June 2022 Updates to the Climate Case Charts

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

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #159:

FEATURED DECISION

First Circuit Affirmed Remand Order in Rhode Island’s Climate Case Against Energy Companies

The First Circuit Court of Appeals affirmed a district court order remanding Rhode Island’s climate change case against energy companies to state court. The First Circuit noted that this was its “second pass at a climate-change case that requires us to explore the mind-numbing complexities of federal removal jurisdiction.” In 2021, the Supreme Court vacated and remanded the First Circuit’s 2020 affirmance of the remand order after determining in the Baltimore case that federal appellate courts have jurisdiction to consider appeals on all grounds for removal when the federal-officer removal statute is one basis for removal. In reviewing the other grounds for removal in Rhode Island’s case, the First Circuit “lean[ed] hard on our sibling circuits’ analyses in comparable climate-change cases,” and agreed with the other courts’ conclusions that there was no federal jurisdiction over Rhode Island’s claims, which the court characterized as seeking to hold the companies liable for climate change-related harms allegedly caused by the companies “deliberately misrepresenting the dangers they knew would arise from their deceptive hyping of fossil fuels.” First, the First Circuit found that even if the well-pleaded complaint rule did not prevent the court from finding that Rhode Island’s state-law claims were necessarily federal common law claims, the companies “cannot premise removal on a federal common law that no longer exists.” The First Circuit said that even if control of interstate pollution, promotion of energy independence, and negotiation of treaties addressing climate change were “uniquely federal interests,” the companies did not satisfy the second requirement for creating federal common law—that there be a “significant conflict … between some federal policy or interest and the use of state law.” The First Circuit also said that even if the companies had not failed to make a showing of a significant conflict, statutes—the Clean Air Act and the Clean Water Act—had displaced any federal common law that previously existed. Second, the First Circuit found that there was no Grable jurisdiction because the companies did not establish that a federal issue was a necessary element of any of Rhode Island’s state-law claims. Third, the First Circuit rejected the argument that the Clean Air Act completely preempted Rhode Island’s claims. Fourth, the court found that federal enclave jurisdiction did not apply since Rhode Island specifically avoided seeking relief for alleged damages to federal lands and because “some of the pertinent events … occurred outside federal enclaves.” Fifth, the First Circuit found that the companies failed to establish that Rhode Island’s claims satisfied the Outer Continental Shelf Lands Act’s jurisdiction requirement that cases arise “in connection with” an operation conducted on the Outer Continental Shelf. Sixth, the First Circuit found that admiralty jurisdiction did not exist because Rhode Island did not allege that a vessel caused its land-based injuries. Lastly, the First Circuit rejected the companies’ invocation of bankruptcy jurisdiction based on Rhode Island’s claims’ relationship to the bankruptcy case of Texaco Inc. or other bankruptcy matters of predecessors, subsidiaries, and affiliates. Rhode Island v. Shell Oil Products Co., No. 19-1818 (1st Cir. May 23, 2022)

DECISIONS AND SETTLEMENTS

Supreme Court Declined to Vacate Stay of District Court Injunction on Use of Social Cost of Greenhouse Gases

In a single-sentence order, the U.S. Supreme Court denied an application by Louisiana and nine other states to vacate the Fifth Circuit’s stay of a district court’s preliminary injunction barring federal agencies from using the work product of the Interagency Working Group on Social Cost of Greenhouse Gases and from using any social cost of greenhouse gases estimates based on the global effects of greenhouse gases. The district court also ordered the federal defendants to return to using 2003 guidance. Briefing on the merits of the preliminary injunction appeal is underway in the Fifth Circuit, with Louisiana and the other nine states’ brief due on June 16, 2022. Louisiana v. Biden, No. 21A658 (U.S. May 26, 2022)

Fourth Circuit Denied Rehearing en Banc of Remand Order in Baltimore Case

On May 17, 2022, the Fourth Circuit Court of Appeals denied energy companies’ petition for rehearing en banc of the court’s affirmance of a district court’s order remanding Baltimore’s climate change case against the companies to state court. The companies had argued that the panel’s decision “squarely conflicts” with the Second Circuit’s decision dismissing New York City’s case against energy companies and that the panel’s application of the well-pleaded complaint rule was at odds with Fourth Circuit precedent. Mayor & City Council of Baltimore v. BP p.l.c., No. 19-1644 (4th Cir. May 17, 2022)

Massachusetts High Court Affirmed Denial of Motion to Dismiss Attorney General’s Climate Change-Related Enforcement Action Against Exxon

The Massachusetts Supreme Judicial Court affirmed a trial court’s denial of Exxon Mobil Corporation’s (Exxon’s) special motion to dismiss the Massachusetts Attorney General’s enforcement action alleging that Exxon’s communications with investors and consumers related to climate change constituted unfair and deceptive practices. Exxon filed the special motion under Massachusetts’s anti-SLAPP (Strategic Litigation Against Public Participation) law, which protects parties exercising their right of petition. The Supreme Judicial Court held that the anti-SLAPP law did not apply to government enforcement actions brought by the Attorney General. The court found that this interpretation was grounded in the statutory language, the rules of construction applicable to enforcement of statutes against the Commonwealth, and the legislative history and purpose of the anti-SLAPP law. Commonwealth v. Exxon Mobil Corp., No. SJC-13211 (Mass. May 24, 2022)

Fifth Circuit Affirmed Remand Order in Class Action Against Entergy for Power Outages After Hurricane Ida

The Fifth Circuit Court of Appeals affirmed an order remanding to Louisiana state court a class action lawsuit brought by individuals who alleged that Entergy Corporation and related entities (Entergy) negligently designed, operated, and maintained the electricity transmission system, which led to power outages in the wake of Hurricane Ida. The plaintiffs’ allegations included that Entergy was aware of climate change and aware that Louisiana was experiencing more hurricanes and other severe weather. The plaintiffs also alleged that Entergy failed to take actions in response to deficiencies identified in a 2007 “Hardening Study.” In its opinion affirming the remand order, the Fifth Circuit held that the Class Action Fairness Act’s (CAFA’s) local controversy and home state exceptions barred federal jurisdiction. The court also held that it lacked jurisdiction to review other asserted grounds for federal jurisdiction. (The Fifth Circuit concluded that the Supreme Court’s decision in BP p.l.c. v. Mayor & City Council of Baltimore extending appellate review to the entire remand order when one ground for removal is the federal officer removal statute or the civil rights removal statute did not expressly or implicitly overrule Fifth Circuit precedent barring appellate review of non-CAFA-related grounds for removal.) Stewart v. Entergy Corp., No. 22-30177 (5th Cir. May 27, 2022)

Ninth Circuit Said Forest Service Did Not Have to Update 1987 Forest Plan to Address Climate Change

In an unpublished decision, the Ninth Circuit Court of Appeals affirmed the dismissal of a lawsuit that alleged that the U.S. Forest Service should have supplemented the environmental impact statement for the 1987 Gallatin Forest Plan after the Forest Service amended its regulations in 2012 to recognize that climate change necessitated updates to forest plans. Although the Ninth Circuit did not agree that the Forest Service’s completion of a revised forest plan in February 2022 mooted this claim, the court agreed with the Forest Service that the 1987 plan was not “ongoing major Federal action” pursuant to the National Environmental Policy Act (NEPA). Supplemental NEPA analysis therefore was not required. The Ninth Circuit also rejected arguments that recent events, including the Forest Service’s decision to revise the forest plan, required supplemental NEPA analysis for three ongoing logging projects. Cottonwood Environmental Law Center v. Marten, No. 21-35070 (9th Cir. May 6, 2022)

Parties Settled Lawsuit Seeking Listing Determination for Giraffe

Three nongovernmental organizations and federal defendants agreed to a settlement to resolve litigation seeking to compel the U.S. Fish and Wildlife Service (FWS) to complete a 12-month finding on the organizations’ petition to list the giraffe under the Endangered Species Act. The complaint—filed in 2021—alleged that giraffes face a number of ongoing threats, including increased frequency and magnitude of droughts associated with climate change. The settlement provides that the FWS will review the giraffe’s status and submit a determination to the Federal Register by November 7, 2024 as to whether listing the giraffe is not warranted, warranted, or warranted but precluded. Center for Biological Diversity v. Haaland, No. 1:21-cv-02660 (D.D.C. May 31, 2022)

Montana Federal Court Vacated Withdrawal of Proposal to List Wolverine as Threatened in Contiguous U.S.

The federal district court for the District of Montana granted the U.S. Fish and Wildlife Service’s motion for voluntary remand of a challenge to the agency’s October 2020 withdrawal of a 2013 proposal to list wolverines living in the contiguous United States as threatened under the Endangered Species Act. The court, however, vacated the withdrawal, rejecting the FWS’s request that it be left in place. The court found that the seriousness of the withdrawal’s deficiencies weighed in favor of vacatur and that the FWS did not show that the disruptive consequences outweighed the benefits of vacatur. The FWS requested remand to reevaluate the withdrawal in light of the Ninth Circuit’s 2021 decision concerning the meaning of “foreseeable future” and in light of new studies that “undercut the agency’s reliance on Canadian wolverines to establish connectivity, genetic diversity, and population density.” The court—which previously remanded a 2014 withdrawal of the listing proposal for reevaluation of climate change and other threats to the wolverine—ordered the FWS to submit a new final listing determination for publication in the Federal Register within 18 months. Center for Biological Diversity v. Haaland, No. 20-cv-181 (D. Mont. May 26, 2022)

NGOs Voluntarily Dismissed Challenge to NHTSA Preemption Rule for Vehicle Greenhouse Gas Emissions

Five months after the National Highway Traffic Safety Administration (NHTSA) repealed its 2019 rule preempting state regulation of greenhouse gas emissions from vehicles, a coalition of non-governmental organizations (NGOs) voluntarily dismissed their district court complaint challenging the 2019 rule. Two other cases—one brought by states and the other by California air quality management districts—remained pending in the district court for the District of Columbia while the remaining plaintiffs and plaintiff-intervenors coordinated efforts to determine next steps. Challenges to the preemption rule also remain pending in the D.C. Circuit. California v. Chao, No. 1:19-cv-02826 (D.D.C. May 24, 2022)

Proposed Consent Decree Would Set Schedule for 2023 Renewable Fuel Standard Rule

On May 23, 2022, the U.S. Environmental Protection Agency (EPA) published notice of a proposed consent decree that would resolve a lawsuit filed by a biofuel trade association to compel EPA to promulgate a rule establishing Renewable Fuel Standard applicable volumes for the 2023 compliance year. The Clean Air Act requires promulgation of such rules “no later than 14 months before” the start of the compliance year (October 2021 in this case). The consent decree would set deadlines of September 16, 2022 for a proposed rule and April 28, 2023 for a final rule. EPA said it would take comments on the proposed consent decree until June 22, 2022. Growth Energy v. Regan, No. 1:22-cv-01191 (D.D.C. May 23, 2022)

Activists and City of Harrisburg Reached Interim Settlement for Climate Change Awareness Event to Proceed

Three weeks after a coalition of organizations planning a June gathering of climate activists and the public filed a lawsuit alleging that the City of Harrisburg, Pennsylvania’s system for regulating use of its traditional public forums violated the First Amendment, the plaintiffs and the City defendants agreed to an interim settlement that would permit the event to proceed. The defendants also agreed to negotiate with the plaintiffs regarding changes to the City’s ordinances and regulations regarding use of City parks, City streets, and other public forums for First Amendment-protected expressive activities. The litigation was stayed pending further order of the court. Better Path Coalition Planning Group v. City of Harrisburg, No. 1:22-cv-00623 (M.D. Pa. May 20, 2022)

Regional Network of Environmental Groups Dropped Challenge to Now-Lapsed Coal Council

Western Organization of Resource Councils (WORC) voluntarily dismissed a lawsuit it filed in 2020 to contest the U.S. Department of Energy’s (DOE’s) administration of the National Coal Council (NCC). In its complaint, WORC alleged that the NCC had “operated in secret and work[ed] to advance the goals of only one interest: the industries that profit from the development and combustion of coal.” WORC asserted that the NCC’s operations violated the Federal Advisory Committee Act. The notice of voluntary dismissal noted that DOE had notified the NCC’s chair in November 2021 that DOE would allow the NCC’s charter to lapse and that a new charter had been finalized and transmitted to Congress in February 2022. “Having reviewed the Department’s plans for the new National Advisory Committee on Coal,” WORC voluntarily dismissed the action with prejudice. Western Organization of Resource Councils v. Granholm, No. 4:20-cv-00098 (D. Mont. May 19, 2022).

Federal Court Vacated Approvals that Allowed Oil and Gas Development on Colorado’s Western Slope; Agencies to Conduct Additional Analysis of Greenhouse Gas Emissions

The federal district court for the District of Colorado vacated federal approvals of a master development plan for oil and gas development activities in the North Fork Valley of Colorado’s Western Slope. The federal agencies had filed a motion to remand without vacatur, reporting that additional review of the approval decisions had identified “substantial concerns” with the underlying NEPA analysis, “including the analysis of the potential impact of the new wells on emissions of greenhouse gasses such as methane.” The court granted remand, rejecting the mineral leaseholder’s argument that the agencies could not change course without supplying a “reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored.” The court found that the agencies’ decision to concede the plaintiff’s claims was not a reviewable action under the Administrative Procedure Act. On the issue of vacatur, the court found that the factors for determining whether to vacate an agency decision “do not point strongly in either direction” but that neither the agencies nor the mineral leaseholder established that the “atypical remedy” of remand without vacatur was appropriate. First, although there was “some possibility” the agencies would ultimately affirm the prior approvals, the defects identified by the plaintiffs—including understating methane emissions by 142%—were “serious and substantial.” Second, the court concluded that “some degree of disruption” to the mineral leaseholder seemed “inevitable” unless the leaseholder “is allowed to forge ahead unabated on the strength of a Plan that the Agencies concede was erroneously approved,” so that the “disruption of existing expectations” factor was neutral or tipped in favor of vacatur. Third, the “environmental harm during remand” factor was “mostly neutral” since the plaintiffs did not show that the effects of drilling during remand would be “sufficiently significant, on their own.” The court also rejected the argument that vacatur was not appropriate unless the court made a finding on the merits that the agencies’ decisions were unlawful. Citizens for a Healthy Community v. U.S. Department of Interior, No. 1:21-cv-01268 (D. Colo. May 19, 2022)

Alaska Federal Court Granted Remand Without Vacatur in Challenge to Road Project

The federal district court for the District of Alaska granted federal defendants’ motion for voluntary remand without vacatur of challenges to a road project in the Brooks Range in Alaska. The court found that remand was appropriate because the defendants had committed to taking further action with respect to challenged agency decisions, the potential issues identified by the federal defendants were “substantial and legitimate,” and there was no indication the federal defendants were acting in bad faith. The court rejected the plaintiffs’ contention that it could not remand the case because the federal defendants did not commit to addressing each of the plaintiffs’ claims. The court ordered the remand without vacatur both because it was not convinced it had authority to vacate the challenged actions absent a determination on the merits and also because the court found vacatur was not necessary to avoid prejudice to the plaintiffs and harm to the environment during the remand period. Plaintiffs filed a motion for reconsideration requesting that the court at least allow them to proceed with claims against the U.S. Army Corps of Engineers. Northern Alaska Environmental Center v. Haaland, No. 3:20-cv-00187 (D. Alaska May 17, 2022); Alatna Village Council v. Haaland, No. 3:20-cv-00253 (D. Alaska May 17, 2022)

California Federal Court Found Greenpeace Standing Allegations to Be Deficient in Plastics Suit Against Walmart

The federal district court for the Northern District of California dismissed Greenpeace’s lawsuit alleging that Walmart’s marketing of plastic and plastic-packaged products as recyclable violated California’s Unfair Competition Law. The complaint’s allegations included that plastic pollution “is accompanied by an array of negative side effects,” including emissions of “large amounts of methane.” The court found that Greenpeace failed to sufficiently allege an “informational injury” or an injury based on future diversions of resources for purposes of Article III standing. However, the court granted Greenpeace leave to amend to supplement its standing allegations. Greenpeace, Inc. v. Walmart Inc., No. 3:21-cv-00754 (N.D. Cal. May 10, 2022)

Montana Federal Court Approved Settlement in Lynx Critical Habitat Case

The federal district court for the District of Montana approved a settlement agreement that set a timeline for the U.S. Fish and Wildlife Service to propose and finalize a revised critical habitat rule for the threatened Canada lynx, a species whose population in the United States is threatened by climate change. In the lawsuit, the plaintiffs sought to compel the FWS to comply with the court’s September 2016 order remanding a 2014 critical habitat rule. However, the FWS completed a Species Status Assessment (SSA) and determined in November 2017 that the lynx no longer warranted protection under the Endangered Species Act. The FWS therefore did not reevaluate critical habitat for the lynx after that time. The settlement agreement indicated that the FWS no longer intended to propose to delist the lynx and would instead reevaluate the 2014 critical habitat rule and also review and update its 2017 SSA. Pursuant to the settlement, the FWS will submit a proposed critical habitat rule to the Federal Register by November 21, 2024 and will submit a final rule within the statutory timeline. WildEarth Guardians v. Williams, No. 9:20-cv-00097 (D. Mont. Apr. 25, 2022)

New Utility Owner Agreed to Decarbonization Terms in Settlement with Rhode Island Attorney General

The Rhode Island Attorney General and the purchaser of the Narragansett Electric Company reached an agreement to resolve the Attorney General’s appeal of the Rhode Island Division of Public Utilities and Carriers’ approval of the sale of the electric and natural gas utility. The settlement agreement included “Additional Commitments” that are binding and enforceable, including terms and conditions regarding decarbonization goals. The decarbonization terms include requirements for preparation of a report assessing the utility’s role in meeting requirements of Rhode Island’s 2021 Act on Climate and for presentation of a long-term strategy for the gas distribution system in light of the Act on Climate. Other settlement terms related to procedures for distributed energy resources interconnection and contributions to a renewable energy fund and to the Attorney General to retain experts to review the utility’s Act on Climate report or to support the Attorney General’s participation in any docket concerning the gas distribution business. Neronha v. Rhode Island Division of Public Utilities & Carriers, No. PC-2022-01095 (R.I. Super. Ct.)

Wisconsin State Court Upheld Natural Gas Power Plant Approval

A Wisconsin Circuit Court upheld the Wisconsin Public Service Commission’s decision approving a Certificate of Public Convenience and Necessity (CPCN) for the Nemadji Trail Energy Center, a proposed 625-megawatt natural gas-powered generating facility. Madison.com reported that the court rejected arguments that the Commission failed to fully consider the power plant’s environmental impacts. Clean Wisconsin, Inc. v. Public Service Commission, No. 2020CV000585 (Wis. Cir. Ct. May 17, 2022).

California Court Dismissed Lawsuit Alleging Illegal De Facto Ban on Fracking

A California Superior Court dismissed Kern County’s lawsuit alleging that California Governor Gavin Newsom improperly directed the California Geologic Energy Management Division (CalGEM) to implement bans or moratoriums on well stimulation treatment (such as hydraulic fracturing) permit approvals and high pressure cyclic steam permits for recovering hydrocarbon resources. The County contended that CalGEM’s denial of certain permits had been “premised on vague and unsubstantiated assertions … that denying in-state production permits is necessary ‘to protect public health and safety and environmental quality, including [the] reduction and mitigation of greenhouse gas emissions associated with the development of hydrocarbon … resources.’” Bakersfield.com reported that the court found that the lawsuit was a SLAPP (Strategic Lawsuit Against Public Participation) lawsuit that would “impermissibly limit [the governor’s] public statements and/or prevent him from fulfilling his executive duties.” County of Kern v. Newsom, No. __ (Cal. Super. Ct. Apr. 5, 2022)

New York Appellate Court Upheld Environmental Review for Multi-Use Development

The New York Supreme Court, Appellate Division, upheld the State Environmental Quality Review Act review of a plan to develop commercial space (including a Costco) and apartments in the Town of Guilderland. The court found that the Town Planning Board “took the requisite hard look at the potential environmental impacts of concern to petitioner and offered thorough explanations for its determination.” The court was not persuaded by the petitioner’s arguments, including climate change-related arguments. With respect to climate change, the court found that the Planning Board’s review “thoroughly assessed” the project’s air quality impacts and noted the Board’s finding that potential development was “too limited in scope to have a significant impact on global climate change,” that the project’s accessibility by existing roadways and public transit made it “consistent with land use planning aimed at reducing greenhouse gas emissions,” and that “a net reduction in emissions was possible in view of the fact that apartment dwellers at the project could walk or rely more upon public transit given the project’s location, and that Costco patrons, who presently travel 87 miles to the nearest Costco, would drive less if a local Costco were built.” Save the Pine Bush, Inc. v. Town of Guilderland, No. 534176 (N.Y. App. Div. May 5, 2022)

 

NEW CASES, MOTIONS, AND OTHER FILINGS

Third Circuit to Hear Oral Argument in Hoboken and Delaware Climate Cases; Rehearing Sought in San Mateo Case

In addition to the decisions discussed above, the following appellate-level developments have occurred in climate change nuisance and consumer/investor protection cases against energy companies:

• Justice Gorsuch granted an application to extend the time for filing a petition for writ of certiorari seeking review of the Tenth Circuit’s opinion affirming the remand order in the case brought by Boulder County, the City of Boulder, and San Miguel County. Justice Gorsuch extended the time to file until June 8, 2022. On May 26, the fossil fuel companies requested that the time to file be extended until July 8, which the companies said would allow them “to sharpen the issues for review.” Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County, No. 21A662 (U.S.)
• On May 17, 2022, energy companies filed a petition for rehearing en banc of the Ninth Circuit’s decision remanding cases brought by County of San Mateo and other California local governments. The companies argued that the panel’s decision conflicted with the Second Circuit’s decision in New York City’s case against energy companies and was “irreconcilable” with Supreme Court precedent recognizing that only federal law may govern controversies concerning interstate pollution. They also contended that the panel’s application of the well-pleaded complaint rule was at odds with decisions of other courts of appeals. The National Association of Manufacturers, 15 states led by Indiana, and the U.S. Chamber of Commerce filed amicus briefs in support of rehearing en banc. County of San Mateo v. Chevron Corp., Nos. 18-15499, 18-15502, 18-15503, 18-16376 (9th Cir. May 17, 2022)
• After the Ninth Circuit affirmed the remand orders in County of San Mateo v. Chevron Corp., energy industry defendants-appellants submitted a letter to the Ninth Circuit in Honolulu’s and Maui’s cases arguing that the “significantly expanded record” in these cases included evidence that cured deficiencies that the San Mateo identified in the basis for federal-officer removal. The companies also said expert evidence in the record in the Honolulu and Maui cases supported removal under the Outer Continental Shelf Lands Act (OCSLA). The plaintiffs responded that the Ninth Circuit had rejected the same arguments for OCSLA jurisdiction that the defendants advanced. The plaintiffs also argued that the San Mateo OCSLA analysis confirmed that the defendants failed to establish the “nexus” prong for federal-officer removal, and that the defendants’ new evidence “rehashes” the same sorts of arrangements and relationships that the San Mateo decision rejected as a basis for federal-officer removal. City & County of Honolulu v. Sunoco LP, No. 21-15313 (9th Cir.)
• The Third Circuit is scheduled to hear oral arguments on June 21, 2022 in the energy companies’ appeals of remand orders in cases brought by the City of Hoboken and the State of Delaware. Delaware v. BP America Inc., No. 22-1096 (3d Cir. May 12, 2022)

Youth Plaintiffs Filed Lawsuit Alleging Hawai‘i State Transportation System Violated Constitutional Environmental Protections

Fourteen young people filed a lawsuit in Hawai‘i Circuit Court alleging that establishment, operation, and maintenance of Hawai‘i’s state transportation system violates the Hawai‘i Constitution’s public trust doctrine and infringes on the right provided by the Hawai‘i Constitution to a clean and healthful environment as defined by a “growing body” of Hawai‘i laws that seek to reduce greenhouse gas emissions. The defendants are the Hawai‘i Department of Transportation (HDOT), HDOT’s Director, Governor David Ige, and the State of Hawai‘i. The youth plaintiffs alleged that the defendants are responsible for “high and untenable levels of greenhouse gas emissions because they have engaged in an ongoing pattern and practice of promoting, funding, and implementing transportation projects that lock in and escalate the use of fossil fuels, rather than projects that mitigate and reduce emissions,” including by prioritizing infrastructure projects such as highway construction and expansion. The plaintiffs’ allegations also included that HDOT did not cooperate or coordinate with other agencies to meet Hawai‘i’s greenhouse gas reduction goals, including a 2045 Zero Emissions Target established by state law in 2021, and that HDOT failed to mitigate greenhouse gas emissions from its own operations. The plaintiffs requested declaratory relief and also injunctive relief in the form of an order directing the defendants to cease establishing, maintaining, and operating the transportation system in a manner that breaches the defendants’ constitutional obligations and compelling the defendants to take “concrete action steps under prescribed deadlines” to conform the transportation system to the defendants’ constitutional duties. They also asked the court to exercise continuing jurisdiction and oversight, including through appointment of special master. Navahine F. v. Hawai‘i Department of Transportation, No. 1CCV-22-0000631 (Haw. Cir. Ct., filed June 1, 2022)

Environmental Groups Challenged Channel Expansion Project on Texas Coast

Five environmental groups filed a lawsuit in the federal district court for the District of Columbia alleging that U.S. Army Corps of Engineers authorizations for a federal channel deepening and expansion project in the Matagorda Ship Channel near Port Lavaca, Texas, violated NEPA and the Clean Water Act. The allegations included that the Corps was required to prepare a supplemental environmental impact statement (EIS) to consider, among other things, the potential greenhouse gas emissions and national climate policy implications of a major new crude export site that was announced after issuance of the final EIS and which would be facilitated by the channel expansion project. The plaintiffs also alleged that the final EIS’s cost-benefit analysis did not consider certain categories of costs, including climate impacts. San Antonio Bay Estuarine Waterkeeper v. Connor, No. 1:22-cv-01470 (D.D.C., filed May 25, 2022)

Lawsuit Challenging Commercial Spaceport Raised Concerns About Climate Change Impacts

In an action filed in the federal district court for the District of Columbia, plaintiffs challenged the Federal Aviation Administration’s (FAA’s) issuance of a launch site operator license for operation of a proposed commercial spaceport in Camden County, Georgia. The plaintiffs alleged that rockets would launch directly over the Cumberland Island National Seashore as well as populated areas. The complaint asserted claims under NEPA, FAA regulations for launch sites, Section 4(f) of the Department of Transportation Act, the Cumberland Island National Seashore Enabling Legislation, and Section 106 of the National Historic Preservation Act. The NEPA allegations included that the EIS failed to adequately evaluate risk posed to the site by sea level rise and storm surge events and that the EIS’s mitigation measures to address the effects of climate change were “undefined, incomplete, and speculative.” National Parks Conservation Association v. Federal Aviation Administration, No. 1:22-cv-01408 (D.D.C., filed May 19, 2022)

Lawsuits Challenged EPA Reinstatement of California Waiver for Motor Vehicle Greenhouse Gas Emissions Regulation

Four petitions for review were filed in the D.C. Circuit Court of Appeals challenging EPA’s action reinstating the waiver allowing California to regulate greenhouse gas emissions from motor vehicles. The petitions were filed by (1) 17 states led by Ohio; (2) the Soybean Associations for the States of Iowa, Minnesota, and South Dakota, and Diamond Alternative Energy, LLC, a subsidiary of Valero Energy Corporation; (3) American Fuel & Petrochemical Manufacturers, Domestic Energy Producers Alliance, Energy Marketers of America, and National Association of Convenience Stores; and (4) Clean Fuels Development Coalition and six other petitioners that described themselves as “part of the renewable fuel industry and … specifically focused on the production and sale of corn ethanol.” Twenty states, the District of Columbia, Los Angeles, and New York City moved to intervene in support of EPA, as did 10 nongovernmental organizations that identified themselves as “public interest organizations.” Ohio v. EPA, Nos. 22-1081, 22-1083, 22-1084, 22-1085 (D.C. Cir., filed May 12 and 13, 2022)

Environmental Group Brought FOIA Suit Against State Department Seeking Information on Energy Security Task Force

Friends of the Earth (FoE) filed a Freedom of Information Act (FOIA) lawsuit against the U.S. Department of State in the federal district court for the District of Columbia in connection with its request for information related to the Joint Task Force on Energy Security created by the United States and European Union approximately a month after Russia’s invasion of Ukraine. In particular, FoE sought ethics documentation, communications, and calendar entries for a “leading member” of the Task Force whom FoE alleged had “close ties” to the natural gas industry. FoE alleged that the Task Force had two primary goals: “(1) to diversify LNG supplies in alignment with climate objectives; and (2) to reduce demand for natural gas.” FoE further alleged that the Task Force’s work was characterized by a “lack of transparency” that “underscored serious concerns that the Task Force may be subject to influence and pressure from fossil industry representatives.” FoE alleged that there was an “urgent need” for the information sought, including because the Task Force was meeting “in secret to discuss a wide-range of policies and commit to long-term courses of action with potentially dire and irreversible implications for climate change and the future of sustainable energy in the United States and abroad.” FoE charged that the State Department had violated FOIA by denying its request for expedited processing and failing to provide any explanation for its denial and by failing to provide all non-exempt information to the plaintiffs. Friends of the Earth v. U.S. Department of State, No. 1:22-cv-01518 (D.D.C., filed May 31, 2022)

Center for Biological Diversity Sought to Compel Listing Determination on Dunes Sagebrush Lizard

Center for Biological Diversity (CBD) filed a lawsuit in the federal district court for the District of New Mexico challenging the U.S. Fish and Wildlife Service’s alleged failure to publish a 12-month finding in response to CBD’s petition to list the dunes sagebrush lizard under the Endangered Species Act. CBD alleged that impacts from climate change were among the threats faced by the lizard. CBD asked the court to declare that the FWS had violated the Endangered Species Act and to require the FWS to publish a 12-month listing determination by a date certain. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 1:22-cv-00387 (D.N.M., filed May 19, 2022)

Exxon Challenged Denial of Permit for Trucking Oil from Off Coast of Santa Barbara County

In a lawsuit filed in the federal district court for the Central District of California, Exxon Mobil Corporation challenged the Santa Barbara County Board of Supervisors’ denial of a permit that would allow Exxon to temporarily truck crude oil from Exxon’s Santa Ynez Unit, which the complaint described as consisting of three offshore platforms and an onshore processing center. Exxon alleged that the permit would allow it to restart operations at the Santa Ynez Unit, which was forced to shut down operations after two pipelines ruptured in 2015. Exxon asserted that denial of the permit was based on “reasons completely unrelated to its merits” and “deprive[d] consumers of a local, lower-carbon-intensive, and more heavily regulated energy source than the foreign-produced oil and gas that must now satisfy consumer demand” because the Santa Ynez Unit’s oil “has less than half the carbon intensity of oil imported from overseas.” Exxon further alleged that Board comments regarding the transition to renewable energy and climate change risks showed that the Board had improperly turned its consideration of the project “into a referendum on the production, transportation, and use of oil in and off the coast of Santa Barbara County.” Exxon asserted that denial of the permit was arbitrary, capricious, and unlawful and that the Board had disregarded limits on review imposed by the California Environmental Quality Act. Exxon also asserted that the denial was an unconstitutional taking, violated the Commerce Clause, violated the California Constitution, and was an invalid exercise of police power. Exxon Mobil Corp. v. Santa Barbara County Board of Supervisors, No. 2:22-cv-03225 (C.D. Cal., filed May 11, 2022)

Lawsuit Sought to Compel EPA to Reinitiate Consultation on Indian River Lagoon Water Quality Standards to Assess Effects on Florida Manatee and Other Species

Three conservation groups filed a lawsuit in the federal district court for the Middle District of Florida alleging that EPA violated the Endangered Species Act by failing to reinitiate consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service on the effects of water quality standards/total maximum daily loads (TMDLs) for the Indian River Lagoon on the Florida manatee, green and loggerhead sea turtles, and smalltooth sawfish. The plaintiffs alleged that the Lagoon was “currently suffering ecologic collapse,” with more than thousand manatees dying in Florida in 2021, and that the “[t]he root of the problem is deteriorating water quality” due to excess nitrogen and phosphorus pollution. The complaint said EPA approved Florida’s 2009 TMDLs as water quality standards for the Lagoon in 2013 and refused a 2021 request by the FWS to reinitiate consultation based on new information about algal outbreaks killing seagrass and resulting in the starvation of manatees. The plaintiffs alleged that EPA was required to reinitiate consultation in response to new information about the connection between the pollution and the mass manatee die-off, as well as other new information, including information about lack of compliance with or enforcement of TMDLs and about the failure of TMDLs to account for the impacts of climate change. Save the Manatee Club v. EPA, No. 6:22-cv-00868 (M.D. Fla., filed May 10, 2022)

FOIA Lawsuit Sought Documents from Office of Science and Technology Policy About Event on Countering Climate Change Denial

Energy Policy Advocates filed a FOIA lawsuit against the White House Office of Science and Technology Policy (OSTP) alleging that OSTP improperly denied the organization access to records related to an OSTP “event on countering climate change denial and delay” and a Politico article entitled “How a Google billionaire helped pay for Biden’s science office.” The organization alleged that the requested records “will inform the public of high-profile ethics revelations at OSTP and media coverage thereof, and also the genesis of a tendentious event and campaign out of OSTP” to characterize political opposition as “disinformation.” Energy Policy Advocates v. White House Office of Science & Technology Policy, No. 22-cv-1251 (D.D.C., filed May 5, 2022)

FOIA Lawsuit Sought Full Disclosure of TVA Contracts with Gas Companies

Southern Environmental Law Center (SELC) filed a FOIA lawsuit against the Tennessee Valley Authority (TVA) seeking to compel full disclosure of information about TVA’s contracts with gas companies regarding planned methane infrastructure projects. SELC contended that TVA improperly redacted large portions of the two contracts it provided, claiming that FOIA’s Exemptions 4 and 5 applied. Exemption 4 permits withholding of “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Exemption 5 authorizes withholding of “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” SELC alleged that the redacted contractual provisions contained information needed for SELC “to continue to fully participate in public decision-making processes about TVA’s power generation decisions, and to determine whether TVA has complied with the National Environmental Policy Act (NEPA) in connection with its plan to build new gas plants.” Southern Environmental Law Center v. Tennessee Valley Authority, No. 22-cv-108 (E.D. Tenn., filed Mar. 24, 2022)

Lawsuit Challenged New York City Caps on Carbon Emissions from Buildings

Two New York City co-ops, two shareholders and residents of the co-ops, and the owner of a mixed-use rental building filed a lawsuit in New York Supreme Court alleging that the City’s Local Law 97—which establishes carbon emission caps for existing buildings—was preempted by New York State’s Climate Leadership and Community Protection Act (CLCPA) and unconstitutional. The plaintiffs claimed that by “set[ting] ambitious targets for the reduction of greenhouse gas emissions statewide and lay[ing] out a clear and all-encompassing plan” for meeting those targets, the CLCPA fully occupied the field of regulating greenhouse gas emissions and preempted Local Law 97 in its entirety. The complaint also asserted that Local Law 97’s “excessive ‘penalties’” violated due process, that the law was unconstitutionally retroactive, that it was impermissibly vague and ambiguous in violation of due process, and that it was in effect an unauthorized and improper tax on greenhouse gas emissions. Glen Oaks Village Owners Inc. v. City of New York, No. 154327/2022 (N.Y. Sup. Ct., filed May 18, 2022)

Environmental Groups Challenged Biofuels Project at Existing Refinery in California

Three environmental groups filed a lawsuit in California Superior Court challenging the Paramount City Council’s environmental review for a biofuels project at an existing refinery site that the groups alleged was located in the middle of a residential area and adjacent to three schools. The groups alleged that the City violated the California Environmental Quality Act, including by failing to adequately address potential climate change impacts. In particular, the groups contended that the City failed to adequately evaluate “the environmental and climate impacts that will result from competition for limited quantities of feedstock and increases in oil crop production or foreign imports that are associated with current biofuel trends.” The groups said land use changes to produce feedstocks for biofuels could increase greenhouse gas emissions and cause other impacts. In addition, the groups alleged that the final supplemental environmental impact report (SEIR) used an outdated threshold to analyze the project’s climate change impacts. The petition also asserted that the final SEIR failed to adequately mitigate the project’s climate change impacts from greenhouse gas emissions during construction and operations and instead relied on California’s cap-and-trade program to mitigate the project’s emissions even after the program’s 2030 expiration date. Communities for a Better Environment v. City of Paramount, No. __ (Cal. Super. Ct., filed May 16, 2022)

Citing Health and Climate Impacts, New York Attorney General Sued School Bus Contractors for Unlawful Idling

New York State Attorney General Letitia James filed a lawsuit alleging that three school bus contractors for New York City violated New York State and New York City restrictions on idling vehicles. The complaint alleged that emissions from the idling buses “both harm public health and contribute to climate change.” The State asked the court to direct the companies to ensure their buses comply with legal limits on idling, to require the companies to implement education and training for their management and employees regarding the health and environmental effects of exhaust and the idling laws and regulations, to require that the companies monitor compliance with idling laws, and to impose civil penalties. People v. Jofaz Transportation, Inc., No. 513822-2022 (N.Y. Sup. Ct., filed May 11, 2022)

 

HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART

FEATURED CASE

Philippines Commission on Human Rights Published Final Report on Carbon Majors’ Responsibility for Climate Change

In 2015, Greenpeace Southeast Asia and numerous other organizations and individuals filed a petition asking the Commission on Human Rights of the Philippines (CHR) to investigate a general issue—“the human rights implications of climate change and ocean acidification and the resulting rights violations in the Philippines”—and a more specific one—“whether the investor-owned Carbon Majors have breached their responsibilities to respect the rights of the Filipino people.” In 2017, the Commission accepted the petition and confirmed that they would investigate the potential human rights violations stemming from major fossil fuel companies’ contributions to climate change. On May 6, 2022, CHR issued the final report of its multi-year investigation into 47 investor-owned corporations for human rights harms that result from their actions triggering climate change. Major findings in the report include: (i) Carbon Majors’ products contributed to 21.4% of global emissions. The Carbon Majors had early awareness, notice, or knowledge of their products’ adverse impacts on the environment and climate system in 1965, at the latest; (ii) Carbon Majors, directly by themselves or indirectly through others, singly and/or through concerted action, engaged in willful obfuscation of climate science, which has prejudiced the right of the public to make informed decisions about their products, concealing that their products posed significant harms to the environment and the climate system; (iii) in addition to liability anchored on acts of obfuscation of climate science, fossil-based companies may also be held to account by their shareholders for continued investments in oil explorations for largely speculative purposes; (iv) all acts to obfuscate climate science and delay, derail, or obstruct this transition may be a basis for liability; (v) Carbon Majors have the corporate responsibility to undertake human rights due diligence and provide remediation. Business enterprises, including their value chains, doing business in, or by some other reason within the jurisdiction of, the Philippines, may be compelled to undertake human rights due diligence and held accountable for failure to remediate human rights abuses arising from their business operations. In re Greenpeace Southeast Asia and Others (Philippines, Commission on Human Rights)

 

DECISIONS & SETTLEMENTS 

Chile’s Court of Appeals Rejected Challenge to Thermoelectric Power Plant Contrary to Chile’s Decarbonization Policy on Procedural Grounds

On November 25, 2021, the residents of Huasco, headed by a group of women, filed a constitutional action against the State of Chile. In their claim, they demand the shutdown of two units of the thermoelectric power plant AES Gener Guacolda. The plaintiffs indicate that while Chile is a party to the Paris Agreement and has recently approved an agreement on the decarbonization of coal-fired power plants, it still decided—without justification—that the closure of Guacolda will only take place in 2040. The plaintiffs claim that the decision violates their constitutional rights to life, to live in an environment free of pollution, and to equality before the law. According to them, the power plant’s emissions are affecting the health of residents and neighbors of Huasco. They request a plan from the government to mandate the shutdown of the two units of the thermoelectric power plant and a compensation plan for the harmful emissions. In its response, the Government of Chile requested the dismissal of the complaint as it argued there was no breach of fundamental rights. The government explained that decarbonization is voluntary for both the executive branch and the private companies. They point out that the Ministry of Energy’s Decree No. 50/2020, approving the decarbonization agreement, is an administrative act that is constantly updated. Further, the decision to close the power plant relies on a combination of factors. On May 2, 2022, the Court of Appeals of Copiapo rejected the claim on procedural grounds. The Court found that the matter in question was beyond its competence, as it involved the exercise of powers belonging to the executive branch. The thermoelectric closure is a complex process involving different factors and not just the executive government. The plaintiffs brought an appeal before the Supreme Court to review the case. Women from Huasco and Others v. the Government of Chile, Ministry of Energy, Environment and Health (Chile, Court of Appeal of Copiapo)

French Court of Cassation Determined that Any Interested Party May Ask Judge for Investigative Measure to Access Evidence in Potential Case Concerning Environmental and Climate Damage in Democratic Republic of Congo

Sherpa and Friends of the Earth France intend to bring legal action against Perenco, a French oil company specialized in the optimization of previously exploited oil wells, with activities throughout Africa, for reported pollution and environmental damage in the Democratic Republic of Congo (DRC). Given the opacity of the operations and organization of the oil multinational, they have first initiated an action under the French Code of Civil Procedure to obtain more evidence of the link between Perenco France and the companies operating locally in the DRC. In 2019, Sherpa and Friends of the Earth France requested authorization to access internal documents of the company Perenco, to determine its role in activities denounced as harmful to the environment in the DRC. The Tribunal de Grande Instance of Paris and then the Paris Court of Appeal denied their request on September 17, 2020. Sherpa and Friends of the Earth France appealed to the Court of Cassation. On March 9, 2022, the Court of Cassation ruled in favor of the associations. The Court of Cassation held that (i) any interested party may ask the French judge for an investigative measure if there is a legitimate reason to preserve or establish, before any proceedings, evidence which could be relevant to the resolution of a dispute, provided that the action envisaged is not manifestly inadmissible and would not be contrary to the law or doomed to failure; (ii) with regard to the conflict of laws, a claimant for compensation for environmental damage or subsequent damage may choose to invoke either the law of the country in which the damage occurred or the law of the country in which the event giving rise to the damage occurred, and here, in the case of environmental damage suffered in the DRC due to the de facto control and dominant influence of the company whose head office is in France over the companies of the group operating in the DRC, the event giving rise to the damage is located in France; and (iii) therefore, the right to request any measures to preserve or establish evidence that could be relevant to the outcome of a case with a view to holding a company, whose registered office is located in France, liable for environmental damage observed abroad, is defined in the lex fori. The lex fori (or law of the forum) is an international law principle, which provides that the law of the jurisdiction or venue in which a legal action is brought applies. Amis de la Terre and Sherpa v Perenco (France, Paris, Court of Appeal)

Chilean Supreme Court Ruled that Climate Change Should Be Considered in Environmental Assessment

On September 9, 2021, the Mejillones Tourist Services Association and other local community organizations brought a constitutional action before the Court of Appeals of Antofagasta challenging the rejection by the Environmental Assessment Service of Antofagasta (EAS) of inclusion of climate change impacts in the revision of an older environmental permit of a thermoelectric power plant. The plaintiffs claimed that the lack of consideration of climate change violated their constitutional rights to life, equality before the law, the right to live in an environment free of pollution, and property rights. On August 31, 2021, the Court of Appeals of Antofagasta rejected the plaintiff’s claim on separation of powers grounds. The plaintiffs subsequently appealed the decision. On April 19, 2022, the Chilean Supreme Court overruled the decision of the Court of Appeals and upheld the plaintiff’s appeal. The ruling orders the environmental impact assessment to include climate change impacts in the review process of the project’s environmental permit. The Supreme Court understood that Chile’s general environmental law allows this review, including by adding new parameters not previously considered when granting the original environmental permit, including climate change considerations. The judgment expressly mentions Chile’s obligations under the UNFCCC. Therefore, the EAS must initiate an analysis of climate change impacts. Mejillones Tourist Service Association and others with the Environmental Evaluation Service (SEA) of Antofagasta (Chile, Court of Appeal of Antofagasta)

Claims Related to UK’s Transportation Policies Refused Permission to Proceed

In 2020, a series of three linked legal challenges were brought by environmental NGO Transport Action Network (TAN) related to the UK’s road building policies. TAN argued the UK government acted unlawfully by not suspending and reviewing its “National Policy Statement on National Networks,” given what TAN claimed were significant changes in climate law and policy since the policy’s designation in 2014. The policy statement sets the strategy for the UK’s road building program. The government has powers to suspend and review policy statements under the Planning Act 2008, and must take into account certain criteria when doing so. TAN began with a series of pre-action letters, available on its website. They included requests to the government to suspend and review the policy statement in light of, among other matters, the new statutory target of net zero UK emissions by 2050. In October 2020, the government decided a review was not appropriate. This resulted in TAN’s first claim for judicial review (CO/4575/2020). That claim was then stayed as the government had stated that it would reconsider whether a review was appropriate. In February 2021, the government decided, for a second time, a review was not appropriate. This resulted in TAN’s second claim for judicial review, issued in April 2021 (CO/1482/2021). However, that claim became theoretical when the government made a fresh decision, in July 2021, to conduct a review, partly because of the increased stringency of climate change targets and policy. Nonetheless, the government declined to exercise its statutory power to suspend the policy statement pending its review. This resulted in TAN’s third claim for judicial review, issued in September 2021 (CO/3011/2021), specifically challenging the decision not to suspend the policy statement. The High Court refused permission for that claim to proceed to a full hearing (first on the papers, and then following a permission hearing), bringing the legal challenges to an end. Transport Action Network v. Secretary of State for Transport (on National Policy Statement) (United Kingdom, High Court of Justice)

UK’s Net Zero Case Granted Permission to Proceed

On October 19, 2021, the Secretary of State for Business Energy and Industrial Strategy (Kwasi Kwarteng; the “SoS”) adopted the Net Zero Strategy (NZS) and the Heat and Buildings Strategy (HBS). The NZS is the UK government’s economy-wide decarbonization strategy, and the HBS is the specific strategy for decarbonizing heating and homes. On January 12, 2022, Friends of the Earth England Wales and Northern Ireland (FoE) filed a claim for judicial review against the SoS, in relation to the NZS and the HBS, arguing that both strategies were unlawfully adopted. The environmental legal charity ClientEarth, and the NGO Good Law Project, filed separate judicial review challenges to the NZS in the week commencing January 17, 2022, arguing that the NZS violates the Climate Change Act 2008. FoE, along with ClientEarth and Good Law Project, received permission to proceed on all grounds on March 1, 2022. The court found that the cases all had realistic prospects of success, and merited a full substantive hearing. The grounds from all organizations will be heard together. A hearing is taking place in June 2022. A separate claim, unrelated to the cases issued by FoE, ClientEarth, and Good Law Project, was brought by claimants, Aghaji and Garforth, against the Government’s NZS alleging that the proposals and policies set out are insufficient to meet the UK’s sixth carbon budget. The claimants filed for judicial review in late March 2022 and are currently awaiting a decision on whether they have permission to proceed to a full hearing. R (oao Friends of the Earth) v Secretary of State for Business Energy and Industrial Strategy (UK, High Court of Justice)

Italy’s OECD National Contact Point Held that It Does Not Have Jurisdiction to Hear Claim Against Automaker’s Activities in Democratic Republic of Congo

On April 4, 2022, FOCSIV and many other Italian associations submitted a specific instance to the National Contact Point on the OECD Guidelines for Multinational Enterprises at the Italian Ministry on Economic Development. It was addressed to FCA Italy, a leading Italian company in the automotive sector and part of Stellantis NV. The need for decarbonization and ecological transition is pushing the automotive sector to increase production of electric cars. This increase, in turn, is boosting the demand for raw materials needed to produce lithium-ion rechargeable batteries. Cobalt is one such material and a high percentage of it comes from the Democratic Republic of Congo (DRC), where serious human rights violations have been reported in mining operations. The applicants claim that FCA Italy, which purchases an increasing amount of cobalt from the DRC, is failing to provide adequate information about its suppliers, contrary to the relevant provisions of the OECD Guidelines for Multinational Enterprises. On April 11, 2022, the Italian National Contact Point held that it does not have territorial jurisdiction to hear the case, as the FCA’s parent company Stellantis NV is based in the Netherlands. The applicants are preparing a new application to submit to the Dutch National Contact Point. FOCSIV and others v. FCA Italy (Stellantis NV) (Italy, OECD National Contact Point)

Milieudefensie Warned Shell’s Board of Directors of Risk of Personal Liability for Failure to Comply with Court’s Decision

On April 25, 2022, Milieudefensie sent a letter to Shell’s Board of Directors calling for urgent action to comply with the Hague District Court’s verdict of May 26, 2021 directing Shell to reduce its emissions by 45% by 2030, and warning of personal liability risks towards third parties resulting from a failure to act. Milieudefensie et al. v. Royal Dutch Shell plc. (Netherlands, The Hague District Court)

Citizen’s Committee on the Kobe Coal-Fired Power Plant Appealed Decision from High Court to Supreme Court

On May 6, 2022, the Kobe citizens challenging the Notice of Finalization issued by the Minister of Economy, Trade and Industry, concerning the construction plan of the new coal-fired Units filed a final appeal to the Osaka High Court’s April decision. The citizens asked the Supreme Court to reverse the decision, which rejected the request to revoke the Notice of Finalization and found that the interests of the appellants do not include climate damage and that CO2 emissions are not recognized as a legally protected interest in the current society. Citizens’ Committee on the Kobe Coal-Fired Power Plant v. Japan (Japan, Osaka High Court)

UK’s Pension Fund Case Awaiting Decision

On February 28, 2022, a decision granting permission to proceed to full hearing was handed down from the UK High Court in a case concerning whether the investments in fossil fuels by a large pension fund in the UK breach the directors’ fiduciary duties and duties towards contributors of the pension fund. A new hearing date was decided for March 28, 2022, four days before the scheduled pension cuts. The case is now awaiting a decision. Ewan McGaughey et al v Universities Superannuation Scheme Limited (UK, High Court)

NEW CASES, MOTIONS, AND OTHER FILINGS

ClientEarth Brought Derivative Claim Against Shell’s Board of Directors for Failing to Consider Efforts Towards Achieving the Company’s Net Zero Policies

On March 15, 2022, ClientEarth issued a press release stating that they were taking a claim against the Board of Directors of Shell under sections 172 and 174 of the UK’s Companies Act. The legal environmental charity alleges that the Board of Shell has failed to implement a climate strategy that is in keeping with the Paris Agreement goal. The Companies Act section 172 states that companies have a duty to “act in the way he considers … would be most likely to promote the success of the company,” while section 174 states the “duty to exercise reasonable care, skill and diligence.” Despite Shell committing to being a net-zero company by 2050, ClientEarth’s analysis of Shell’s company strategy displays them exceeding this goal considerably, going so far as to add to a rise in emissions by 2030. This is thought to be the first UK case of its kind that has taken derivative action against a board of directors for failing to consider efforts towards achieving net zero. Client Earth is currently waiting on a response from the Shell Board of Directors. ClientEarth v Board of Directors of Shell (UK, High Court of Justice)