Lincoln Law Institute, Manhattan Institute, Cato Institute, AFA Action, Advancing American Freedom, Inc., Florida and Kansas, American Chemistry Council, Law and Finance Professors, Benjamin Zycher, Ph.D., Business Roundtable, Job Creators Network Foundation, Ohio Chamber of Commerce, and Buckeye Institute. The briefs argue that the rule is arbitrary and capricious, exceeds the SEC’s statutory authority (including based on the major questions doctrine), violates the First Amendment, and violates the nondelegation doctrine. The SEC’s brief is due August 5.

A federal district court in Texas held in abeyance a separate lawsuit challenging the SEC rule; that lawsuit was filed “in an abundance of caution” by companies with a petition also pending in the Eighth Circuit. Iowa v. Securities & Exchange Commission, No. 24-1522 (8th Cir.); Liberty Energy Inc. v. Securities & Exchange Commission, No. 3:24-cv-00739 (N.D. Tex. June 18, 2024)

Louisiana Federal Court Stayed LNG Export Moratorium

The federal district court for the Western District of Louisiana granted a motion by Louisiana and other states for a stay of the Biden administration’s moratorium on new approvals of liquefied natural gas (LNG) exports to non-Free Trade Agreement countries. The court first found that the moratorium was a reviewable final agency action and that the states had standing. The court then denied the defendants’ motion to dismiss counts alleging that the moratorium was contrary to law and not authorized by statute, violated notice-and-comment requirements, was arbitrary and capricious, and violated the Congressional Review Act because it was not submitted to Congress. In addition, the court declined to dismiss a claim that the moratorium violated the Foreign Commerce Clause and separation of powers as well as claims that the defendants’ actions were ultra vires. The court dismissed Administrative Procedure Act claims against the President. Regarding the stay, the court described the halt of LNG exports as “quite complexing” and questioned the cited purpose of updating information on how exports affect the economy, consumers, and the environment. The court wrote that the U.S. Department of Energy (DOE) “has made updates to its studies on several occasions without the President making an announcement of an unprecedented climate change action, and without the DOE declaring a wholesale ‘pause’” on export applications. The court found that the states demonstrated irreparable harm, that equities and public interest favored the states, and that the plaintiffs were likely to succeed on the merits of all but one of the claims, which the court did not address. Louisiana v. Biden, No. 2:24-CV-00406 (W.D. La. July 1, 2024)

Federal Court Again Declined to Stop Offshore Wind Farm Off Rhode Island Coast

In a lawsuit challenging federal approvals for the Revolution Wind Farm off the coast of Rhode Island and the related cable project, the federal district court for the District of Columbia denied the plaintiffs’ second request for a stay of the approvals or a preliminary injunction. The court found that the plaintiffs failed to show a substantial likelihood of standing for either their Clean Water Act or their Endangered Species Act claim. Green Oceans v. U.S. Department of the Interior, No. 1:24-cv-00141 (D.D.C. June 24, 2024)

Texas Federal Court Denied American Airlines Summary Judgment Motion in Class Action Alleging Breaches of Fiduciary Duties Related to ESG Investments

The federal district court for the Northern District of Texas found that there were genuine issues of material fact as to whether American Airlines, Inc. and the American Airlines Employee Benefit Committee violated their duties of prudence and loyalty under the Employee Retirement Income Security Act of 1974 (ERISA) by including funds in an employee retirement plan that were managed by investment managers that pursued environmental, social, and governance (ESG) policy goals. Regarding the duty of prudence, the court said a factfinder could find that the defendants breached their duty by “failing to monitor investment managers and failing to address the facts and circumstances of ESG proxy voting and shareholder activism.” Regarding the duty of loyalty, the court concluded a factfinder could find that the defendants “allowed their corporate ESG goals and/or the goals of a large shareholder to influence the Plan by allowing assets to pursue ESG objectives through proxy voting and shareholder activism.” The court further found that there were factual disputes as to the losses suffered by the retirement plan.  Spence v. American Airlines, Inc., No. 4:23-cv-00552 (N.D. Tex. June 20, 2024)

Texas Federal Court Said Shareholder’s Covenant Not to Submit Future Climate Proposals Mooted Exxon’s Lawsuit to Exclude Proposal

The federal district court for the Northern District of Texas ruled that Exxon Mobil Corporation’s lawsuit asking the court to declare that it could exclude a shareholder proposal about climate change from its proxy statement was made moot by a letter in which the shareholder “unconditionally and irrevocably covenants to refrain henceforth from submitting any proposal for consideration by Exxon shareholders relating to GHG or climate change.” The court—which had found that an earlier letter from the shareholder did not make “absolutely clear” that the shareholder’s conduct would not recur—found that Exxon’s concerns that the shareholder would work “behind the scenes” with other activist investors to submit similar proposals was “conjectural” or “hypothetical” even if “plausible.” Because of the shareholder’s covenant, the court found that any ruling on Exxon’s claim would be advisory and therefore improper. The court therefore dismissed the case without prejudice. Exxon Mobil Corp. v. Arjuna Capital, LLC, No. 24-cv-00069 (N.D. Tex. June 17, 2024)

New York High Court Rejected Argument that Agency Failed to Consider Climate Change Impacts of Affordable Housing Project that Replaced Existing Green Space

The New York Court of Appeals upheld the New York City Department of Housing Preservation and Development’s (HPD’s) negative declaration under the New York State Environmental Quality Review Act for a seven-story building containing affordable apartments for seniors that would include a 0.15-acre publicly accessible open space. The Court of Appeals found that HPD identified appropriate areas of concern, took the required “hard look” at them, and made its determination that the project—which would be located on a City-owned land leased to an individual who previously used the parcel as a green space/sculpture garden and allowed public access for a limited number of hours each week—would not result in a significant adverse impact on the environment. The court further concluded that “[t]he argument that HPD failed to take a hard look at public policy in the area of sustainability and the impact of climate change … lacks merit,” noting that the project would be built to Passive House standards, and that “[t]he agency is not required to address ‘every conceivable environmental impact’ … and petitioners point to no published standards for assessing climate change concerns in a project of this type in general, let alone in the specific areas of urban heat and stormwater runoff,” which were concerns raised by the petitioners. Elizabeth Street Garden, Inc. v. City of New York, No. APL-2023-00163 (N.Y. June 18, 2024)

California Appellate Court Rejected Challenges to Climate Change Analyses in Revised EIR for Los Angeles Project

The California Court of Appeal rejected challenges to the revised environmental impact report (REIR) for a mixed-use development project in downtown Los Angeles. A trial court identified deficiencies in the original EIR and ordered the City of Los Angeles to fix them. In its review of the challenge to the REIR, the appellate court concluded that the doctrine of res judicata barred three claims regarding the consideration of greenhouse gas emissions in the REIR. The petitioner made two of the claims (a claim that the project’s consistency with Assembly Bill 32’s emission reduction goals was an outdated comparison and a claim related to a 2018 executive order setting a target of carbon neutrality by 2045) in its challenge to the original EIR, and could have but did not make the third claim, which concerned greenhouse gas significance thresholds. The appellate court also rejected a challenge to the methodology used in the REIR to determine the significance of the project’s greenhouse gas emissions and contentions that the REIR did not demonstrate consistency with the California Air Resources Board 2017 Scoping Plan or the LA Green New Deal. The court also rejected a facial challenge to the City’s adoption of the California Environmental Quality Act’s (CEQA’s) statewide Appendix G environmental questions checklist as the City’s CEQA thresholds. AIDS Healthcare Foundation v. City of Los Angeles, No. B325502 (Cal. Ct. App. June 25, 2024)

Virginia Appellate Court Affirmed Dismissal of Youth Plaintiffs’ Climate Case Against the Commonwealth

The Virginia Court of Appeals affirmed the dismissal of youth plaintiffs’ lawsuit against the Commonwealth of Virginia and Virginia agencies and officials in which the plaintiffs alleged that the defendants’ permitting of fossil fuel infrastructure caused and contributed to the climate crisis and caused injuries to the plaintiffs, in violation of the plaintiffs’ jus publicum (i.e., public trust doctrine) rights and their substantive due process rights under the Virginia Constitution. Although the appellate court held that sovereign immunity did not bar the plaintiffs’ substantive due process claims because immunity is waived for self-executing provisions of the Virginia Constitution, the appellate court concluded that the plaintiffs failed to establish standing. First, the appellate court found that the plaintiffs did not establish “the necessary particularized injury” but instead presented “general policy disagreements” that fell within the legislature’s purview. Second, the appellate court found that “there is simply no basis to the claim that the Commonwealth’s policies of approving permits for certain facilities … are responsible for the heat rash, tick bites, reduced shellfish stocks, diminished access to places of recreation, and other injuries” alleged by the plaintiffs. Third, the appellate court found that courts were not capable of requiring the “global policy changes” needed to redress the alleged injuries. The court also found that the trial court correctly dismissed the jus publicum claims as barred by sovereign immunity. Layla H. v. Commonwealth, No. 1639-22-2 (Va. Ct. App. June 25, 2024)

Virginia Court Allowed Plaintiff to Proceed with Challenge to State’s Withdrawal from RGGI

On June 24, 2024, Southern Environmental Law Center (SELC) announced that a Virginia Circuit Court had ruled that the Association of Energy Conservation Professionals adequately pleaded its standing to challenge Virginia’s decision to leave the Regional Greenhouse Gas Initiative (RGGI), the multi-state cap-and-trade program for carbon dioxide emissions from the power sector. SELC reported that the court would allow two of the plaintiff’s three claims to proceed: a claim that the Air Pollution Control Board, the Department of Environmental Quality, and its director do not have the authority to remove the State from RGGI and that a claim that the decision to remove the State from RGGI was not supported with the evidence required by the Virginia Administrative Process Act. The court denied a request to suspend the State’s action while the lawsuit is pending. Association of Energy Conservation Professionals v. Virginia State Air Pollution Control Board, No. _ (Va. Cir. Ct. June 24, 2024)

Minnesota Court Rejected Argument that Environmental Review for Replacement of Library Failed to Consider Demolition’s Greenhouse Gas Emissions

The Minnesota Court of Appeals affirmed the City of St. Paul’s determination that an environmental impact statement was not required under the Minnesota Environmental Policy Act for the planned demolition of an existing library and construction of a new library. Among other things, the court disagreed with an argument that the City failed to address the greenhouse gas emissions of demolition. Record of Decision for the Hamline Midway Library EAW, No. A23-1514 (Minn. Ct. App. June 17, 2024)

Citing Early Stage of Litigation, New Mexico Trial Court Declined to Dismiss Environmental Rights Claims

A New Mexico trial court denied State defendants’ motion to dismiss a lawsuit alleging that they violated the New Mexico Constitution by continuing to authorize and promote oil and gas production without assuring protection of the environment. The alleged harms to the plaintiffs included impacts associated with climate change. Although the court said it might ultimately decline to grant injunctive or declaratory relief based on the political question doctrine, the court found that at this stage the plaintiffs stated claims upon which relief could be granted, including claims of violation of the Constitution’s Pollution Control Clause and claims of violations of the plaintiffs’ inherent rights and substantive due process rights and their rights to equal protection (the civil rights claims). The court noted that analysis of whether the New Mexico Constitution guarantees “a fundamental right to a beautiful and healthful environment” or a fundamental right to pollution control was “ill-suited for resolution at the motion to dismiss stage.” The court dismissed the civil rights claims against the State Legislature, finding that it was entitled to absolute immunity from those claims. The court also granted the executive branch defendants’ request that it authorize interlocutory appeal. Atencio v. State, No. D-101-CV-2023-01038 (N.M. Dist. Ct. June 10, 2024)

NEW CASES, MOTIONS, AND OTHER FILINGS

Juliana Plaintiffs Sought En Banc Rehearing of Ninth Circuit Order Directing Dismissal of Their Case

The youth plaintiffs in Juliana v. United States filed a petition for rehearing en banc (or, alternatively, reconsideration) of the Ninth Circuit Court of Appeals order granting the federal government’s request for a writ of mandamus directing the district court to dismiss the plaintiffs’ case for lack of standing. The plaintiffs argued that the Ninth Circuit’s order conflicted with U.S. Supreme Court and Ninth Circuit precedent establishing the standard for granting mandamus relief, and also conflicted with precedent concerning district courts’ discretion to grant leave to amend for a dismissal based on lack of jurisdiction as well as with precedent establishing that declaratory relief provides sufficient redress to serve as a basis for standing to assert constitutional violations. The plaintiffs also filed a motion to vacate the order and recall the mandate. Briefs were filed in support of the petition by amici curiae that included international experts on climate rights and remedies, the Fred T. Korematsu Center for Law and Equality, members of Congress, and litigation clinics at two California law schools. United States v. U.S. District Court for the District of Oregon, No. 24-684 (9th Cir. June 17, 2024)

Washington and Oregon Filed New Challenge to FERC Authorization of Project to Expand Gas Pipeline’s Capacity

Washington and Oregon filed a petition for review in the D.C. Circuit Court of Appeals challenging FERC’s authorization of the construction and operation of Gas Transmission Northwest Xpress, a project to expand the capacity of a natural gas pipeline. The petition challenged FERC’s issuance of the certificate as well as FERC’s order on rehearing and FERC’s “denial by operation of law” of a request for further rehearing. The states previously filed a petition for review challenging the certificate; that proceeding was consolidated with other cases and transferred to the Fifth Circuit. The states’ petition asserted that the project would harm them, including by increasing greenhouse gas emissions and exacerbating climate change harms to state-owned coastal land, forests, parks, and other property. Washington v. Federal Energy Regulatory Commission, No. 24-1204 (D.C. Cir., filed June 17, 2024)

Groups Challenged Approval of Cross-Border Pipeline to Send Natural Gas to LNG Plant in Mexico

Sierra Club and Public Citizen filed a petition for review in the D.C. Circuit Court of Appeals challenging FERC’s issuance of a presidential permit and authorization under Section 3 of the Natural Gas Act for a cross-border pipeline that would transport natural gas from Texas to a pipeline that will extend to a liquefied natural gas (LNG) plant on Mexico’s West Coast. Sierra Club v. Federal Energy Regulatory Commission, No. 24-1199 (D.C. Cir., filed June 13, 2024)

Challenges to Biden Administration Fuel Economy Standards Filed in Multiple Courts

Challenges were filed in multiple federal circuit courts of appeal to the National Highway Traffic Safety Administration (NHTSA’s) fuel economy standards for passenger cars and light trucks for model years 2027 and beyond and fuel efficiency standards for heavy-duty pickup trucks and vans for model years 2030 and beyond. The petitions for review were filed by producers and sellers of liquid fuels used in motor vehicles (Fifth Circuit); American Petroleum Institute, other trade groups, and car dealership owners (Fifth Circuit); 26 states (Sixth Circuit); and an environmental group (D.C. Circuit). Valero Renewable Fuels Company, L.L.C. v. Buttigieg, No. 24-60311 (5th Cir., filed June 17, 2024); American Petroleum Institute v. National Highway Traffic Safety Administration, No. _ (5th Cir., filed June 26, 2024); Sierra Club v. National Highway Traffic Safety Administration, No. 24-1215 (D.C. Cir., filed June 24, 2024); West Virginia v. National Highway Traffic Safety Administration, No. 24-3560 (6th Cir., filed June 26, 2024)

More Petitioners Joined Challenges to EPA Emissions Standards for Light-, Medium-, and Heavy-Duty Vehicles

After states filed the initial challenges to EPA’s light- and medium-duty vehicle emissions standards for model years 2027 and later, additional petitions for review were filed in the D.C. Circuit Court of Appeals. Petitioners included trade groups (including biofuel and oil and gas industry trade groups), agricultural organizations, car dealership owners, and Arizona legislative leaders. Kentucky v. EPA, No. 24-1087 (D.C. Cir.) Petersen v. EPA, No. 24-1132 (D.C. Cir., filed May 15, 2024); Western States Trucking Association, Inc. v. EPA, No. 24-1158 (D.C. Cir., filed May 23, 2024); American Petroleum Institute v. EPA, No. 24-1196 (D.C. Cir., filed June 13, 2024); American Fuel & Petrochemical Manufacturers v. EPA, No. 24-1195 (D.C. Cir., filed June 13, 2024); American Free Enterprise Chamber of Commerce v. EPA, No. 24-1197 (D.C. Cir., filed June 13, 2024)

In addition, more challenges to EPA’s Phase 3 greenhouse gas emissions standards for heavy-duty vehicles were filed. Petitions for review were filed by trade groups (including biofuel and oil and gas trade groups); Arizona legislative leaders; and a coalition of fleets, vehicle and engine manufacturers, servicers, and suppliers, and fuel producers and providers. Nebraska v. EPA, No. 24-1129 (D.C. Cir.) American Petroleum Institute v. EPA, No. 24-1208 (D.C. Cir., filed June 18, 2024); Petersen v. EPA, No. 24-1133 (D.C. Cir., filed May 15, 2024); American Fuel & Petrochemical Manufacturers v. EPA, No. 24-1207 (D.C. Cir., filed June 18, 2024); American Free Enterprise Chamber of Commerce v. EPA, No. 24-1209 (D.C. Cir., filed June 18, 2024); Clean Fuels Alliance America v. EPA, No. 24-1210 (D.C. Cir., filed June 18, 2024); Transport Project v. EPA, No. 24-1214 (D.C. Cir., filed June 21, 2024)

Lawsuit Challenged New BLM Rule Governing National Petroleum Reserve in Alaska as Creating “De Facto Wilderness”; Alaska and Oil Companies Also Challenge Rule

A nonprofit corporation representing local and tribal governments, tribal service providers, Alaska Native Claims Settlement Act Corporations, and other North Slope-serving entities challenged the U.S. Bureau of Land Management’s “Management and Protection of the National Petroleum Reserve in Alaska [(NPR-A)]” final rule. They alleged that the final rule “turns a petroleum reserve into millions of acres of de facto wilderness” in violation of federal statutes, including the Naval Petroleum Reserves Production Act, the Alaska Native Claims Settlement Act, the Alaska National Interest Lands Conservation Act, NEPA, FLPMA, and the Administrative Procedure Act. BLM said the rule was needed to update the regulatory framework governing the management of the NPR-A’s surface resources to account for and respond to changing conditions, including impacts of climate change. At least three other lawsuits were filed in early July 2024 challenging the rule by the State of Alaska and oil companies. Voice of the Arctic Iñupiat v. Bureau of Land Management, No. 3:24-cv-00136 (D. Alaska, filed June 28, 2024); North Slope Exploration LLC v. U.S. Department of the Interior, No. 3:24-cv-00143 (D. Alaska, filed July 3, 2024); Alaska v. Bureau of Land Management, No. 3:24-cv-00144 (D. Alaska, filed July 3, 2024); ConocoPhillips Alaska, Inc. v. Department of Interior, No. 24-cv-00142 (D. Alaska, filed July 5, 2024)

Plaintiffs Said Extensions of ExxonMobil Offshore Leases Failed to Consider Climate Impacts

Center for Biological Diversity and a Native-led public-interest organization filed a lawsuit in the federal district court for the Central District of California challenging the Bureau of Safety and Environmental Enforcement’s (BSEE’s) authorizations of extensions of ExxonMobil Corporation’s offshore oil and gas leases on the Pacific Outer Continental Shelf. Operations had been shut down since May 2015 after the Plains All American Pipeline oil spill. The plaintiffs alleged that BSEE’s determination that granting the extensions was “in the National interest” ignored “evidence demonstrating that extending ExxonMobil’s leases is antithetical to the national interest in addressing the climate crisis, promoting public health and environmental justice, recovering endangered species, and otherwise protecting the environment given the numerous harms inherent in offshore oil and gas drilling.” In addition, they asserted that BSEE violated NEPA by categorically excluding the extensions from review. Center for Biological Diversity v. Haaland, No. 2:24-cv-05459 (C.D. Cal., filed June 27, 2024)

States Said BLM Rule Impermissibly Elevated Conservation and Climate Change

North Dakota, Idaho, and Montana filed a lawsuit in federal district court in North Dakota challenging the Bureau of Land Management’s (BLM’s) final “Conservation and Landscape Health” rule, which the three states characterized as “part of BLM’s broader initiative to use statutory authority given to the Agency for facilitate the development of public resources into a policy of obstructing and preventing the development of these resources for climate change reasons.” The states asserted that the rule violated the Federal Land Policy and Management Act (FLPMA), including because it unlawfully elevated “conservation” as a “use” under FLPMA’s “multiple use framework,” was inconsistent with the states’ Natural Resources Management Plans, and did not comply with FLPMA procedural requirements. In addition, the states asserted violations of the Congressional Review Act (CRA) (because the rule is “substantially similar” to the Obama administration’s 2.0 Planning Rule, which was rejected under the CRA), NEPA, and the Mineral Leasing Act. The states also asserted that the rule was arbitrary and capricious. North Dakota v. U.S. Department of Interior, No. 1:24-cv-00124 (D.N.D., filed June 21, 2024)

Environmental Groups’ Lawsuit Said Forest Service Did Not Sufficiently Address Carbon Sequestration and Climate Impacts of Willamette National Forest Project

Two environmental organizations filed a lawsuit in federal district court in Oregon challenging a U.S. Forest Service project in the Willamette National Forest that they alleged would involve “aggressive commercial logging.” They contended that the final project “does not strike an appropriate balance between the agency’s stated goals of producing timber and reducing hazardous fuels and the need to maintain desperately needed habitat for imperiled species, retain existing stored carbon and facilitate future storage, and protect mature and old-growth forests.” They asserted that the defendants violated NEPA, including by failing to consider reasonable alternatives that would retain and promote carbon storage and by failing to take a hard look at impacts, including impacts on carbon sequestration, carbon emissions, and climate change. Oregon Wild v. Warnack, No. 6:24-cv-949 (D. Or., filed June 13, 2024)

Lawsuit Filed in Texas Federal Court Asserted that Department of Energy Could Not Change Water Efficiency Requirements for Clothes Washers and Dishwashers

Two individuals filed a lawsuit in the federal district court for the Northern District of Texas to compel the U.S. Department of Energy (DOE) to issue new water efficiency standards for dishwashers and clothes washers. The plaintiffs alleged that they were consumers who were harmed by recently adopted regulations regarding the water use of clothes washers and dishwashers. (DOE determined that those rules would result in significant energy savings, citing “the need to confront the global climate crisis,” among other factors.) The complaint also sought a declaration that DOE “is currently without lawful authority to amend the water efficiency requirements of appliances other than showerheads, faucets, water closets, or urinals.” Word v. U.S. Department of Energy, No. 2:24-cv-00130 (N.D. Tex., filed June 13, 2024)

Petitioners Raised Climate Change Concerns in Challenges to Highway Project in Buffalo, New York

Three lawsuits challenging the NYS Route 33, Kensington Expressway Project in Buffalo, New York, raised claims regarding the New York State Department of Transportation’s (NYSDOT’s) consideration of greenhouse gas emissions and climate change in its review of the project. In one lawsuit, brought by East Side Parkways Coalition and people living or working in the vicinity of the project, the petitioners contended that NYSDOT violated New York’s Climate Leadership and Community Protection Act by failing to account for the project’s significant increase in greenhouse gas emissions when construction emissions were taken into account. They also alleged that although the project would result in a net reduction in annual greenhouse gas emissions, the volume of construction-related emissions would mean that the project’s tunnel would have to be in existence for more than 100 years before a net reduction was realized. The petitioners asserted that NYSDOT failed to provide “a detailed statement of justification” for why the project could not meet the greenhouse gas emissions reduction mandates of the CLCPA and also failed to provide any explanation or analysis of potential disproportionate burden on the “disadvantaged community” in which the project would be built, also in violation of the CLCPA. The petitioners also asserted a violation of the New York State Environmental Quality Review Act (SEQRA). In another lawsuit, this one brought by three local groups, the petitioners asserted that NYSDOT violated SEQRA by issuing a negative declaration (that the project would not have significant adverse environmental impacts) despite the project being projected to result in an increase in greenhouse gas emissions by 2050. The petitioners also asserted that NYSDOT violated the CLCPA and the organizations’ members’ right to clean air and a healthful environment under the New York State Constitution’s Environmental Rights Amendment by failing to implement vehicle miles traveled (VMT) reductions recommended in the CLCPA Climate Scoping Plan. They also asserted that NYSDOT failed to comply with the CLCPA’s requirement to prioritize reduction of greenhouse gas emissions in disadvantaged communities. A third lawsuit brought by two individuals who lived near the Kensington Expressway asserted that the determination that the project would not result in significant adverse impacts violated SEQRA and the CLCPA. East Side Parkways Coalition v. New York State Department of Transportation, No. 808702/2024 (N.Y. Sup. Ct., filed June 14, 2024); Western New York Youth Climate Council v. New York State Department of Transportation, No. 808662/2024 (N.Y. Sup. Ct., filed June 14, 2024); Harris v. Dominguez, No. 808703/2024 (N.Y. Sup. Ct., filed June 14, 2024)

Lawsuit Filed to Compel Montana Public Service Commission to Undertake Climate Change Rulemaking

Petitioner organizations filed a proceeding in Montana District Court seeking to compel the Montana Public Service Commission (PSC) to act on a petition requesting that the PSC initiate rulemaking to consider harmful climate change impacts in the regulation of public utilities. The rulemaking petition was submitted in February 2024. The petitioners asserted that the PSC had a clear legal duty under the Montana Administrative Procedures Act to deny the petition or initiate rulemaking proceedings within 60 days of submission. Families for a Livable Climate v. Montana Department of Public Service Regulation, No. DV-32-2024-0000525-WM (Mont. Dist. Ct., filed June 6, 2024)

Consumers Filed Greenwashing Class Action Against Energy Provider in Massachusetts

Two individuals filed a class action complaint in Massachusetts Superior Court alleging that Eversource Energy—an energy provider—deceptively marketed, promoted, and sold natural gas and natural gas services to residential consumers as “clean,” “safe,” and “good for the environment.” They asserted claims under the Massachusetts Consumer Protection Act and the Massachusetts False Advertising Law, as well as a count for unjust enrichment. The complaint alleged that the company’s “portrayal of natural gas as environmentally friendly and beneficial in its marketing materials—by ignoring and concealing the adverse global warming impact of its methane leaks on par with coal”—rendered its claims deceptive in violation of Federal Trade Commission guidelines and Massachusetts regulations. The plaintiffs asserted that the company’s sustainability and carbon neutrality claims were actionable greenwashing. The greenwashing allegations included that the company would have to purchase significant carbon offsets for methane leaks but had admitted to not having purchased any such offsets to date. The complaint also included allegations related to health-safety risks of natural gas. Ortiz v. Eversource Energy, No. 24-1455H (Mass. Super. Ct., filed May 31, 2024)

Challenge to Development Plan on Long Island Alleged Failure to Consider Greenhouse Gas Emissions and Heat Island Effect

A lawsuit filed in the New York Supreme Court challenged a plan by a village on Long Island, New York to sell a 7.45-acre forested area for development of 44 townhomes. The petitioners alleged that the area had been dedicated for use as permanent open space in connection with an earlier development project. The petitioners asserted that the village respondents violated the New York State Constitution’s Environmental Rights Amendment, SEQRA, and the public trust doctrine. The SEQRA cause of action included allegations that the village planning board did not consider adverse impacts of greenhouse gas emissions or the “the creation of ‘heat islands’ through the extensive paving” of the site. The petitioners also asked the court to impose a constructive trust over the area. Neighbors for a True Oasis v. Village of Port Washington North, No. 609509/2024 (N.Y. Sup. Ct., filed May 31, 2024)

HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART

FEATURED CASE

Brazil: Supreme Court Orders the Federal Government to Make a Significant Commitment to Combating Illegal Deforestation

The Rede Sustentabilidade (Rede) political party brought a Direct Action of Unconstitutionality by Omission (ADO) with a request for a precautionary measure due to the unconstitutional omission of the President of the Republic, Jair Messias Bolsonaro, and the Minister of the Environment, at the time, Ricardo de Aquino Salles. The party claimed that the defendants had omitted the task of combating deforestation in the Amazon, failing to comply with the provisions of articles 23, items VI and VII, and 225, caput and §1, items VI and VII, of the Federal Constitution. Rede presented the growing deforestation of the biome, especially as of 2019, as evidence of the concerns. The plaintiff also pointed out the delegitimization, by the Executive Branch, of the data presented by the Space Research Institute (INPE) which proves the increase in deforestation, even causing the dismissal of the Institute’s head of research and publication, violating the right to transparency. Rede presented data brought by the non-governmental organization Instituto do Homem e Meio Ambiente da Amazônia (Imazon), that exposed the rampant increase in deforestation that could lead to a “tipping point”, at which point the cleared forest cannot be recovered, seriously impacting climate change in the region. The case also pointed out the cuts in financial transfers by other states to the Amazon Fund due to the alleged omission of the Executive Branch.

In addition, the plaintiff argued that Brazil is failing to comply with objective 15.2 of the United Nations (UN) 2030 Agenda, which refers to combating deforestation by 2020. It claimed that this commitment was also made at national level by Federal Decree 7.390/2010, revoked by Federal Decree 9.578/2018, which provides for an 80% reduction in annual deforestation rates in the Legal Amazon compared to the years 1996 to 2005, a measure that is part of the National Plan on Climate Change.

The plaintiff requested that: (i) that the injunction be granted, ordering the President of the Republic and the Minister of the Environment to promote concrete actions to combat deforestation in the Amazon; (ii) that the defendants be ordered to report on the measures adopted to combat deforestation, following the release of the data by INPE; (iii) that they be ordered to provide annual data on actions to combat deforestation since 2011; (iv) on the merits, that the injunction be confirmed, and the unconstitutional omission declared in order to order the adoption of administrative measures, in accordance with art. 103, §2, of the Federal Constitution; (v) in the alternative, that the progressive omission be declared unconstitutional in order to warn the defendants of their omission; and (vi) if the Court finds that the ADO is inappropriate, that this action be received and processed as an Argument for Failure to Comply with a Fundamental Precept (ADPF) due to the fungibility of actions.

Due to the similarity of the objects of this ADO (54) and ADPF 760, the Rapporteur of both, Minister Carmen Lúcia, decided to judge them together. In a plenary session, the Justice acknowledged and upheld the actions. In her vote, the Justice stated that the right to an ecologically balanced environment is a fundamental right provided for in the Constitution and in international treaties to which Brazil is a party. The Minister emphasized the principle of the prohibition of environmental retrogression and considered that there was a process of normative “termite infestation” taking place silently, through the dismantling of the state’s bureaucratic-normative apparatus. She indicated that this phenomenon is only visible with a general analysis of the existing framework in the country. The Minister recognized the unconstitutional state of affairs regarding the illegal deforestation of the Amazon rainforest and ordered the resumption of the Action Plan for the Prevention and Control of Deforestation in the Legal Amazon (PPCDAm) by the Federal Union and the competent federal bodies. After the Reporting Justice’s vote, Justice André Mendonça asked to see the case file and so the judgment was suspended.

In April 2024, ADPF 760 and ADO 54 were partially upheld. The Court did not declare the state of affairs unconstitutional but recognized the existence of structural flaws in the policy of protecting the Legal Amazon. It ordered the Federal Government to make a “significant commitment” to combating illegal deforestation in the biome and determined that it should adopt measures to implement the PPCDAm, strengthen the inspection bodies IBAMA, ICMBio and Funai, and that the Federal Government present transparent information on the actions and results of the measures adopted in compliance with the STF’s orders and that the data on the measures adopted by the Executive Branch should be submitted to the CNJ’s Observatory on the Environment and Climate Change in the Judicial Branch. The ruling has not yet been published. (ADO 54 (Amazon Deforestation), Federal Supreme Court, Brazil. See also, PSB et al. v. Brazil (on deforestation and human rights, ADPF 760), Federal Supreme Court, Brazil)

DECISIONS & SETTLEMENTS

Brazil: Supreme Court Dismisses Challenges to Environmental Policy of Federal Government by Brazilian Political Parties

This is an Argument for Failure to Comply with a Fundamental Precept (ADPF), with a request for a precautionary measure, filed by four political parties: the Brazilian Socialist Party (PSB), the Workers Party (PT), the Socialism and Freedom Party (PSOL) and Network for Sustainability (REDE). The aim is to resume the federal environmental sanctioning process. The plaintiffs argue that the federal government has acted to dismantle and weaken the national environmental protection system. They highlight the increase in deforestation and fires in the Amazon and the Pantanal, also affecting indigenous lands, as well as the paralysis of the Action Plan for the Prevention and Control of Deforestation in the Legal Amazon (PPCDAm) and the delegitimization of data relating to these facts by the President of the Republic. They argue that the issuance of Federal Decree 9.760/2019 by the President of the Republic paralyzed the environmental sanctioning process, mainly due to the provision of the conciliation stage in the process and the impossibility of converting fines into environmental services. They point out that the conversion provided for in Federal Law 9.605/1998, which provides for criminal and administrative sanctions for conduct harmful to the environment, is an important institute for fulfilling Brazil’s commitment to the Paris Agreement (enacted by Federal Decree 9.073/2017). They allege that the cases awaiting conciliation hearings have been suspended, while the statute of limitations continues to run. The plaintiffs argue that the Federal Government could not have amended Federal Law 9.605/1998, introducing a new phase to the sanctioning process, by means of a decree, in addition to the fact that the normative instrument has several inconsistencies. They argue that paralyzing this system violates articles 225, 231 and 23, caput and items VI and VII, of the Federal Constitution, the principles related to due process of law and the precautionary principle.

They request, as a precautionary measure: (i) the declaration of unconstitutionality of Federal Decree 9. 760/2019 and that the environmental sanctioning process be unblocked; (ii) alternatively, that the aforementioned decree be interpreted in accordance with the Constitution, in the terms requested; (iii) if it is understood in a different way to the previous requests, that the counting of the statute of limitations for the processes be suspended until the conciliation hearing takes place; (iv) that the implementation of the requested measures be monitored; (v) that the Federal Government be ordered to submit to the Court a plan for resuming the regular functioning of the environmental sanctioning process; and (vi) for the Federal Government to refrain from taking any further measures that hinder, make unfeasible or paralyze the regular progress of the federal environmental sanctioning process. In the final analysis, they request confirmation of the precautionary measures, with the declaration of unconstitutionality of the Federal Decree in question.

Reporting Justice Rosa Weber admitted the Brazilian Association of Members of the Public Prosecutor’s Office for the Environment (ABRAMPA) and the Climate Observatory Laboratory (Observatório do Clima) as amici curiae. In its statement, ABRAMPA highlighted the climate issue and reinforced the points made in the initial petition. It pointed out that the increase in deforestation causes socio-environmental damage and that the land use change and forestry sector is the largest source of greenhouse gas (GHG) emissions in Brazil. He pointed out that encouraging the advance of illegal deforestation aggravates global warming, contrary to international climate commitments and Brazilian climate policy. It therefore argued that the situation violates the fundamental right to an ecologically balanced environment and climate stability. Finally, he emphasized the need for the precautionary measures to be assessed and for a judgment to be made upholding the initial requests.

The case was redistributed to Justice Luiz Fux. Luiz Fux. In his decision rendered on December 15, 2023, he ruled that the ADPF had lost its object, considering the substantial change in the factual-normative framework that existed at the time the suit was filed, including the express repeal of the provisions that brought about the innovations being challenged. For these reasons, he dismissed the case without a decision on the merits.

In February 2024, the decision became final, and the case was dismissed. (ADPF 755 (Federal environmental sanctioning process, Federal Supreme Court, Brazil)

Brazil: Federal Government Settles with Young Climate Activists in Case About Paris Agreement Obligations

This is a Popular Action, with a request for an injunction, filed by young activists who are members of the Engajamundo and Fridays for Future Brasil movements, against Ricardo de Aquino Salles (in his capacity as Minister of the Environment), Ernesto Henrique Fraga Araújo (former Minister of State for Foreign Affairs) and the Federal Union.

Youths claimed that the 2020 submission of its Nationally Determined Contribution (NDC) was less ambitious than the previous one, presented in 2015, in breach of the Paris Agreement (enacted by Federal Decree 9.073/2017). The 2020 Brazilian NDC would allow the country to reach the year 2030 emitting between 200 million and 400 million tons of carbon dioxide equivalent (CO2e) more than proposed in 2015. Youths claimed that the reduction of Brazil’s climate ambition through the use of accounting artifice constitutes “climate pedaling” and requested an injunction until the effects of the new NDC were determined and it was updated in accordance with the progressiveness required by the Paris Agreement. Youth asked that: (i) the 2020 NDC be declared null; (ii) the defendants present an NDC with the percentages of reduction of CO2e emissions increased beyond the necessary limit, aiming at the fulfillment of the commitment of progressiveness of the Paris Agreement; and (iii) condemning the defendants to pay damages for their actions.

A monocratic decision was handed down from the Federal Civil Court of São Paulo that recognized the competence of the Court, since the Paris Agreement was signed and promulgated internally, but rejected the injunction, as it was not possible, summarily, to state that the new NDC did not reflect the greatest possible ambition. After the decision, the defendants filed a contestation, alleging preliminarily the absence of domestic jurisdiction to analyze the matter on the grounds that: (i) acts of sovereignty practiced at the international level are not subject to internal control by the ordinary civil jurisdiction and bind States in terms of foreign relations; (ii) no connecting elements between the subjection of the matter to national jurisdiction were presented; (iii) the Paris Agreement provided for its own dispute settlement mechanism; and (iv) there was no harmful act, as Brazil continues to play a leading role in mitigating the effects of climate change with the greatest possible ambition, in addition to the update being in line with the international best practices.

On November 30, 2023, the Federal Government signed an agreement with the group of young environmentalists who filed the lawsuit to settle the case and bring it to an end. The agreement, in addition to recognizing that Brazil’s commitment to the Paris Agreement has been resumed, provides for the country’s next climate target to be set transparently and with broad participation from civil society. The agreement was ratified by the court in June 2024. (Six Youths v. Minister of Environment and Others, 14th Federal Civil Court of Sao Paulo, Brazil)

Brazil: Supreme Court Imposes a Series of Measures to Combat Deforestation on Federal Government

On September 24, 2020, an Allegation of Noncompliance with a Fundamental Precept (ADPF), with a request for an injunction, was filed by the Labor Party (PT) due to the omission of the Federal Executive Branch regarding the duties of protection, prevention, precaution, inspection, conservation, surveillance and sustainability of the environment and, in particular, with regard to its action against fires that affected the Pantanal ecosystem and the Amazon Forest, emphasizing that this scenario affects climate change. The case highlights the economic and social impacts of the fires, especially for the native communities of the Pantanal, as well as the impacts of fires on the health of animals and the population, even more aggravated by the COVID-19 pandemic. The plaintiffs state that there are risks for future generations, considering that the environmental effects, especially on the climate, are gradual. In addition, it points to violations of human dignity and rights to health, life and an ecologically balanced environment, as well as a lack of commitment to addressing the climate issue. It highlights that the quilombola, riverside and indigenous populations are the most directly affected. It therefore alleges structural failure in the environmental protection system.

In an injunction, the plaintiff requests: (i) the adoption of operational efforts to combat fires in the Pantanal and the Amazon Forest, especially in order to restructure the National System for the Prevention and Combat of Forest Fires (PREVFOGO) and to implement an Action Plan for the Prevention and Control of Deforestation in the Legal Amazon (PPCDAm), in addition to the creation of action plans similar to other Brazilian biomes, (ii) the institution of an integrated public health and veterinary medical treatment project, (iv) the creation of a multidisciplinary commission to serve as an observatory of these measures and (v) the Ministry of the Environment’s explanation of the budget execution of environmental protection programs in 2019 and 2020.

On the merits, it requires recognition of the unconstitutionality of part of the environmental policy of the current Federal Executive Branch due to omissions in the face of incidents of devastation of biomes, confirming the preliminary injunctions.

The main justice submitted the request for an injunction to the plenary.

In April 2024, ADPF 743, 746 and 857 were partially upheld. The Court did not declare the state of affairs unconstitutional, but recognized the existence of structural flaws in the policy of protecting the Legal Amazon, imposing a series of measures to combat deforestation such as the Federal Government presenting a plan to prevent and combat fires in the Pantanal and the Amazon, with recovery of the operational capacity of the National System for Preventing and Combating Forest Fires - PREVFOGO; disclose data related to the budget and budget execution of actions related to environmental protection by the states and the federal government during 2019 and 2020; and report, as well as the state governments, on vegetation suppression authorizations. (ADPF 746 (Fires in the Pantanal and the Amazon Forest), Federal Supreme Court, Brazil)

France: French Court of Appeal Reverses Pre-Trial Decision and Sends Case About French Oil Company’s Corporate GHG Strategy to Trial

The French NGOs Notre Affaire à Tous, Sherpa, Zea, and Les Eco Maires along with more than a dozen French local governments have taken the first step in a legal proceeding against French oil company and carbon major Total. The initiative seeks a court order forcing Total to issue a corporate strategy that 1) identifies the risks resulting from GHG emissions resulting from the use of goods and services that Total produces, 2) identifies the risks of serious climate-related harms as outlined in the 2018 IPCC special report, and 3) undertakes action to ensure the company’s activities align with a trajectory compatible with the climate goals of the Paris Agreement. The plaintiffs argue these obligations stem from domestic law Article L. 225-102-4.-I of the Commercial Code (Loi 27 Mars 2017 sur le devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre). This law requires a company to produce a “plan of vigilance” that identifies and seeks to mitigate risks to human rights, fundamental freedoms, the environment, and public health that could result directly or indirectly from the operations of the company and of the companies it controls.

On June 18th, 2019, following a formal meeting with Total, the plaintiffs announced the launch of a legal proceeding and issued a letter of formal notice (mise en demeure) to Total. Plaintiffs asserted that Total had 3 months to include adequate GHG emissions reductions targets in its latest “plan de vigilance” before they filed a lawsuit seeking a court order to force the company to comply with the law and the goals of the Paris Climate Agreement.

On January 28, 2020, plaintiffs filed a complaint asking a Nanterre court to order Total to recognize the risks generated by its business activities and make it conduct consistent with the goal of limiting global warming to 1.5°C. According to the plaintiffs, their complaint relies on the Law on the Duty of Vigilance, as well as the duty of environmental vigilance arising out of the French Environmental Charter. The plaintiffs allege that Total didn’t provide enough detailed information in its vigilance plan for reducing its emissions and the company is still not in line with international climate agreements.

Total did not respond to the merits and requested that the case be brought before the commercial court. On February 11, 2021, the pre-trial judge rejected Total’s objection of incompetence and confirmed the jurisdiction of the judicial court. The judge considered that the NGOs have, as “non-traders”, a right of option, which they exercise at their convenience, between the judicial court, which they have validly seized, and the commercial court. On November 18, 2021, the Versailles Court of Appeal confirmed the jurisdiction of the Nanterre judicial court to settle the dispute. The decision was based on the exclusive jurisdiction of certain courts of law in matters of cessation and compensation for ecological damage.

On July 21, 2022, the City of New York intervened in support of the Plaintiffs in the current litigation through an intervention volontaire accessoire. The City of New York based its intervention on the significant interest it has in engaging – locally and globally – in efforts to mitigate climate change, because of the severe damages and risks this phenomenon causes to the City.

On July 6, 2023, the pre-trial judge dismissed the preventive lawsuit for procedural reasons after several years of successful litigation on the Civil court’s jurisdiction. The Paris first instance court also refused to examine the impact of TotalEnergies’ activities on climate change.

The judge deemed the lack of strict identity between the demands in the formal notice demands and summons as an inadmissibility ground. In addition, the judge believed no plaintiff had standing concerning climate change since it is a worldwide issue. Although it is a classical issue in climate litigation, the pre-trial judge’s position clearly contradicts the French Admin Supreme Court finding in climate cases against the State (see paras 4 - 7 on standing).

Plaintiffs appealed the decision; the first hearing took place before the Court of Appeal of Paris on March 5, 2024. On June 18, 2024, the French Court of Appeal reversed the pre-trial decision to dismiss the case and affirmed it has to proceed to trial.

First, the Court did not uphold the Tribunal’s affirmation that the notice to sue has to put forward the same claims advanced in the summons and that any discrepancies between the two is a cause for inadmissibility. On the contrary, the Court of Appeal affirmed that the letter sent by the plaintiffs is to be considered as a notice to sue. The Court clarified that the letter does not have to include all the future claims included in the summons, but that the future claims must have the same object indicated in the notice to sue. Moreover, the notice does not forcefully need to concern the same plan of the summons or of the final demands: if the company has not remedied its non-performance, the claim can still proceed.

Second, it stated that claims based on environmental harms (articles 1246 of the French civil codes) are not inadmissible, because they do not replicate the claims based on the law on the duty of vigilance (the rule lex specialia generalibus derogant does not apply in this case). Indeed, these two laws have different aims, as the law on the duty of vigilance forces the company to draft a plan, and the environmental harm aims to redress damages and put an end to damaging behaviors.

Finally, concerning standing, the court highlighted that climate change is a global phenomenon that goes beyond the local interest of the municipality. Therefore, to have standing, a municipality needs to prove a specific interest to sue, that is a specific effect of climate change on the territory of the municipality concerned. (Notre Affaire à Tous and Others v. Total, Paris Court of Appeal, France)

France: Paris Judicial Court Dismisses TotalEnergies’ SLAPP Against Greenpeace France

In November 2022, Greenpeace France published a report named “TotalEnergies’ carbon footprint: accounts are not good”. In this report, Greenpeace France accused the French oil company TotalEnergies of under-reporting emissions in 2019. While TotalEnergies declared 455 million tonnes of carbon dioxide equivalent in 2019 in its carbon balance, Greenpeace France believed TotalEnergies’ core activities had generated around 1.64 billion tonnes of carbon dioxide equivalent.

On April 28th, 2023, TotalEnergies filed a lawsuit against Greenpeace France for violating Article L. 465-3-2 of the Monetary and Financial Code, which prohibits any person from disseminating false or misleading information about a listed company. TotalEnergies argued that Greenpeace France disseminated false and misleading information on its carbon footprint, which was allegedly prejudicial to the Company as a listed company. TotalEnergies asked the civil judge to force Greenpeace France to remove the report from its website and any other medium and to cease all communication relating to it, under a fine of 2,000 euros per day. TotalEnergies also requested compensation for its damage 1 symbolic euro.

On March 28th, 2024, the Paris Judicial Court dismissed TotalEnergies’ SLAPP against Greenpeace France, declaring it “null”. 

The Court deemed the summons too vague to allow Greenpeace France to effectively defend itself on the merits. Under Article 54 of the Code of Civil Procedure, a summons drafted in vague terms and failing to identify the alleged faults is null to the extent that the defendant is unable to grasp the object of the claims against them and thus defend themselves effectively. Additionally, the summons must be sufficiently precise, without the defendant having to “search through the documents” for the exact nature of the grievances against them. The Court decided that no clarification is provided by TotalEnergies regarding the definition of “other false and misleading information”. In addition, the Court considered that TotalEnergies merely highlighted some of the “multiple” errors allegedly committed by Greenpeace France: these “faults” are formulated in vague terms, while repeatedly indicating that the “false or misleading information” identified is not exhaustive. The Court declared that the imprecision of the summons not only concerns the targeted information but also the platforms through which they were disseminated. As a result, the judge declared the nullity of the summons issued by TotalEnergies.

Furthermore, the Court ordered TotalEnergies to pay 15,000 euros to Greenpeace France for costs incurred for the procedure (article 700 of the Code of Civil Procedure). (TotalEnergies v Greenpeace France (SLAPP case), Paris Judicial Court, France)

Germany: Higher Regional Court Finds Detergent Claim of Climate Neutrality Misleading

This case concerned advertising detergents as ‘climate neutral’ by using a respective logo which the claimant, a competitor of the defendant, alleged was misleading and in breach of the German Act against Unfair Competition. While the Regional Court of Frankfurt am Main denied this, the Higher Regional Court partly came to a different conclusion.

Disagreeing with the Higher Regional Court of Schleswig, the Court held that advertising of a company or a product as climate neutral may have a significant influence on a purchase decision. It further stated that the term ‘climate neutral’ had a clear meaning - in contrast to the Regional Court of Frankfurt am Main which had stated the opposite and held that it could be mixed up with the term ‘emission free’. The Court elaborated that average consumers understood climate neutrality in the sense of a ‘balanced balance sheet’. Furthermore, it held that climate neutrality could be reached through emission reduction as well as compensation measures. Consumers had to know whether climate neutrality concerned the whole company and/or certain products. But because emission trading and other compensation measures generally were under the suspicion of greenwashing, consumers had a significant interest regarding the information of the measures taken on behalf of the company in order to reach the alleged climate neutrality.

The Court clarified that the following information was necessary: Is climate neutrality reached through emission reduction or compensation measures? Wholly or partially? Are certain emissions excluded from CO2 accounting? Which criteria are used for the assessment of the label? However, it found that the following information was not necessary: Further details of the climate assessment, e.g. extent of reduction measures in relation to the emissions determined or the object of the climate protection project, at least with respect to low-value everyday items such as the detergents in question. The Court found the advertising to be misleading regarding the scope of the assessment basis, as the consumers could not know which emissions were included in the accounting methods. It held that, in principle, consumers assumed that all significant emissions were compensated. Because the defendant had not considered significant scope 3 emissions and there was no explicit information clarifying this, the Court found this to be misleading. (Higher Regional Court of Frankfurt am Main’s decision on climate neutral claims regarding detergents, Higher Regional Court of Frankfurt am Main, Germany)

Germany: Evian Water Commits to No Longer Advertising as Climate Neutral

The lawsuit is directed against Danone Deutschland GmbH. The company is accused of making misleading advertising claims that suggest products, companies, or services are “climate neutral” or even “climate positive.” The case involves the statements “evian is globally climate neutral certified by Carbon Trust” and “CARBON TRUST CLIMATE NEUTRAL.”

One day before the oral hearing at the Frankfurt Regional Court (case number Az 3-08 O 21/23), the corporation submitted a cease-and-desist declaration subject to penalty and committed to no longer advertising Evian brand water as “climate neutral.” (Deutsche Umwelthilfe v. Danone Deutschland GmbH, Frankfurt Regional Court, Germany)

Germany: Court Prohibits Airline from Advertising Flights as Carbon-Neutral

The lawsuit is directed against the airline company Eurowings. The company is accused of making misleading advertising claims that suggest products, companies, or services are “climate neutral.”

It concerns the following statements (in German):

(1) “Travel CO2-neutral. Together we make flying more sustainable: offset CO2 emissions and take off.”

(2) “Eurowings offers two ways to support sustainable travel. Together with our partner myclimate, we already offer our customers the possibility to offset the CO2 emissions of their flight through a voluntary contribution during the booking process via compensaid.”

The Cologne Regional Court prohibited the airline from advertising flights, whose emissions are offset with a few euros, as “CO2-neutral” in the form that occurred at the time of the lawsuit (case number: 81 O 32/23). The court concluded that the forest protection projects used for the alleged compensation are not suitable for achieving actual compensation, especially due to their short duration. (Deutsche Umwelthilfe v. Eurowings GmbH, Cologne Regional Court, Germany)

Germany: Court Prohibits Meal Delivery Service from Advertising as Climate Neutral

The lawsuit is directed against the company “HelloFresh Deutschland SE & Co. KG.” The company is accused of making misleading advertising claims that suggest products, companies, or services are “climate neutral.” It concerns the following statements:

(1) “The first global climate-neutral meal kit company”

(2) “We offset 100% of our direct CO2 emissions”

The Berlin Regional Court ruled in favor of the plaintiff. The meal delivery service HelloFresh is no longer allowed to call itself the “first global climate-neutral meal kit company” or claim that it offsets 100% of its direct emissions. This decision was made by the Berlin Regional Court this week. In its reasoning (case number: 102 O 15/23), the court also made it clear that companies must substantiate advertising claims such as “climate neutral” transparently and comprehensively. HelloFresh now faces a penalty if it repeats its advertising claims regarding climate neutrality. (Deutsche Umwelthilfe v. HelloFresh Deutschland, Berlin Regional Court, Germany)

Germany: Court Prohibits Coffee Beverage from Advertising as Climate Natural

The lawsuit is directed against the company “Netto Marken-Discount Stiftung & Co. KG.” The company is accused of making misleading advertising claims that suggest products, companies, or services are “climate neutral.” This concerns the marketing of a “climate-neutral coffee beverage.”

The Amberg Regional Court held that Netto Marken-Discount Stiftung & Co. KG is not allowed to advertise products as climate-neutral if the supposed climate neutrality is based solely on the purchase of emission credits from short-term forest projects. The court found that the selected forest protection projects are not sufficient to advertise a product as climate-neutral. (Deutsche Umwelthilfe v. Netto Marken-Discount Stiftung & Co. KG, Amberg Regional Court, Germany)

Mexico: Collegiate Court Upholds Resolution that Relaxed the Criteria for Efficient Cogeneration and the Definition of Fuel-Free Electricity Generation

On July 2023, two NGOs (Nuestros Derechos al Futuro y Medio Ambiente Sano, A.C. and Centro Mexicano de Derecho Ambiental) filed a lawsuit against the Energy Regulatory Commission (Comisión Reguladora de Energía or CRE), challenging the “Resolution No. A/018/2023 of the Energy Regulatory Commission, which updates the reference values of the methodologies for calculating the efficiency of electric energy cogeneration systems and the criteria for determining efficient cogeneration, as well as the efficiency criteria and calculation methodology for determining the percentage of fuel-free energy established in Resolutions RES/003/2011, RES/206/2014, RES/291/2012 and RES/1838/2016, respectively.”

Essentially, the challenged resolution allows a fraction of the electricity generated by fossil gas-fired combined cycle power plants to be considered as clean energy, “relaxing” the criteria for efficient cogeneration and the definition of fuel-free electricity generation. The organizations argue that this agreement violated the right to a healthy environment, because it promotes the use of fossil fuels to generate energy that can be classified as “clean”. The consequence of the agreement is that the percentage of clean energy generated in Mexico will falsely increase, but greenhouse gas emissions will not be reduced. In addition, it is argued that this measure is regressive, since it eliminates the incentive to promote the generation of renewable energy and to reduce greenhouse gas emissions. These modifications encourage the oil industry to continue generating electricity, halting the energy transition in Mexico.

On July 21, 2023, the First District Court in Administrative Matters Specialized in Antitrust, Broadcasting and Telecommunications denied the requested injunction to suspend the effects of the contested resolution. In August 2023, the plaintiffs appealed the Court’s decision to deny the injunction.

On May 16, 2024, the Collegiate Court confirmed the Court’s decision to deny the injunction. (Nuestros Derechos al Futuro y Medio Ambiente Sano and CEMDA v. Energy Regulatory Commission (CRE), Collegiate Court, Mexico)

Scotland: Appeals Court Upholds Approval of Wind Farm

The Aberdeen Offshore Wind Farm Limited (“AOWFL”) applied for permission to build and operate an 11 turbine wind farm off the coast of Aberdeenshire in Scotland. The Minister for Energy, Enterprise and Tourism granted consent to build the wind farm without holding a public inquiry.

Trump International Golf Club Scotland Limited and the Trump Organization LLC (collectively, “Trump”), which is developing a golf course and resort 3.5 kilometers from the wind farm, challenged the approval on the grounds that: 1) AOWFL did not hold a license to generate electricity; 2) the Minister was biased in favor of AOWFL; and 3) the consent lacked an enforcement mechanism to ensure that AOWFL complied with design conditions. A lower court denied Trump’s petition, and Trump appealed.

The appeals court rejected all of Trump’s arguments, finding that a license was not required at the time of consent, there was no evidence of improper bias on the part of the Minister, and enforceable conditions attached to the Minister’s consent. (Trump International Golf Club Scotland Limited and The Trump Organization LLC v. Scottish Ministers, First Division, Inner House, Court Of Session, Scotland)

NEW CASES, MOTIONS, AND OTHER FILINGS

Brazil: Interlocutory Appeal Filed After Court Rejects Preliminary Injunction Against Unauthorized Deforestation

On September 11, 2023, Brazil’s Federal Environment Agency (“IBAMA”), filed a public civil action (environmental class-action) against two individuals, Brandão de Souza Rezende and Jovino Moreno de Miranda, seeking compensation for environmental and climate damages.

The plaintiff claims that 489,0545 ha (hectares) of native Cerrado forest were cleared at the Jatobá farm without prior authorization from the competent environmental agency. It highlights the great importance of the Cerrado and that the advance of illegal deforestation of the biome contributes to the climate crisis. According to remote sensing images, the plaintiff claims that the area continues to be exploited (even though it has been embargoed by IBAMA), without regeneration measures having been adopted. It argues that the defendants are civilly liable for the specific environmental damage caused by the irregular suppression of native forest in the Cerrado and the existence of resulting environmental damage that includes damage to fauna, soil, climate and biodiversity, among other harmful consequences related to deforestation. Several measures to secure the prohibition of further exploitation of the deforested area are requested as an injunction. In a definitive manner, it is requested that the defendants be ordered to (i) recover an area corresponding to the deforested one, (ii) pay collective moral damages in the amount of R$3.693.828,63, (iii) pay for the transitory and residual damage caused to ecological heritage, in addition to compensation for the economic profit obtained illegally, including climate damage.

On October 10, 2023, the judge did not grant the injunction and IBAMA filed an Interlocutory Appeal. (IBAMA vs. Brandão e Jovino, Tocantins Federal Court, Brazil)

Brazil: Defenses Filed in Cases Challenging Carbon Credit Projects

On July 20, 2023, the Public Defender’s Office of the State of Pará (DPE-PA) filed a Public Civil Action (ACP) with a request for injunctive relief against Brazil AGFOR LLC, Michael Edward Greene, Jonas Akila Morioka, Amigos dos Ribeirinhos Assessoria Ambiental EIRELI, Associação dos Ribeirinhos e Moradores, BLB Florestal Preservação no Brasil Ltda. and the Municipality of Portel due to projects that generate illegal carbon credits sold on the voluntary market. This ACP is part of a set of four lawsuits filed by the DPE-PA on the same grounds, but challenging different carbon credit projects.

The REDD+ 2252 project, which is the subject of the lawsuit, overlaps the areas of 5 State Agro-Extractivist Settlement Projects (PEAEX). These PEAEX are public lands, whose real right of use is granted to traditional communities located in the municipality of Portel, in the state of Pará, which did not participate in the contested project. Project 2252, which generates REDD+ assets (credits generated by avoided deforestation, sustainable management and increased forest carbon stocks), was certified by an international company and has been established since 2016 to generate carbon credits for thirty years. Companies and individuals are sued for being responsible as either developers of the project or alleged owners of rural properties where it is located.

The DPE-PA alleges irregularities in the property registrations that make up the project, and that the project does not have authorisation from the state of Pará, which characterises the grabbing of public land. In addition, the mayor of Portel issued a Public Utility Decree authorising its operation, which the DPE-PA argues is unconstitutional. It is emphasised that the project was implemented without a prior technical study. The DPE-PA argues that the defendants acted in violation of the right to traditional territory, the right to prior, free and informed consultation of traditional communities, that they did not comply with federal legislation on climate change, payments for environmental services and the concession of public forests, and that they did not benefit the communities directly affected by the project. It argues that the defendants’ behaviour entails the duty to compensate for collective moral damage. As an injunction, the plaintiff requests (i) the recognition of the possession of the lands by the traditional communities; (ii) the suspension of Project 2252 and an order that the defendants refrain from entering the PEAEX. On the merits, the plaintiff requests (i) confirmation of the requests for an injunction; (ii) recognition of the right to the traditional territory; (iii) the annulment of Project 2252 and the legal transactions derived from it; (iv) an order to prohibit the defendants from entering the territories; (v) a declaration that the Public Utility Decree issued by the Municipality of Portel is null and void; and (vi) an order to pay collective moral damages in the amount of R$ 5,000,000.00 to be paid into the Eastern Amazon Fund in favour of the communities of the extractivist territories of Portel.

In October 2023, Brazil Agflor and Michael Greene filed their defenses. They claimed that the Project’s lands were not subject to land grabbing, indicating that the community’s areas unduly overlapped private properties. The only mention of the climate issue was limited to the potential role of carbon credit projects in reducing deforestation, mitigating the main cause of greenhouse gas emissions in Brazil. They requested (i) that they be excluded from being a party to the lawsuit; (ii) that the merits of the lawsuit be dismissed in their entirety; (iii) that the value of the lawsuit be challenged; and (iv) that an expert examination be carried out on documents relating to the properties discussed in the lawsuit. These defenses were also filed in Public Defender’s Office of the State of Pará vs. Floyd Promoção e Representação LTDA and others (Project 981 carbon credits and “forest carbon grabbing”) and Public Defender’s Office of the State of Pará vs. Associação dos Ribeirinhos e Moradores and others (Project 2620 carbon credits and “forest carbon grabbing”). (Public Defender’s Office of the State of Pará vs. Brazil AGFOR LLC and others (Project 2252 carbon credits and “forest carbon grabbing”, Para State Court, Brazil)

Brazil: Defenses Presented in Class-Action over Oil Exploration Block Auction

On December 12th, 2023, the NGO Instituto Arayara de Educação e Cultura para a Sustentabilidade, the Articulation of Indigenous Peoples of Brazil (APIB) and the Rio dos Pardos Indigenous Land Kupli Village filed a public civil action (environmental class-action) against the National Agency for Petroleum, Natural Gas and Biofuels (ANP), Brazil’s Federal Environment Agency (IBAMA), and the Federal Government. This lawsuit is part of a set of 6 environmental class-actions filed against the 4th Bid Cycle for oil exploration blocks. The aim is to challenge the auction of oil exploration blocks held through the 4th Cycle.

The plaintiffs argue that the inclusion of a set of blocks located in the Paraná and Amazonas Basins is illegal, as they overlap with areas of influence or restriction of 23 indigenous lands, and there was no prior, free and informed consultation process. They claim this is a case of environmental racism, since the proximity of the exploration blocks to indigenous lands poses risks to health, the environment, and the use of the territory by the peoples who live there. They state that the climate crisis scenario requires an energy transition towards clean energies and a reduction in GHG emissions, which is incompatible with the expansion of oil exploration. Furthermore, they affirm that indigenous lands are essential for combating this crisis, as they are barriers against deforestation and forest degradation and their inhabitants are the main guardians of the environment. As a preliminary injunction the plaintiffs request the suspension of the offer of the contested exploration blocks in the 4th Bid Cycle, until the protection of indigenous rights is observed. On a definitive basis, they request that the contested blocks be excluded from the Bid Cycle until the affected indigenous rights are consulted.

On December 19th, 2023, the court rejected the request for an injunction and partially rejected the initial petition regarding the blocks located in the Paraná Basin, as they did not fall within its jurisdiction. The court ruled that there was no longer any procedural interest in challenging some of the exploration blocks since, when the auction took place, only two blocks (AM-T-107 and AM-T-133) were auctioned off, and the proceedings should continue only in relation to them. Also, Atem Participações S.A. was included as a necessary co-litigant, as it was the bidder for the exploration blocks. This preliminary injunction does not mention climate change.

In March 2024, IBAMA and ANP presented their defenses, stating that there is no overlap between the blocks on offer and indigenous lands. They emphasized the economic benefits of oil exploration for Brazilian society and that in the International Energy Agency’s NetZero 2050 scenario, the energy matrix will still rely on oil and natural gas as primary energy and that the impacts of greenhouse gas emissions from the projects can be assessed in the environmental licensing phase under the financial burden of the entrepreneur. The ANP clarified that it promotes social participation before bidding for oil and natural gas exploration rights. They emphasized that simply holding an auction process does not impose a risk on the environment. On March 4th, 2024, the Federal Government filed its defense. In addition to addressing the licensing issues already dealt with by other federal bodies, it claimed that the offer of the contested blocks is technically supported by the rules issued by the competent bodies. In March 2024, Atem Participações S.A. filed a defense in which it stressed that the bidding process does not pose a risk to the environment and that all the impacts of the projects to be explored will be assessed during the environmental licensing phase. (Instituto Arayara, APIB and Rio dos Pardos Indigenous Land Kupli Village vs. ANP, IBAMA, Federal Government and others, Amazonas Federal Court, Brazil)

Brazil: Defenses Filed in Government Deforestation Class-Action

On October 28, 2022, the Institute of Amazonian Studies (Instituto de Estudos Amazônicos (IEA)) filed a Public Civil Action (class-action) against the Federal Union and Federal Environmental Agencies (Brazilian Institute of the Environment and Renewable Natural Resources (IBAMA) and Chico Mendes Institute for Biodiversity Conservation (ICMBio)). It states that deforestation causes irreparable damage to the Amazon Rainforest and affects the rights and way of life of the traditional extractivist community, which is based on the sustainable exploitation of natural resources.

The action emphasizes that the Chico Mendes Extraction Reserve (RESEx) is an instrument of social justice and a vehicle for forest protection. It claims that the advance of deforestation has occurred due to the weakening of public policies, land invasion, road construction, density of access roads, and fires in the region, among other reasons. According to the plaintiff, beginning in 2019, there has been a drastic increase in deforestation. The RESEx Utilization Plan states that deforestation in areas with rubber plantations cannot exceed 10% of the area, and the action claims that this limit has been exceeded in approximately half of those areas. The IEA emphasizes that RESEx has a strategic role in providing environmental services to the inhabitants of the Acre River basin due to the supply of water. It also highlights the deforestation reduction targets for the Legal Amazon region in the Amazon Deforestation Prevention and Control Plan (PPCDAm) foreseen in Federal Law 12.187/2009 (National Policy on Climate Change (PNMC)), which, according to the IEA, are not being met. It points out that, as the Federal Union, IBAMA and ICMBio are not fulfilling their duty of management and control and are contributing to the damage to the RESEx and the community. It emphasizes the vital role of the forest in the carbon cycle and that approximately three million tons of carbon were released into the atmosphere due to illegal deforestation in the RESEx. The IEA argues that there is a need for full environmental reparation in addition to the obligation to restore the forest and argues that future studies should be done to calculate the compensation for associated damages, such as climate damage. It emphasizes the vulnerable situation of the community, which justifies the payment of compensation for collective moral damage. It also argues that there is a need to prepare a Forest Restoration and Deforestation Control Plan for the region.

Finally, among the other claims, the author requests: (i) payment of compensation for the material damage caused to the environment in the amount of at least R$ 183,817,104.00; (ii) payment of compensation for collective moral damage in the minimum amount of R$ 100,000,000.00; and (iii) immediate forest restoration of the entire area deforested above the established limit, to be carried out according to a Forest Restoration and Deforestation Control Plan. The case is still pending but a favourable opinion was issued by the MPF.

In October 2023, the defendants filed defenses in which they claimed that the projects and the licensing process were in order and that the contested administrative acts were legal. (Institute of Amazonian Studies v. Federal Union and Federal Environmental Agencies (IBAMA and ICMBio) (Chico Mendes Extraction Reserve), 2nd Federal Civil and Criminal Court of the Judiciary Section of Acre, Brazil)

Brazil: Interlocutory Appeal Filed After Court Rejects Preliminary Injunction Against Gas-Fired Thermoelectric Plant Rule

On September 27, 2022, the NGO, Instituto Internacional Arayara filed a Public Civil Action (environmental class-action) against National Agency of Electrical Energy (ANEEL) and the Federal Government to challenge the implementation of ANEEL Auction N 08/2022, which aims to hire energy from gas-fired thermoelectric plants. The Auction results from the Federal Law 14.182/2022, which determined the privatization of Brazilian Energy Company Eletrobras, but whose legislative process included the insertion of unrelated content, determining the contracting of energy from gas-fired thermoelectric plants.

The plaintiff alleges that the climate crisis is incompatible with the increase in greenhouse gas emissions (GHG) that will be generated by the thermoelectric plants, which could lead to a 39% increase in annual GHG emissions for the electricity sector compared to the levels registered in 2021. They point to several negative impacts associated with the projects of gas-fired thermoelectric plants to be installed in areas of the Legal Amazon. They will generate socio-environmental impacts on traditional communities, native peoples, and protected areas; compromise the use of local water resources, due to the high water-use; and increase the price of electricity for consumers. This would worsen climate change and violate the National Environmental Policy Act (Federal Law 6.938/1981), the National Climate Change Policy (Federal Law 12.187/2009), the Paris Agreement, and compromise the achievement of the Brazilian NDC. The plaintiffs request, as a preliminary injunction: (i) the suspension of ANEEL Auction or the suspension of its effects; (ii) in the event the Auction is maintained, it is requested that the defendants submit an inventory of GHG emissions from all the thermoelectric plants involved, as well as the impact of the emissions on compliance with the Brazilian NDC. Finally, they request: (i) the cancellation of Auction nº 008/2022, with the annulment of all its effects and the determination that no new similar auction be held on the basis of Federal Law 14,182/2022; (ii) in the event the Auction is maintained, that the defendants be required, definitively, to submit an inventory of GHG emissions of all the thermoelectric plants involved, as well as the impact of the emissions on compliance with the Brazilian NDC.

On June 22, 2023, the court rejected the request for an injunction, considering that there was no urgency or danger of delay; on the contrary, it recognized that suspending the effects of ANEEL’s auction would entail a danger of reverse damage. An interlocutory appeal was then filed against the decision, in which it was requested that the effects of ANEEL Auction 08/22 be suspended or, if the auction is maintained, that the defendants submit, within ninety days, an inventory of greenhouse gas emissions from all the fossil fuel-fired thermoelectric plants involved in the auction, as well as the impact of these emissions on compliance with the NDCs. (Instituto Internacional Arayara vs. National Electrical Energy Agency and Brazil, Second Regional Federal Tribunal, Brazil)

Brazil: Defenses Filed in Class-Action Against Natural Gas Plant and Federal Government

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 concealment 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.

In July 2023, the defendants filed their defenses. They argued that environmental licensing was regularly held. (Instituto Verdeluz and others v. Portocem Geração de Energia S.A. and SEMACE, Ceará Federal Court, Brazil)

Brazil: Defenses Filed in Case Calling on Brazilian Government to Comply with Climate Laws

On July 6th, 2023, Instituto Preservar, Associação Gaúcha de Proteção ao Ambiente Natural - AGAPAN and Núcleo Amigos da Terra - Brasil filed a Public Civil Action (ACP) against the Federal Union, Federal Environment Agency - IBAMA, National Electric Power Agency - ANEEL, Companhia de Geração e Transmissão de Energia Elétrica do Sul do Brasil - Eletrobras CGT Eletrosul (SE & UTE Cantiota III), the State of Rio Grande do Sul, Rio Grande do Sul environmental agency - FEPAM and Companhia Riograndense de Mineração - CRM. The lawsuit seeks to order the defendants to adopt effective measures to comply with the guidelines, deadlines and targets set out in federal and Rio Grande do Sul ‘s climate laws. It is argued that in the period from 2009 to 2023, the Federal Government, and from 2010 to 2023, the state of Rio Grande do Sul, by action or omission, failed to comply with the legal guidelines and did not meet the deadlines and targets set out in the National Policy on Climate Change (PNMC), the Paris Agreement and the Rio Grande do Sul ‘s Policy on Climate Change (PGMC). This is because there was no effective implementation of instruments such as the Strategic Environmental Assessment (SEA), equal and transparent composition of the Rio Grande do Sul Climate Change Forum (FGMC) and the Brazilian Climate Change Forum and no measures have been taken to reduce greenhouse gas (GHG) emissions from coal-fired power plants in the state of Rio Grande do Sul, with a Just Energy Transition (TEJ) plan, which results in the ineffectiveness of these climate standards.

It is pointed out that the climate crisis has led to water shortages in the municipality of Candiota, which has been recognized by municipal decree and that, in parallel to this situation, the various coal-fired thermoelectric plants in the region use local water for cooling, causing damage to the water system, the biome and the climate. It is alleged that the defendants have neglected climate policy when dealing with the licensing and renewal of licenses for these projects in the state. At the same time, the Federal Government has encouraged coal-fired thermoelectric projects through energy auctions authorized by ANEEL. CRM, responsible for the Candiota coal mine, and CGT Eletrosul, responsible for the Candiota III Thermoelectric Plant - the most polluting and least efficient plant in the country - have been operating in disregard of environmental climate laws. It is argued that it is up to the Judiciary, based on the principle of the prohibition of regression and duties of protection, to guarantee effective compliance with the rules in question and prevent the climate scenario from worsening. It is argued that the entire situation of alleged unlawfulness gives rise to a claim for compensation for collective moral damages.

The plaintiffs make several requests for injunctive relief for the various defendants, so that the defendants’ conduct is brought into line with the environmental climate standards. On the merits, it is requested that (i) the requests for preliminary injunctions be confirmed; (ii) it be declared that in the period from 2009 to 2023, the Federal Government, and from 2010 to 2023, the state of Rio Grande do Sul, by action or omission, failed to comply with climate standards and did not meet the deadlines and targets set out in the PNMC, the Paris Agreement and the PGMC, because they did not give effect to the regulations and did not act to reduce GHG emissions from coal-fired thermoelectric plants in the state; (iii) it be declared that Rio Grande do Sul has failed to meet the targets and deadlines set out in international, national and state regulations; (iv) the suspension of public incentives to exploit coal in the state, the implementation of a TEJ plan for the contested plants; the publication of public notices to finance educational projects and research projects with universities and federal institutes that encourage environmental awareness and the guidelines of the PNMC and PGM; the creation of a WG for the decommissioning and energy transition of coal-fired projects; and the suspension and non-renewal of energy sales contracts for the contested plants; (v) ordering the defendants to pay compensation for climate damage; (vi) ordering the Federal Government and the state of Rio Grande do Sul to bear the costs of the requests made; and (vii) ordering all the defendants to pay the sum of ten million reais as collective moral damage in environmental and climate matters.

The request for injunctive relief was rejected by the judge, which ruled that the analysis of the claims would require a more in-depth hearing. The judge argued that the plaintiffs’ claims were too broad and had high economic, political and social impacts. In addition, he argued that the effects of climate change are recognized by the international community, that the process of adaptation by countries is slower than desirable, and could cause irreversible damage to the environment and future generations.

In September 2023, the defendants filed their defenses, claiming that the activities were in line with environmental legislation. CRM claimed that it had already drawn up a mine closure plan. ANEEL pointed out that the participation of non-renewable sources in energy auctions is not the result of ANEEL’s discretionary choice, but rather of compliance with the guidelines established by the Ministry of Mines and Energy and that the agency does not have a licensing function. It claimed that Rio Grande do Sul has 80% of its energy matrix made up of renewable energies and that the forecast for the expansion of energy supply in the state does not include an increase in fossil sources. The state of Rio Grande do Sul argued that it complies with current federal and state regulations, that the causes of climate change are global and that there is no causal link between the state’s conduct and the damage alleged in the lawsuit. IBAMA argued that there is a lack of rules on the mitigation and reduction of GHG emissions; that decisions on the reduction of GHG emissions and the need to replace the national energy matrix are made by technical bodies and it is not up to the Judiciary to intervene; and that the causes of air pollution are diffuse and that there is no proof of damage caused by IBAMA. The Union highlighted the lack of sectoral sub-national targets for reducing GHG emissions in Brazilian legislation and the absence of a causal link that could connect the Union to the environmental damage referred to in the initial petition, whether by action or omission. Eletrobras CGT Eletrosul claimed that the licensing of the Candiota III TPP regularly took place, that climate factors were taken into account in the procedure; that its operation complies with the GHG emission parameters established in the licensing; and that the plant is not the most polluting in the country. It argued that the Paris Agreement, the PNMC and the Gaucho Policy on Climate Change are general and programmatic norms, which do not generate obligations; and that there is no specific legal provision that substantiates climate environmental licensing. It also pointed out that the country has a scenario for reducing GHG emissions from thermoelectric power plants. It argued that the damage allegedly caused by the plant’s operation had not been proven in the initial petition. (Instituto Preservar, AGAPAN and Núcleo Amigos da Terra vs. Federal Union and others (Climate emergency in Rio Grande do Sul state), 9th Federal Court of Rio Grande do Sul, Brazil)