June 2023 Updates to the Climate Case Chart
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 #171:
Montana Supreme Court Declined to Intervene in Youth Plaintiffs’ Constitutional Climate Case Against State Defendants; Trial Began on June 12
On May 23, 2023, a Montana trial court dismissed youth plaintiffs’ constitutional claims challenging Montana’s statutory State Energy Policy, which was repealed in March 2023, but denied the State defendants’ motion for summary judgment on the plaintiffs’ other constitutional claims. These remaining claims challenge a provision of the Montana Environmental Policy Act (MEPA) that precludes consideration of climate change in environmental reviews. In April 2023, another court held that the MEPA provision in fact required consideration of the impacts of greenhouse gas emissions on Montana, but several weeks later the State enacted a provision that explicitly prohibits consideration of greenhouse gases in MEPA reviews. A two-week trial began on June 12.
With respect to challenge to the State Energy Policy, the court concluded that dismissal without prejudice was appropriate based on redressability and prudential standing issues, given that the relief contemplated was limited to a declaratory judgment on the constitutionality of statutory provisions. Regarding the plaintiffs’ other claims, the trial court first found that the plaintiffs set forth specific facts to show that their claimed injuries from climate change were “concrete, particularized, and distinguishable from the public generally.” The court said it was not dispositive that other Montanans likely experience similar injuries. The court further found that the plaintiffs set forth specific facts to establish both that there was a “reasonably close causal relationship between the State’s permitting of fossil fuel activities under MEPA, [greenhouse gas] emissions, climate change, and Plaintiffs’ alleged injuries” and that the court could grant relief (i.e., an order striking down the MEPA provision that precludes consideration of climate change) that would redress the injuries. In addition, the court found that there were no prudential concerns that would prevent the court from striking down the MEPA provision. The court also rejected the State defendants’ arguments that interpreting the Montana Constitution’s right to a clean and healthful environment to include a right to a stable climate system would lead to absurd results and “open the floodgates” for private litigation. The court also found that there were no unnamed indispensable parties in the lawsuit, rejecting contentions regarding the suit’s impacts on permitting for fossil fuel-related activities. In addition, the court rejected the State defendants’ argument that the legislature, not the judiciary, should be the arbiter of the MEPA provision’s constitutionality. The court found that the MEPA provision “clearly implicates Plaintiffs’ fundamental right to a clean and healthful environment” and said that “[w]hether Plaintiffs can prove standing and whether the statute can withstand strict scrutiny will be determined after trial.” The court also denied the State defendants’ summary judgment on the plaintiffs’ equal protection claim and on their claims under the Montana Constitution’s right to seek safety, health, and happiness and public trust doctrine. Regarding the equal protection claim, the court said that whether climate change and the MEPA provision affect youths disproportionately would be determined at trial. The court’s decision identified the following material facts as in dispute: (1) whether plaintiffs’ injuries are mischaracterized or inaccurate; (2) whether Montana’s greenhouse emissions can be measured incrementally; (3) whether climate change impacts to Montana’s environment can be measured incrementally; (4) whether climate impacts and effects in Montana can be attributed to Montana’s fossil fuel activities; and (5) whether a favorable judgment will influence the State’s conduct and alleviate plaintiffs’ injuries or prevent further injury. Held v. State, No. CDV-2020-307 (Mont. Dist. Ct. May 23, 2023)
On June 6, 2023, the Montana Supreme Court denied the State defendants’ request for a writ of supervisory control over the trial court to reverse its denial of the State’s motion. The Montana Supreme Court also declined to stay the trial court proceedings. The State defendants argued that a trial was unnecessary because no material facts found at trial would change the case’s legal outcome and because the 2023 amendments to MEPA to explicitly exclude consideration of greenhouse gases in MEPA reviews had removed the language that the plaintiffs challenged. The Supreme Court noted that supervisory control is an “extraordinary remedy” that cannot be used to circumvent the appeal process. The Supreme Court found that the State defendants did not demonstrate that the MEPA amendments altered the plaintiffs’ allegations or the theory of their MEPA-related claim. The Supreme Court also found that the State defendants did not provide a reason why the district court’s ruling could not be reviewed on appeal. State v. Montana First Judicial District Court, No. OP 23-0311 (Mont. June 6, 2023)
Oregon Federal Court Allowed Juliana Plaintiffs to Amend Complaint to Rectify Deficiency Identified by Ninth Circuit
More than three years after the Ninth Circuit Court of Appeals held that the plaintiffs in Juliana v. United States lacked standing for their claims that federal defendants violated their constitutionally protected rights to a stable climate system capable of sustaining human life, the federal district court for the District of Oregon granted the plaintiffs’ motion to amend their complaint to attempt to cure what the district court characterized as “a narrow deficiency with plaintiffs’ pleadings on redressability.” The district court concluded that the Ninth Circuit’s mandate did not require the court “to shut the courthouse doors” on the plaintiffs where the plaintiffs cited intervening precedent and made new factual allegations. In particular, the plaintiffs cited a 2021 Supreme Court decision that held that judicial ability to “to effectuate a partial remedy” satisfies the redressability requirement for standing. The plaintiffs contended that their amended allegations demonstrated that relief under the Declaratory Judgment Act would provide sufficient partial redress of their climate change-related injuries. The plaintiffs also omitted relief that the Ninth Circuit found to be outside the scope of judicial authority, including a request for an order requiring the defendants to develop and implement a remedial plan. The district court found that the proposed amendments were not futile, concluding that “a declaration that federal defendants’ energy policies violate plaintiffs’ constitutional rights would itself be significant relief” and that such relief was “squarely within the constitutional and statutory power of Article III courts to grant.” The court therefore found “that the complaint can be saved by amendment.” In a separate opinion and order, the court dropped the plaintiff Earth Guardians from the action pursuant to Federal Rule of Civil Procedure 21 and dismissed its claims without prejudice, as Earth Guardians requested. The court denied the federal defendants’ motion for entry of final judgment against Earth Guardians pursuant to Rule 54(b). The court found that judgment under Rule 54(b) would not be proper because the claims of Earth Guardians and the youth plaintiffs were “logically related, both from a factual and legal standpoint.” Juliana v. United States, No. 6:15-cv-01517 (D. Or. June 1, 2023)
DECISIONS AND SETTLEMENTS
On May 15, 2023, the U.S. Supreme Court denied fossil fuel companies’ petition for writ of certiorari seeking review of a Third Circuit Court of Appeals decision affirming remand orders in climate change cases brought against the companies by the City of Hoboken and the State of Delaware. Justice Alito did not take part in the consideration or decision of the petition. The petition presented the question of “[w]hether a federal district court has jurisdiction under 28 U.S.C. § 1331 over nominally state-law claims seeking redress for injuries allegedly caused by the effect of transboundary greenhouse gas emissions on the global climate, on the ground that federal law necessarily and exclusively governs such claims.” Chevron Corp. v. City of Hoboken, No. 22-821 (U.S. May 15, 2023)
The two cases have been proceeding in state courts in New Jersey and Delaware. In the Hoboken case, the City filed an amended complaint on April 21, 2023. The amended complaint included a count asserting violations of New Jersey’s Racketeer Influenced Corrupt Organizations Act. The New Jersey Superior Court directed the defendants to file their motions to dismiss by June 20, 2023. The City agreed not to seek merits-related discovery until after the motions to dismiss were fully briefed. City of Hoboken v. Exxon Mobil Corp., No. HUD-L-3179-20 (N.J. Super. Ct. Apr. 21, 2023)
In Delaware’s case, the defendants filed motions to dismiss on May 18, 2023. They jointly filed a motion to dismiss for failure to state a claim. In their joint brief, they first argued that state law could not constitutionally apply to a dispute involving global climate change, and that even if state law could apply, the Clean Air Act preempted Delaware’s claims. They also argued that Delaware’s claims were nonjusticiable under the political question doctrine; that the complaint failed to allege essential elements of Delaware’s claims; and that the allegations did not meet the heightened pleading standard for claims premised on alleged fraudulent statements. Seven defendants that are not incorporated in Delaware filed a motion to dismiss for lack of personal jurisdiction. Individual defendants or groups of defendants filed supplemental briefs in support of their own motions for dismissal for failure to state a claim in which they argued that there were pleading deficiencies specific to them (e.g., failures to allege misrepresentations by a particular defendant about its products’ relationship to climate change). American Petroleum Institute and Chevron defendants filed motions to strike and/or dismiss the complaint under the District of Columbia’s and California’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statutes, respectively. Delaware v. BP America Inc., No. N20C-09-097 (Del. Super. Ct.)
Rhode Island Trial Court Allowed Jurisdictional Discovery in State’s Climate Case Against Fossil Fuel Companies
The Rhode Island Superior Court granted the State of Rhode Island’s motion to conduct jurisdictional discovery in the State’s lawsuit seeking to hold fossil fuel companies liable for climate change’s impacts on Rhode Island’s infrastructure and coastal communities. The companies have moved to dismiss the case for lack of personal jurisdiction on the grounds that they have insufficient contacts with the State. The companies also contend that there are no facts in dispute as to jurisdiction. The court noted that jurisdictional discovery should not be allowed when allegations of minimum contacts, even if true, would not be sufficient but found that in this case there was a sufficient alleged connection between the companies’ activities and Rhode Island’s injuries. The court was not persuaded that limited jurisdictional discovery would be burdensome to the defendants. The court described Rhode Island as “similarly situated” to small countries in other parts of the world that had presented at the most recent United Nations climate conference “that oil companies have benefitted billions in corporate profits at the expense of [small countries’] climate-related disasters that have caused severe destruction.” The court said attendees at the climate conference “were left with a similar question this Court might ultimately have to oversee: who pays for the damage and loss this State has had to incur from climate change effects?” The court stated that it saw “no compelling argument that would prevent Plaintiff from engaging in limited jurisdictional discovery, which, if fruitful, could help address the very question those small nations … faced.” The court limited discovery to the following issues: (1) defendants’ fossil-fuel business activity in Rhode Island during the times set forth in Rhode Island’s complaint; (2) defendants’ marketing and promotion of fossil-fuel products to Rhode Island consumers during the same time period; and (3) defendants’ historical knowledge of climate change impacts in the State of Rhode Island during that time period.
On June 7, 2023, the defendants filed a motion to clarify and strike portions of the court’s decision. The defendants contended that clarification of the scope of discovery was needed because Rhode Island had indicated that it interpreted the decision to authorize “sweeping” or “de facto full-merits” discovery that would include activities and conduct outside Rhode Island borders. The motion also requested that the court strike references in its decision to matters outside the record from the decision, including two news articles and “statements regarding un-briefed and un-proven disputed factual issues.” State v. Chevron Corp., No. PC-2018-4716 (R.I. Super. Ct. Apr. 28, 2023)
D.C. Circuit Said FERC Was Not Required to Use Social Cost of Carbon or Consider Indirect Effects of Exported Gas in NEPA Analysis for Alaskan LNG Project
The D.C. Circuit Court of Appeals dismissed a challenge to the Federal Energy Regulatory Commission’s (FERC’s) authorization of a system of liquefied natural gas (LNG) facilities in Alaska. The court found that FERC complied with the Natural Gas Act, the National Environmental Policy Act (NEPA), and the Administrative Procedure Act. Regarding the consideration of the project’s potential impacts on greenhouse gas emissions and climate change, the court concluded that FERC acted reasonably by declining to use the social cost of carbon to measure the impacts of the project’s direct emissions of greenhouse gases. FERC instead compared the project’s direct emissions with existing Alaskan and nationwide emissions. The court noted that FERC had recognized a “lack of consensus about how to apply the social cost of carbon on a long time horizon,” and that FERC had noted that the social cost of carbon “places a dollar value on carbon emissions but does not measure environmental impacts as such” and that the FERC had not established criteria to translate the dollar values into assessment of environmental impacts. The court found that this approach was reasonable and mirrored previously upheld analysis. The D.C. Circuit also found that the petitioner had failed to raise before FERC a separate argument that the failure to use the social cost of carbon was contrary to NEPA regulations requiring use of “generally accepted” approaches and methods. The court also indicated that this separate argument was “in tension” with other D.C. Circuit decisions finding it permissible not to apply the social cost of carbon. In addition, the D.C. Circuit found that FERC was not required to consider downstream emissions from export-bound gas because FERC lacked jurisdiction over export approvals. The court therefore found that FERC appropriately “cabined” its NEPA analysis. The court also concluded that FERC’s decision not to consider the indirect effects of Alaska-bound gas was lawful because FERC had determined that it could not reasonably identify end users of the gas. Center for Biological Diversity v. Federal Energy Regulatory Commission, No. 20-1379 (D.C. Cir. May 16, 2023)
D.C. Circuit Found that Petitioners Lacked Standing to Challenge EPA’s Denial of Petition to Reconsider 2009 Endangerment Finding for Greenhouse Gases from Motor Vehicles
In an unpublished judgment, the D.C. Circuit Court of Appeals dismissed petitions for review that challenged the U.S. Environmental Protection Agency’s (EPA) denial in April 2022 of petitions requesting that the agency reconsider its 2009 finding that the greenhouse gas emissions from motor vehicles contribute to climate change and thus endanger public health and welfare. The D.C. Circuit found that that the petitioners—Concerned Household Electricity Consumers Council and the FAIR Energy Foundation—failed to establish standing because they did not provide evidence that they or any of their members had been injured by the 2009 endangerment finding. The court found that their theories of representational and organizational standing were “fatally flawed.” Concerned Household Electricity Consumers Council v. EPA, No. 22-1139 (D.C. Cir. May 25, 2023)
D.C. Circuit Said Inflation Reduction Act Mooted Challenge to Gulf of Mexico Lease Sale
In an unpublished judgment, the D.C. Circuit Court of Appeals held that a case challenging Lease Sale 257 for the development of oil and gas resources in the Gulf of Mexico was moot because the Inflation Reduction Act (IRA) included instructions for the Secretary of the Interior to issue leases to the high bidders. A district court had vacated the Bureau of Ocean Energy Management’s record of decision in January 2022 for failure to comply with NEPA. Because the legislative act mooted the case, the D.C. Circuit vacated the January 2022 district court order and remanded with instructions to dismiss. The D.C. Circuit rejected environmental groups’ arguments that a live controversy remained. The court concluded that the IRA did not condition issuance of the leases on the outcome of the appeal of the January 2022 order; that the IRA made clear that issuance of the leases was nondiscretionary and no longer subject to NEPA; and that the IRA did not intrude on the judiciary’s independence. Friends of the Earth v. Haaland, No. 22-5036, 22-5037 (D.C. Cir. Apr. 27, 2023)
Center for Biological Diversity and EPA Agreed to Settle Challenge to 2020–2022 Renewable Fuel Standards
Center for Biological Diversity (CBD) and EPA reached a settlement to resolve CBD’s challenge to EPA’s Renewable Fuel Standards for 2020, 2021, and 2022. CBD had contended that EPA violated the Endangered Species Act, the Clean Air Act, and Administrative Procedure Act by failing to complete consultation under Section 7(a)(2) of the Endangered Species Act and to consider the standards’ potential impacts on endangered and threatened species and critical habitat. The settlement agreement noted that EPA had initiated consultation in conjunction with its proposed Renewable Fuel Standard annual rules for 2023, 2024, and 2025 (the “RFS Set Rule”). The settlement agreement provided that EPA would take “appropriate action” for each species covered by its biological evaluation and that CBD would file a stipulation of voluntary dismissal of its lawsuit upon notice from EPA of the termination of the consultation but would retain the right to challenge the RFS Set Rule and the related consultation. Center for Biological Diversity v. EPA, No. 22-1164 (D.C. Cir. Apr. 17, 2023)
South Dakota Federal Court Denied County’s Motion to Dismiss Preemption Challenge to Moratorium Blocking Carbon Dioxide Pipelines
The federal district court for the District of South Dakota found that the owner of a 2,200-acre farm that primarily produces corn and the developer of an interstate pipeline to transport carbon dioxide to sequestration sites had sufficiently established standing to challenge a county’s moratorium on permits for hazardous waste pipelines. The court therefore denied the county’s motion to dismiss. The court cited allegations that due to nations and states adopting low carbon or clean fuel standards to reduce carbon emissions, the “future of South Dakota’s ethanol industry depends at least in part on the industry implementing strategies to reduce carbon emissions” and that the proposed pipeline would transport carbon dioxide from several ethanol production facilities, including one in which the farm owner had an interest. The court found that the plaintiffs had alleged a concrete, particularized, and actual injury based on the moratorium’s alleged impact on construction of the pipeline, even if there were other hurdles to the pipeline’s construction. The court also found that the plaintiffs’ claims that the federal Pipeline Safety Act preempted the county moratorium appeared to be ripe. Alverson v. Brown County, No. 3:22-cv-03018 (D.S.D. June 1, 2023)
Massachusetts Federal Court Upheld Endangered Species Act and NEPA Reviews for Offshore Wind Project
The federal district court for the District of Massachusetts rejected claims that the Bureau of Ocean Energy Management and National Marine Fisheries Service violated the Endangered Species Act and NEPA in connection with their decisions authorizing an offshore wind energy project off the coast of Martha’s Vineyard and Nantucket. The court agreed with the project developer that the plaintiffs did not demonstrate a concrete injury with respect to the project’s potential air emissions or contributions to greenhouse gases, characterizing as “generalized” the individual plaintiff’s concern regarding the project’s potential to increase greenhouse gas emissions and contribute to climate change. The court found that these concerns were insufficient to confer standing for the plaintiffs’ NEPA air quality and emissions claims. The court rejected the plaintiffs’ claims related to right whales on the merits. Nantucket Residents Against Turbines v. U.S. Bureau of Ocean Management, No. 1:21-cv-11390 (D. Mass. May 17, 2023)
Court of International Trade Issued Ruling on Commerce Department’s Remand Determination on German Steel Subsidies
The U.S. Court of International Trade upheld in part and remanded in part the U.S. Department of Commerce’s redetermination on remand from the court’s 2022 decision regarding the determination that certain German regulatory programs, including an Electricity Tax Act and an Energy Tax Act, constituted countervailable subsidies for forged steel fluid end blocks from Germany, including blocks produced by the plaintiff. The court found that the Commerce Department’s interpretation that it was not required to offset the costs of compliance with laws and regulations such as climate measures in determining the countervailing duty rates for Electricity Tax Act and Energy Tax Act was reasonable and consistent with past practice. The court remanded to the Department of Commerce a second issue concerning whether a separate German program was a specific subsidy. BGH Edelstahl Siegen GmbH v. United States, No. 1:21-cv-00080 (CIT May 9, 2023)
Plaintiffs Agreed to Dismissal of Their Lawsuit Challenging EPA Denial of Petition to Regulate Greenhouse Gas Emissions Under TSCA
After the plaintiffs and defendants filed a joint stipulation of dismissal, the federal district court for the District of Oregon dismissed the lawsuit challenging EPA’s denial of a petition requesting that EPA undertake rulemaking pursuant to the Toxic Substances Control Act (TSCA) to phase out greenhouse gas pollution and remove legacy and residual greenhouse gas emissions. Climate Protection & Restoration Initiative v. Regan, No. 6:22-cv-01772 (D. Or. May 9, 2023)
Ohio Federal Court Approved Consent Decree Requiring Development of TMDL for Western Lake Erie
On March 4, 2023, the federal district court for the Northern District of Ohio approved a consent decree that resolves lawsuits brought by environmental organizations and the Board of Lucas County Commissioners to compel EPA to require the Ohio Environmental Protection Agency to develop a Total Daily Maximum Load (TMDL) for western Lake Erie or to take other actions to address impaired water quality in the lake. The environmental organizations alleged that a TMDL was “especially urgent” because algal blooms and nutrient pollution problems “are likely to be exacerbated by climate change.” The court noted that the consent decree ended litigation that “spanned two weeks shy of six years” and that efforts to reach the agreement had already resulted in the State proceeding with steps towards addressing pollution that otherwise would have been delayed. The consent decree requires Ohio to submit a final TMDL to EPA by June 30, 2023. Environmental Law & Policy Center v. EPA, No. 3:19-cv-00295 (N.D. Ohio May 4, 2023)
Idaho Federal Court Said BLM Violated Federal Laws When It Approved Land Exchange for Gypsum Plants; Decision Did Not Address Climate Change
The federal district court for the District of Idaho ruled that the U.S. Bureau of Land Management (BLM) violated the 1900 Act (which implemented the 1898 Cession Agreement in which the Shoshone-Bannock Tribes ceded a portion of Fort Hall Reservation to the U.S.), the Federal Land Policy and Management Act, and NEPA in connection with approval of a land exchange from the United States to a private company for building new gypstacks for waste from a phosphate processing facility. The NEPA violation related to BLM’s failure to consider design options for cooling ponds and gypstack expansion and its reliance on other agencies’ enforcement. The court rejected other NEPA arguments, including regarding air quality. Although the complaint alleged that BLM’s assessment of impacts on both air quality and climate change was incorrect, the court’s decision did not address any arguments specific to climate change. Shoshone-Bannock Tribes of the Fort Hall Reservation v. Daniel-Davis , No. 4:20-cv-00553 (D. Idaho Mar. 31, 2023)
California Appellate Court Said Challenge to Earlier Analysis of UC Berkeley Increased Enrollment Was Moot
The California Court of Appeal held that challenges to the analysis of the environmental impacts of increased enrollment at the University of California, Berkeley, were moot because the Regents of the University of California had certified a new environmental impact report (EIR) and California had enacted legislation that restricted California Environmental Quality Act reviews of the impacts of increased enrollment. The new EIR’s analysis of the impacts of increased enrollment focused on seven categories, one of which was greenhouse gas emissions. Save Berkeley’s Neighborhoods v. Regents of University of California, No. A163810 (Cal. Ct. App. Apr. 27, 2023)
Appellate Court Upheld New York State Regulations for Renewable Energy Siting
The New York Appellate Division upheld State regulations for the siting of renewable energy facilities that the State’s Accelerated Renewable Energy Growth and Community Benefit Act exempted from the environmental review that ordinarily would be required under the State Environmental Quality Review Act (SEQRA). The State regulations, however, were themselves subject to SEQRA. The Appellate Division agreed with parties challenging the regulations that the Office of Renewable Energy Siting (ORES) had misclassified the regulations as an Unlisted action under SEQRA, rather than as a Type I action, which would have created a presumption that an environmental impact statement should be prepared. The court further found, however, that ORES “took a thorough and hard look at the potential negative environmental impacts associated with the proposed regulations” and based on this review issued a negative declaration that the regulations would not have any adverse environmental impacts. The court noted that the regulations advanced statutory purposes by expediting reviews of renewable energy facilities necessary for meeting the greenhouse gas emissions reduction targets of the Climate Leadership and Community Protection Act. The court also held that the regulations did not exceed ORES’s statutory authority. The court found, among other things, that a provision providing for default approvals subject to certain uniform or site-specific conditions if review is not completed within one year was “important given the ultimate goal of zero emissions of electrical energy by 2040.” The court also noted that express language granted ORES the power to waive unreasonably burdensome local laws that would thwart the legislation’s ultimate goals, and that the waiver provision was not unconstitutionally vague or unconstitutional under the New York Constitution’s home rule provision. Town of Copake v. New York State Office of Renewable Energy Siting, No. 534318, 534413 (N.Y. App. Div. May 18, 2023)
Minnesota Appellate Court Said Attorney General Did Not Have to Disclose Emails Concerning States’ Coordinated Legal Actions to Address Climate Change
The Minnesota Court of Appeals affirmed a district court’s determination that Attorney General Keith Ellison and the Office of the Attorney General properly withheld three emails when responding to a request under the Minnesota Government Data Practices Act for data related to outside funding for special assistant attorneys general. The three emails were from other state attorney general offices concerning coordinated legal challenges to address climate change. The appellate court found that the district court did not err by determining that the emails were not public because they were “active civil investigation data.” The appellate court further found that the district court did not abuse its discretion when it refused to order disclosure after considering the harms and benefits of disclosure. The court determined that disclosure of the emails would harm the Attorney General because they contained legal theories about pending litigation and that the benefit of disclosure claimed by the petitioner—that the emails would provide insight into the issue of outside funding of the special assistant attorneys general—was not borne out by the court’s in camera review of the emails. Energy Policy Advocates v. Ellison, No. A22-0466 (Minn. Ct. App. May 8, 2023)
Massachusetts Court Upheld Attorney General Determination that Disapproved Local Ban on Fossil Fuel Infrastructure in New Construction
The Massachusetts Superior Court upheld the Massachusetts Attorney General’s February 2022 disapproval of the Town of Brookline’s zoning amendments preventing or limiting use of fossil fuel infrastructure in new construction. The court concluded that the Attorney General had not erred in determining that the local laws were inconsistent with or preempted by other Massachusetts laws. Town of Brookline v. Healey, No. 2282-00400 (Mass. Super. Ct. Mar. 23, 2023)
NEW CASES, MOTIONS, AND OTHER FILINGS
Lawsuits Challenged Clean Air Act Waiver for California’s Heavy-Duty Vehicle Regulations
Six petitions for review were filed in the D.C. Circuit Court of Appeals challenging EPA’s final action granting the California Air Resources Board’s requests for waivers of Clean Air Act preemption for four sets of standards for heavy-duty onroad vehicles and engines: (1) the Heavy-Duty Vehicle and Engine Emission Warranty Regulations and Maintenance Provisions; (2) the Advanced Clean Trucks Regulation; (3) the Zero Emission Airport Shuttle Regulation; and (4) the Zero-Emission Power Train Certification Regulation. The petitioners included trade associations representing various industries, including the biofuel industry; 19 states (led by Iowa); advocacy groups; and local water districts in California that operate fleets affected by the regulations. Western States Trucking Association, Inc. v. EPA, No. 23-1143 (D.C. Cir., filed June 5, 2023); Iowa v. EPA, No. 23-1144 (D.C. Cir., filed June 5, 2023); Illinois Soybean Association v. EPA, No. 23-1145 (D.C. Cir., filed June 5, 2023); American Fuel & Petrochemical Manufacturers v. EPA, No. 23-1146 (D.C. Cir., filed June 5, 2023); The 200 for Homeownership v. EPA, No. 23-1147 (D.C. Cir., filed June 5, 2023); Owner-Operator Independent Drivers Association, Inc. v. EPA, No. 23-1148 (D.C. Cir., filed June 5, 2023)
Berkeley Filed Petition for Rehearing en Banc in Natural Gas Ban Case
The City of Berkeley sought rehearing en banc of the Ninth Circuit Court of Appeals decision holding that federal law preempted the City’s prohibition on natural gas infrastructure in new buildings. Berkeley argued that the decision misinterpreted a “modest provision” of the federal Energy Policy and Conservation Act (EPCA) as “enacting a preemptive juggernaut.” Berkeley contended that the expansive interpretation could not be reconciled with EPCA and statutory construction precedents. The City also argued that the decision would case “multiple and far-reaching harms.” California Restaurant Association v. City of Berkeley, No. 21-16278 (9th Cir. May 31, 2023)
Lawsuit Alleged BLM Knowingly Misled Coal Company About Value of Coal Lease for Which Review of Greenhouse Gas Emissions Was Found to Be Inadequate
The purchaser and owner of a federal coal lease for a tract in Utah filed a lawsuit in the Federal Court of Claims asserting that the United States breached its contractual obligations by misleading the company regarding the value of the lease and failing to revise the environmental impact statement for the lease sale after a court held that the U.S. Bureau of Land Management’s (BLM’s) NEPA review was inadequate for failure to address the effects and costs of greenhouse gas emissions. The complaint alleged that BLM knew when it approved the lease application that the environmental review was inadequate but nonetheless marketed and conducted the lease sale knowing that it was vulnerable to judicial challenge. The complaint alleged that the plaintiff had made all required bonus and rental payments for the lease, was in compliance with reclamation bond requirements, and had made significant investments in the permitting for and development of the coal tract. The plaintiff also alleged that the reinstatement of the federal coal lease moratorium diminished the value of the lease. The complaint sought damages for the U.S.’s alleged breach of the lease, including almost $12 million for the loss of bonus payments and reliance damages in an amount to be determined at trial. Alton Coal Development, LLC v. United States, No. 1:23-cv-00626 (Fed. Cl., filed May 1, 2023)
Lawsuit Challenged New FEMA Methodology for Setting Flood Insurance Rates, Including for Allegedly Improper Consideration of Future Climate Change
Ten states, along with numerous Louisiana parishes, two Louisiana towns, and a number of Louisiana levee and drainage districts, filed a lawsuit in the federal district court for the Eastern District of Louisiana alleging that the Federal Emergency Management Agency (FEMA) had adopted a new methodology for calculating flood insurance rates in the National Flood Insurance Program that would make flood insurance much more expensive . The plaintiffs asserted that this methodology, called Risk Rating 2.0—Equity in Action, “ignores historical observed flood events and demonstrably effective mitigation efforts in favor of future flood hypotheticals to determine the flood risk of each insured property.” The plaintiffs argued that the new methodology was contrary to law; arbitrary and capricious; and unconstitutional. They alleged that FEMA acted arbitrarily and capriciously by failing to consider the reliance interests of those affected and by failing to take into account important aspects of the problem, including by considering “inappropriate factors” such as “future climate change,” which the plaintiffs alleged “does not relate to the risk a property actually faces today.” The complaint also asserted that the methodology was arbitrary and capricious because it departed from prior policy without adequate justification and that FEMA “acted pretextually” by “tweaking flood insurance rates to meet its separate objective of addressing future climate change.” In addition, the complaint asserted that FEMA adopted the methodology without compliance with notice-and-comment requirements, exceeded its statutory authority, failed to comply with NEPA, and violated the Spending Clause. Louisiana v. Mayorkas, No. 2:23-cv-01839 (E.D. La., filed June 1, 2023)
Class Action Lawsuit Claimed Delta Misrepresented That It Was “Carbon-Neutral” Airline
A California resident who had purchased flights from Delta Air Lines, Inc. (Delta) filed a class action complaint in the federal district court for the Central District of California alleging that Delta “grossly misrepresent[ed] the total environmental impact of its business operations” by marketing itself as a “carbon-neutral” airline. The plaintiff alleged that this representation was based on Delta’s participation in a voluntary carbon offsets market in which investors in “green projects” such as renewable energy or prevention of deforestation receive “carbon offsets.” The plaintiff alleged that she had discovered that any representation that carbon offsets purchased by Delta had entirely offset the carbon emissions from the company’s operations were “manifestly and provably false” because of “foundational issues” with the market, including “inaccurate accounting”; “non-additional effects on worldwide carbon levels due to the vendors crediting offsets for projects that would have occurred with or without offset market investment”; non-immediate speculative emissions reductions that will at best occur over decades, despite crediting purchasers with the sum of those projected offsets”; and “impermanent projects subject to disease, natural disasters, and human intervention.” The plaintiff alleged that she would not have purchased Delta’s services or would have paid substantially less if she had understood that the representations of carbon neutrality were false. She asserted claims under California’s Consumers Legal Remedies Act, False Advertising Law, and Unfair Competition Law. Berrin v. Delta Air Lines Inc., No. 2:23-cv-04150 (C.D. Cal., filed May 30, 2023)
Climate Protesters Indicted After Throwing Paint on Case for Degas’s “Little Dancer”
On May 25, 2023, two climate activists were indicted in federal court in the District of Columbia on counts of injury to National Gallery of Art property and conspiracy to injury property after they allegedly entered the museum and spread paint on the case, base, and floor surrounding Edgar Degas’s “Little Dancer Aged 14.” In a news release, the group Declare Emergency indicated that the defendants’ actions were part of a “week of action with the goal of getting President Joe Biden to declare a climate emergency and halt all fossil fuel extraction/infrastructure on Federal and Indigenous lands.” United States v. Martin, No. 1:23-cr-00182 (D.D.C. May 25, 2023)
Lawsuits in State and Federal Court Challenged Washington’s Restrictions on Natural Gas Appliances
On May 22, 2023, a coalition of plaintiffs that included homeowners, builders, suppliers, and utilities filed a lawsuit in federal district court in Washington challenging the Washington State Building Code Council’s amendments of the State Energy Code to ban or restrict the use of natural gas appliances in commercial and residential buildings. The plaintiffs contended that the federal Energy Policy and Conservation Act preempted the restrictions. Earlier in 2023, Washington residents, businesses in the building and construction industries, trade organizations, and union representatives filed a lawsuit in Washington Superior Court challenging these amendments to the State Energy Code, as well as other State Building Code Council rules, including a rule that would require that new homes containing a carport or garage be equipped with a circuit for charging electric vehicles. The petitioners alleged that these rules exceeded the State Building Code Council’s statutory authority and that to the extent the statute permitted the prohibition of natural gas, it was an unconstitutional delegation of authority. In addition, the petitioners asserted that the Council failed to comply with rulemaking procedures and adopted the provisions “without regard to the attending facts or circumstances of the costs imposed on homeowners, workers, businesses, developers, and myriad others across the state.” Rivera v. Washington State Building Code Council, No. 1:23-cv-03070 (E.D. Wash., filed May 22, 2023); Northwest Regional Council of National Construction v. State Building Code Council, No. 23-2-00615-34 (Wash. Super. Ct., filed Feb. 28, 2023)
Lawsuit Challenged Authorization of Logging Project in “Core Area” for Canada Lynx
A local environmental organization filed a lawsuit in the federal district court for the Eastern District of Washington challenging the U.S. Forest Service’s authorization of a logging project on public lands in the Colville National Forest’s Kettle Range, which the organization alleged was “one of the few and last-remaining areas still occupied by [the Canada] lynx in the lower 48 states.” The organization asserted that the defendants failed to comply with the Endangered Species Act, the National Forest Management Act, and NEPA, including by failing to consider “synergistic or combined effects to lynx” from threats including climate change. The complaint’s allegations included that the U.S. Fish and Wildlife Service had recognized climate change as “the most serious threat to lynx conservation and recovery in the lower 48 states” and that the 2019 plan for the Colville National Forest identified the Kettle Range as a “core area” that was important for the lynx’s recovery. Kettle Range Conservation Group v. Smolden, No. 2:23-cv-00147 (E.D. Wash., filed May 12, 2023)
Consumer Claimed that Nike Misrepresented Sustainability of Products
A consumer who purchased Nike’s “Sustainability” Collection Products filed a class action complaint in the federal district court for the Eastern District of Missouri asserting that Nike falsely and misleadingly represented that the products were sustainable, made with sustainable materials, and environmentally friendly. The misrepresentations alleged by the plaintiff included that Nike labeled products to claim that they supported a “Move to Zero,” which “is Nike’s journey toward zero carbon and zero waste to help protect the future of sport.” The complaint asserted violations of Missouri’s Merchandising Practices Act and made claims of unjust enrichment, negligent misrepresentation, and fraud. Ellis v. Nike USA, Inc., No. 4:23-cv-00632 (E.D. Mo., filed May 10, 2023)
NEPA Lawsuit Challenged FAA Authorization of SpaceX Super Heavy Launch Vehicle Program
Center for Biological Diversity and four other organizations filed a lawsuit in federal district court in the District of Columbia challenging the Federal Aviation Administration’s authorization of the SpaceX Starship/Super Heavy Launch Vehicle Program at Boca Chica, Texas. The plaintiffs asserted violations of NEPA and the Administrative Procedure Act, including for failing to take a hard look at the launch program’s contribution to climate change. The complaint alleged that the Super Heavy rocket holds up to 3,700 metric tons of methane, which will have to be vented into the atmosphere. Center for Biological Diversity v. Federal Aviation Administration, No. 1:23-cv-01204 (D.D.C., filed May 1, 2023)
Organizations Challenged California’s Changes to Net Energy Metering Tariff
Center for Biological Diversity and two other organizations filed a petition in the California Court of Appeal challenging the Public Utilities Commission’s adoption of a successor to the Net Energy Metering (NEM) tariff. The petitioners alleged that the original NEM tariffs had allowed residents to earn a reasonable return on upfront investments in distributed energy resources and that NEM tariff “confers significant societal benefits, including reduced greenhouse gas emissions, resilience to extreme weather and power outages, and avoided land use impacts.” The new tariff reduces compensation for energy exported to the grid from rooftop solar and failed to include a program to ensure growth of distributed energy in disadvantaged communities. The petitioners alleged that the Commission failed to account for the total benefits and costs of distributed generation, including the societal benefits of avoided out-of-state methane leakage from reductions in the need for natural gas production in and transmission from out of state. The petitioners’ other arguments included that the Commission improperly elevated costs to non-participants over cost-effectiveness for the electrical system as a whole in its cost-effectiveness analysis and violated a statutory mandate to ensure continued robust growth of distributed generation. Center for Biological Diversity v. Public Utilities Commission of the State of California, No. A167721 (Cal. Ct. App., filed May 3, 2023)
New Mexico Lawsuit Alleged that State’s Authorization of Oil and Gas Development Violated State Constitutional Protections
On May 10, 2023, plaintiffs filed a lawsuit in New Mexico District Court alleging that the State of New Mexico and other State defendants were violating the New Mexico Constitution by failing to meet their constitutional obligations to protect the environment from the impacts of oil and gas pollution. The plaintiffs were “‘frontline’ community members (i.e., people living near oil and gas production sites), Indigenous peoples, youth, and environmental organizations.” The complaint alleged that “[d]espite its constitutional duty to protect New Mexico’s air, water, environment and other natural resources, the State continues to authorize and promote oil and gas production, without establishing and implementing a statutory, regulatory and enforcement scheme that ensures the protection of New Mexico’s beautiful and healthful environment.” The complaint asserted a violation of the Constitution’s “Pollution Control Clause” as well as substantive due process and equal protection violations under the New Mexico Constitution. Atencio v. State, No. D-101-CV-202301038 (N.M. Dist. Ct., filed May 10, 2023)
Lawsuit Challenged New York City Pension Plans’ Divestment from Fossil Fuels
Four New York City employees and a nonprofit organization filed a lawsuit in New York Supreme Court against three New York City public employee retirement systems alleging that the defendants breached fiduciary duties owed to the plaintiffs and other pension plan participants and beneficiaries by divesting from companies involved in fossil fuel extraction. The complaint alleged that this divestment was “a misguided and ineffectual gesture to address climate change” and that “[t]his unlawful decision to elevate unrelated policy goals over the financial health of the Plans is flatly inconsistent with the Defendants’ fiduciary responsibilities, and jeopardizes the retirement security of Plan participants and beneficiaries.” The plaintiffs asserted breach of fiduciary duty claims under New York common law and New York insurance regulations. They sought money damages, an order requiring the defendants to make the pension plans whole for losses caused by the divestment actions, declaratory relief, injunctive relief, appointment of a monitor to assure compliance, and appointment of an independent fiduciary to make a report on what fossil fuel-related investments should be added to the plans’ portfolios. Wong v. New York City Employees’ Retirement System, No. 652297/2023 (N.Y. Sup. Ct., filed May 11, 2023)
Lawsuit Alleged that CalGEM Failed to Conduct Adequate Environmental Review for Drilling Permits
Center for Biological Diversity (CBD) filed a lawsuit in California Superior Court to vacate the California Geologic Energy Management Division’s (CalGEM’s) approvals of the drilling of certain oil wells off the coast of Long Beach and steam injection wells in San Luis Obispo County until CalGEM complies with the California Environmental Quality Act (CEQA) and the California Public Resources Code. CBD alleged that CalGEM improperly relied on environmental analyses conducted many years ago before information emerged regarding certain significant harms of drilling, including information about climate change harms. CBD alleged that the wells at issue in this case were part of a “broader pattern and practice of inadequate CEQA review,” which CBD has challenged in a separate lawsuit that does not seek to invalidate specific permits. Center for Biological Diversity v. California Geologic Energy Management Division, No. 23CV033371 (Cal. Super. Ct., filed May 11, 2023)
HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART
Committee finds that Shell’s claims of climate neutrality in the “Make a difference. Drive CO2 neutral” campaign violate of the Code for Environmental Advertising
The contested advertisement contained several statements by Shell in the campaign “Make a difference. Drive CO2 neutral,” specifically on Shell’s website. The complaint alleged that Shell falsely claimed that the damage caused by CO2 emissions can be offset or neutralized through voluntary carbon credits. The complaint was based on various scientific reports, including the IPCC Synthesis Report in 2014. The Reclame Code Committee (RCC), the Dutch advertising authority, held that the average consumers would understand the term “neutralized” to mean that the harm caused by CO2 emissions was completely compensated by offsetting measures. This impression was reinforced when Shell issued an explanation of the campaign on its website. While the RCC acknowledged that Shell had plausibly demonstrated that it followed certain standards and guidelines, it pointed out that Shell did not guarantee the full offsetting in practice. The RCC stressed that article 3 of the Code for Environmental Advertising (MRC) set a high bar with regards to environmental claims which must be demonstrably correct. Against this background, Shell's claims were too absolute, as they guaranteed a result which was not certain. Thus, the Committee found the advertising claims to be misleading and in breach of articles 2 and 3 of the MRC. RCC Ruling on Shell “Drive CO2 neutral” 1 (Reclame Code Commissie, Netherlands).
States and intergovernmental organizations submit amicus briefs to the ITLOS on climate change advisory opinion in preparation for September hearing
On December 12, 2022, the Co-Chairs of the Commission of Small Island States on Climate Change and International Law (the Commission), representing the Commission pursuant to Article 3(3) of the Agreement for the Establishment of the Commission, submitted a request for an advisory opinion from the International Tribunal for the Law of the Sea (the "Tribunal"). As fixed by the order, the deadline to submit briefs was June 16th, 2023. By that date, 31 states and eight intergovernmental organizations submitted written statements pursuant to article 138 paragraph 3 and article 133 paragraph 3 of the Rules of the Tribunal. Ten additional groups submitted written statements not pursuant to these articles. Rwanda and the Food and Agricultural Organization of the United Nations (FAO) submitted statements after the due date.
In an order authorized on June 30, 2023, Judge Albert Hoffman, President of the Tribunal, set September 11 as the date for the opening hearing of the case. At the hearing, oral statements may be made by State Parties to the Convention, the Commission of Small Island States on Climate Change, and other intergovernmental organizations. Parties wishing to make oral statements must indicate their intention to do so to the Registrar of the Tribunal no later than August 4. Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law (International Tribunal for the Law of the Sea).
DECISIONS & SETTLEMENTS
Court rules that TotalEnergies’ claims of climate neutrality are misleading and in breach of German competition law
In 2022, Deutsche Umwelthilfe (DUH) filed legal action against TotalEnergies due to an advertising statement concerning “CO2-compensated heating oil.” TotalEnergies claimed to offset the CO2 emissions of the oil as part of its climate plan. DUH argued that this advertising claim constituted misleading commercial practices, and was thus in breach of article 5a of the Act Against Unfair Competition. First, DUH claimed that the measures implemented to achieve the alleged climate neutrality of the advertised oil were insufficiently presented. Second, DUH criticized the offsetting measures to reach CO2 neutrality, namely the purchase of emission credits for a forest protection project in the Madre de Dios region, Peru (ClimatePartner Tambopata forest protection project). This case is part of a series of DUH legal proceedings concerning climate neutrality advertising promises.
On April 5th, 2023, the Düsseldorf Regional Court fully upheld DUH's lawsuit, ruling that TotalEnergies’ claims of climate neutrality were misleading. TotalEnergies is no longer allowed to advertise its heating oil as “CO2 compensated.” Deutsche Umwelthilfe v. TotalEnergies Warm & Kraftstoff Deutschland GmbH (Regional Court of Düsseldorf, Germany).
RCC rules that Shell trucks’ climate neutrality slogans are misleading and in breach of the Code for Environment Advertising
At the core of the complaint was an advertisement by Shell displaying a Shell truck with an image of a rainforest in the background stating: “I AM CO2 NEUTRAL. ON THE WAY. ARE YOU?” The complainant alleged that Shell’s statement on CO2 neutrality was misleading, referring to Shell's inaction on reducing CO2 emissions and the nature of Shell's business. The complainant referred to the District Court of the Hague's judgment on 26 May 2021 in Milieudefensie et al. v. Royal Dutch Shell plc. to highlight Shell’s intentions. The complainant also argued that the advertisement wrongly suggested that Shell helped with the preservation of the rainforest. Shell, on the other hand, argued that it used carbon offsetting to reach carbon neutrality. Shell also argued that the “I” referred to the displayed truck, and not the company as a whole. Lastly, Shell stated that the rainforest was an example of the CO2 compensation programs. The RCC held that the slogan could be interpreted in various ways, and that it was unclear that it only referred to the truck. The RCC considered the slogan to be misleading as the cargo (fossil fuel) and the company itself were not CO2 neutral. Thus, the RCC considered the advertisement to be in breach of article 2 of the Code for Environmental Advertising. In its ruling, the RCC referred to the reasoning of the RCC’s Ruling on Shell “Drive CO2 neutral” 1. RCC Ruling on Shell “Drive CO2 neutral” 2 (Reclame Code Commissie, Netherlands).
Appeal body of RCC confirms original ruling that Shell’s “CO2 compensation” claim is no different than its “CO2 neutral claim” and therefore still in violation of the Code for Environmental Advertising (MRC)
The contested advertising concerned several statements on Shell’s website regarding the campaign “Make a difference. Compensate CO2 emissions.” The complaint was in line with the previous ruling on Shell “Drive CO2 neutral” 1 in which the RCC held that Shell’s advertising was in breach of articles 2 and 3 of the Code for Environmental Advertising (MRC). After the ruling, Shell had replaced “CO2 neutral” with “CO2 compensation.” The complainants argued that these terms were synonymous and that an average consumer would understand the compensation claims as undoing the climatic harm caused by fossil fuels. However, Shell had not provided the scientific evidence that the promised offsetting actually led to this result in practice. The Committee found that this claim was not different from the previously assessed “CO2 neutral” claim. Thus, the Committee found the claim to be misleading and in breach of articles 2 and 3 MRC. Shell appealed the ruling and argued that the Committee's interpretation of the claim put Shell in an impossible evidential position which would hinder Shell’s ability to communicate about its CO2 offset program. The appeal body of the RCC confirmed the preliminary ruling. RCC - CvB Ruling on Shell “Compensate your emissions” (Reclame Code Commissie, Netherlands).
Appeal body confirms original ruling that Arla’s advertisement claims of climate neutrality are misleading and therefore in violation of the Code for Environmental Advertising (MRC)
The contested advertising concerned the statement “climate neutral” for Arla organic dairy on the product packaging, the website, and in videos and commercials. The complainant argued that such claims implied that the milk had no effect on the climate. Because this environmental claim could not be substantiated, it allegedly violated articles 2 and 3 of the Code for Environmental Advertising (MRC). The Committee was of the view that an average consumer would interpret these claims in the sense that the production of the products had no impact on the climate in that adverse effects were completely canceled out. The Committee referred to a previous ruling on Shell “Drive CO2 neutral” 1. After giving the defendant the opportunity to provide more information in an interim decision, the Committee found that Arla had not demonstrated the absolute certainty required with regard to the full and permanent offsetting of emissions through its forest projects. Thus, the accuracy of an absolute claim such as “climate neutral” had not been demonstrated as required by article 3 MRC. The advertising was therefore in breach of article 2 MRC. Arla subsequently appealed this decision, arguing that it met all the established and highest standards for claiming climate neutrality. Specifically, Arla stated that its “climate neutral” claim was a relative and not an absolute one, as the claim related to a label and that it was entitled to use this label for its products. Therefore, Arla argued that this case differentiated from previous cases which had involved absolute claims. The appeal body confirmed the decision of the RCC in part. It found that Arla’s statements were misleading to the extent that there was no clarification that the claim specifically related to the label. Thus, the appeal body found the statements to be misleading within article 2 MRC and in conjunction with article 8.3(a),(c) of the Dutch Advertising Code. The appeal body found no violation of article 2 MRC. RCC Ruling on Arla “climate neutral milk” (Reclame Code Commissie, Netherlands).
RCC rules that Chiquita’s claims of CO2 neutrality on banana stickers are misleading and lacking in context
The contested advertising concerned a sticker on Chiquita’s bananas which included the statement “CO2 Neutral.” The complaint alleged that Chiquita’s “CO2 Neutral” claim was not true. Several statements were pointed out on Chiquita’s website which referred to CO2 emission reduction by 30 percent by the end of 2030. The Commission found the sticker on the bananas with the claim “CO2 Neutral” to be misleading pursuant to article 2 of the Code for Environmental Advertising (MRC), as it did not contain any reference to information about the interpretation of this claim. Because any context was lacking, the meaning of this claim was unclear to the average consumer. The Committee noted that the meaning of the environmental claim had had to be made clear in the advertisement. The Committee found it insufficient that the meaning of “CO2 Neutral” was clarified on a separate website. It also noted that the mere mention of a website was insufficient to make the meaning of the claim clear. Because the claims were admissible on the basis of the foregoing, the Committee did not have to examine the question whether Chiquita was able to demonstrate the correctness of its absolute environmental claim pursuant to article 3 MRC. However, the Committee did refer to the strict standards set out in previous rulings. RCC Ruling on Chiquita “climate neutral bananas” (Reclame Code Commissie, Netherlands).
Court rules that tourist development in Hungary will be heavily influenced by climate change
In June 2021, the Municipality of the Village of Tihany submitted a request for a screening procedure regarding a planned tourist development near Lake Balaton, the largest freshwater lake in Central Europe. The project included a visitor center, an open-air visitor area, and a car parking lot. The screening documentation covered a number of issues, ranging from noise via air pollution to nature conservation. With regard to climate issues, the documentation briefly found that the implementation of the project would not be influenced by climate change. The Veszprém County Government Office issued a decision in July 2021, declaring that the planned project would have no significant impact on the environment and therefore there would be no need to perform an Environmental Impact Assessment.
Friends of the Earth Hungary filed a lawsuit against the Veszprém County Government Office in August 2021. In its file, the plaintiff claimed that the climate chapter of the screening documentation is lacking in actual content. It claimed that the planned project is obviously linked to water related tourism, and as such, will be heavily influenced by climate change. It also claimed that due to this, the decision of the defendant to not require an Environmental Impact Assessment is unlawful and breaches the Government Decree on EIA that requires the detailed presentation of climate change related information in screening documentations before decision-making.
The Defendant in its counter-argument claimed that the project would be implemented further away from the waterfront and not directly at the lake shore; therefore, any climatic change in the lake would not have an effect on the project and the project would not be sensitive to climate change. The Municipality that intervened on behalf of the Defendant agreed with the Defendant’s arguments. In November 2021, the court declared its judgment and annulled the decision of the Defendant. It ordered the Defendant to restart the screening process and reassess the need for an Environmental Impact Assessment, putting more emphasis on the climate change aspects of the project. The court found that climate protection analyses or climate risk assessments other than a brief table are not included. As such, the decision is therefore heavily unlawful with regard to clarifying the facts of the case and providing a reasoning to the decision. Friends of the Earth Hungary v. Veszprém County Government Office, Municipality of the Village of Tihany (Tribunal of Veszprém, Hungary).
Brazilian Court upholds ruling that defendant must provide financial compensation for environmental damage caused by unlawful deforestation and degradation of native vegetation
On October 27, 2010, the Public Prosecutor’s Office of Mato Grosso, Brazil, filed a Public Civil Action (class action) against Nelson Noboru Yabuta, aiming to hold him accountable for environmental damage caused by the degradation of native vegetation. The lawsuit sought urgent injunctive relief, environmental regularization of the Luana I and II farms, and compensation for collective moral damages. The plaintiff accused Yabuta of illegally deforesting 119,584 hectares in a Permanent Preservation Area (APP), in Juara, Mato Grosso, without authorization from the environmental agency.
An initial injunction was issued, prohibiting any unlicensed activities on the farms. Subsequently, the court ruled in favor of the plaintiff, ordering Yabuta to pay 20,000 Brazilian Reais (about USD $4,000) as compensation for collective moral damages resulting from the environmental harm. Both parties appealed. Yabuta argued that the Infraction Notice, which was one of the foundations of the lawsuit, had been annulled. The plaintiff contended that the court should recognize the obligations outlined in the Conduct Adjustment Agreement, a pact made between Yabuta and the state environmental agency, to strengthen its enforcement.
On February 21, 2017, the Court of Justice of Mato Grosso dismissed the appeals, upholding Yabuta’s conviction and his responsibility to compensate for collective moral damages. The court emphasized that the cancellation of the administrative infraction notice did not absolve
him of liability in other domains, as environmental crimes entail triple liability—criminal, administrative, and civil. It was proven that Yabuta had unlawfully deforested the APP and Legal Reserve of the property, disregarding the necessary authorization. His actions, driven by cattle-raising activities, posed a risk of forest desertification, thereby compromising the quality of life for the local population due to climate change and excessive greenhouse gas emissions (GHGs). Public Prosecutor’s Office of the State of Mato Grosso v. Nelson Noboru Yabuta (Mato Grosso, Brazil).
South Africa’s High Court issues ruling that environmental approval for coal-fired power station has expired and developer must pay costs of litigation
The environmental organization groundWork filed a motion requesting that South Africa’s High Court review and set aside the Department of Environmental Affairs’ authorization to develop a 600 MW coal-fired power plant, the “Khanyisa Project,” without first considering the climate change impacts of the plant. They also challenge the Minister of Environmental Affairs’ rejection of groundWork’s application to appeal the authorization.
Petitioners argue this dismissal directly contradicts the Court’s decision in EarthLife Africa Johannesburg v. Minister of Environmental Affairs and Others handed down on March 8, 2017. This case considered similar authorization for a 1200 MW coal-fired plant called the Thabametsi Project. In EarthLife Africa Johannesburg, the Court held that “the climate change impacts of a proposed coal-fired power station are required to be assessed and comprehensively considered as part of an environmental impact assessment under the National Environmental Management Act 107 of 1998 before an authorization decision is reached. National Environmental Management Act Section 24O(1)(b) further requires consideration of impacts, mitigation measures, and domestic as well as international policy commitments before granting an environmental authorization. In EarthLife Africa Johannesburg, the Court recognized South Africa’s commitments under the Paris Agreement as one of the reasons that climate change is a relevant consideration for the environmental review of a coal-fired power plant. This is one of two court applications filed by groundWork in September 2017 to oppose new coal-fired power plants in the Mpumalanga Highveld –an air quality priority area.
As the litigation unfolded, it emerged that the Khanyisa Project had breached the conditions of its environmental authorization and that its authorization had expired. The Department of Forestry, Fisheries and Environment (DFFE) agreed that the authorization was no longer valid. The Khanyisa Project's developer, ACWA, did not file answering papers and the matter proceeded on an unopposed basis.
On May 27, 2021, the High Court declared that the environmental approval for the planned 600MW Khanyisa coal-fired power station had expired. It ordered ACWA to pay the costs of the litigation. Trustees for the Time Being of GroundWork v. Minister of Environmental Affairs, ACWA Power Khanyisa Thermal Power Station RF (Pty) Ltd, Others (High Court, South Africa).
South Africa’s High Court issues ruling confirming that environmental authorization for coal-fired power plant has expired
The environmental organization groundWork has filed a motion requesting that South Africa’s High Court review and set aside the Department of Environmental Affairs’ authorization to develop a 600 MW coal-fired power plant, the “KiPower Project,” without first considering the climate change impacts of the plant. They also challenge the Minister of Environmental Affairs’ decision to dismiss groundWork’s appeal of the authorization.
Petitioners argue this dismissal directly contradicts the Court’s decision in EarthLife Africa Johannesburg v. Minister of Environmental Affairs and Others handed down on March 8, 2017. This case considered similar authorization for a 1200 MW coal-fired plant called the Thabametsi Project. In EarthLife Africa Johannesburg, the Court held that “the climate change impacts of a proposed coal-fired power station are required to be assessed and comprehensively considered as part of an environmental impact assessment (“EIA”)” under the National Environmental Management Act 107 of 1998 before an authorization decision is reached. National Environmental Management Act Section 24O(1)(b) further requires consideration of impacts, mitigation measures, and domestic as well as international policy commitments before granting an environmental authorization. In EarthLife Africa Johannesburg, the Court recognized South Africa’s commitments under the Paris Agreement as one of the reasons that climate change is a relevant consideration for the environmental review of a coal-fired power plant. This case is one of two court applications filed by groundWork in September 2017 to oppose new coal-fired power plants in the Mpumalanga Highveld –an air quality priority area.
On May 3 2022, the High Court issued an order, by agreement between the parties, confirming that the environmental authorization for the planned 600MW KiPower coal-fired power station had expired. Trustees for the Time Being of the GroundWork Trust v. Minister of Environmental Affairs, KiPower (Pty) Ltd, and Others (High Court, South Africa).
NHRC states that South Korea’s climate mitigation response is insufficient to protecting human rights and that government must set additional GHG reduction targets
In 2020, forty one South Koreans, including farmers, fishermen, coastal residents, and youth filed a complaint with the National Human Rights Commission (NHRC) alleging that their human rights, including the right to life and the right to health, were violated by the climate crisis. The NHRC dismissed the petition, but later commissioned an investigation on the impact of climate change on human rights in July 2021 on its own. In January 2023, the NHRC, for the first time, issued its opinion on the climate crisis and human rights addressed to the President and the Government.
The NHRC opined that the state should recognize the protection and promotion of the human rights of all people in the context of the climate crisis as a fundamental obligation of the state and improve relevant laws and regulations to ensure that the climate crisis is approached from a human rights perspective. Specifically, the NHRC recognized that the individual fundamental rights violated by the climate crisis are virtually all human rights, including the right to life, the right to food, the right to sanitation, the right to health, the right to housing, the right to self-determination, and the right to education.
The NHRC also pointed out that the Framework Act On Carbon Neutrality And Green Growth For Coping With Climate Crisis (“Carbon Neutrality Act”) does not provide specific support measures for climate-vulnerable groups, and it urged the government to take comprehensive measures to protect climate-vulnerable groups and strengthen their adaptive capacity. According to Article 8 of the Carbon Neutrality Act, the nationally determined contribution (NDC) is to reduce GHG emissions by at least 35% of 2018 emissions by 2030. Article 3 of the Enforcement Decree of the same Act raises the NDC to 40% of 2018 emissions. However, the NHRC noted that even the enhanced NDC falls short of the reduction target set out in the IPCC's Sixth Assessment Report in 2022 (43% of 2019 emissions by 2030). In addition, the Carbon Neutrality Act does not specify GHG reduction targets beyond 2030, which could lead to intergenerational inequities in GHG reductions. The NHRC required the government to set additional GHG reduction targets.
Although the opinion of the NHRC does not bind the Government, this decision is the first opinion issued by a governmental body in South Korea stating that the state bears an obligation to mitigate climate change, and that the current response is insufficient to protect the human rights of its people. Opinion of the National Human Rights Commission on the climate crisis and human rights (National Human Right Commission, South Korea).
Swiss Fair Advertising Commission upholds complaints and recommends that FIFA refrain from making unsubstantiated claims about climate neutrality in the future
In a concerted action with similar actions filed in the UK, France, Belgium and the Netherlands, Klima-Allianz, a Swiss-based coalition of 140 civil society organizations, filed a claim against FIFA claiming that FIFA’s advertising of the 2022 Football World Cup in Qatar as carbon neutral was misleading athletes, football fans and the 5 billion people expected to follow the event (which was held from November 20, 2022 until December 18, 2022 as the first ‘winter’ world cup ever). Counsel for the case are Avocat.e.s pour le climat.
The Fair Advertising Commission is a non-judicial body that examines complaints alleging violations of the Swiss Fairness Principles in Commercial Communication.
In June 2023, the Fair Advertising Commission upheld all five complaints (which were joined into one proceeding). After thorough review of the subject matter, the Commission recommended that FIFA refrain from making unsubstantiated claims in the future, particularly the claim that the 2022 FIFA World Cup in Qatar was climate or carbon-neutral. In substance, the Commission reiterated that strict standards apply when advertising carbon neutrality and that factual claims must be accurate and not misleading, which extends to environmental claims. For that matter, the Commission deferred to the International Chamber of Commerce’s Marketing and Advertising Code (Chapter D: Environmental Claims in Marketing Communications). KlimaAllianz v. FIFA (Switzerland, Fair Advertising Commission).
NEW CASES, MOTIONS, AND OTHER FILINGS
Complaint filed that Toyota’s environmental claims and net zero ambitions are contravened by current car production plans
Greenpeace Australia Pacific, with support from the Environmental Defenders Office, has filed a complaint with the Australian Competition and Consumer Commission (ACCC) requesting that the ACCC open an investigation into environmental claims made by Toyota, to determine whether these claims are misleading or deceptive. The complaint focuses on claims around the environmental performance of Toyota’s vehicles and the company’s net zero ambitions. Greenpeace alleges that Toyota’s net zero ambitions are contravened by its current car production plans, which do not include a rapid enough transition to electric vehicles, and that the company had lobbied to “halt, weaken, or delay vehicle emissions standards.” ACCC Toyota Environmental Claim (Australia Competition and Consumer Commission, Australia).
Request to open investigation against BP Senior Executives for committing a crime against humanity by knowingly causing and perpetuating climate change through the prioritization of profits from oil activities
Students for Climate Solutions New Zealand and the UK Youth Climate Coalition have submitted a request to the prosecutor of the International Criminal Court to open an investigation against BP Senior Executives. The submission argues that BP Senior Executives allegedly committed a crime against humanity by knowingly causing and perpetuating climate change while pursuing activities in the oil and gas industry. The submission alleges that since the 1950s, BP Senior Executives have been aware of the climate implications of the corporation’s oil and gas activities because of internal studies conducted into greenhouse gases. The results of these studies have allegedly been withheld from the public. The submission further argues that as of the 1990s, BP Senior Executives have admitted their role in perpetuating climate change in company documentaries where a link was made between the corporation’s activities and climate change.
In prioritizing profits from oil activities, BP Senior Executives are alleged to have engaged in the following harmful behaviors:
1. Creating doubt by sowing distrust in climate change science
2. Entrenching dependency on BP’s petroleum products on the false pretense that they are a necessary and viable solution to climate change
3. Causing delays to urgent climate policy by portraying climate change as a far-future issue 4. Fostering deception of governments and the wider public through misleading marketing of BP as a renewable energy company, using strategic communications to shift responsibilities for carbon emissions onto individuals, and promoting false solutions, such as yet-to-be-invented technology, that prolong the use of fossil fuels
5. Ensuring dominance through attempts to control and influence political processes via systematic lobbying and campaign financing.
The submission seeks damages from BP Senior Executives, pursuant to Article 8 of the Paris
Agreement, for their role in the issue of climate change. NZ Students for Climate Solutions and UK Youth Climate Coalition v. Board of BP (International Criminal Court).
Brazil Court to decide whether the environmental licensing of the Portocem Thermoelectric Plant is non-compliant with legal norms by failing to consider GHG emissions, water-related impacts, or indigenous people’s rights
On May 31st, 2023, the NGO Instituto Verdeluz, the Indigenous Council of the Anacé People of Japiman, and the Indigenous Association of the Anacé People of the Planalto Cauipe Village filed a Public Civil Action (environmental class-action) against the company Portocem Geração de Energia S.A. and the Secretary of the Environment of the State of Ceará (Secretaria do Meio Ambiente do Estado do Ceará – SEMACE). The plaintiffs seek the suspension and subsequent annulment of the environmental licensing process of the Portocem Thermoelectric Plant (UTE), powered by natural gas, which is to be installed in the Pecém Industrial and Port Complex (CIPP). They claim there is non-compliance with legal norms and several omissions in the Environmental Impact Study (EIA), including (i) the 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. Instituto Verdeluz and others v. Portocem Geração de Energia S.A. and SEMACE (Ceará Federal Court, Brazil).
Lawsuit filed alleging that Turkey’s updated Nationally Determined Contribution (NDC) is in violation of human rights
Three young climate activists in Turkey brought a new case to the Council of State on May 8th 2023. Turkey submitted the country's “Updated First NDC” to the UNFCCC Secretariat on April 13th, 2023. The NDC states that “Turkey confirms to reduce its greenhouse gas (GHG) emissions by 41% through 2030 (695 Mt CO2 eq in year 2030) compared to the Business as Usual (BAU) scenario given in Turkey's first Nationally Determined Contribution (NDC) considering 2012 as the base year (reference year). Turkey's updated first NDC is economy-wide and includes comprehensive mitigation and adaptation actions as well as consideration of means of implementation. Turkey intends to peak its emissions at the latest in the year 2038.”
Alleging that these goals are not sufficient, the Claimants applied to the Council of State and filed a lawsuit against President Recep Tayyip Erdoğan and The Ministry of Environment, Urbanization and Climate Change, requesting the annulment of NDC. The Claimants asserted that the updated NDCs submitted by Turkey are “climate inaction rather than climate action.” Underlining the lack of a transparent process in the preparation of the NDC, they demanded the annulment and renewal of Turkey's unscientific, ineffective, and inadequate climate target.
In their campaign, declaring that holding climate change at 1.5 degrees is a human right, the Claimants state that Turkey's decision to increase greenhouse gas emissions, which is incompatible with the Paris Climate Agreement’s goal of holding climate change at 1.5 degrees, violates their human rights. The progress of the climate crisis violates the right to live, the right to intergenerational equality, the right to health, the right to live in a healthy and balanced environment, and many others which were protected by the Turkish Constitution, the United Nations Convention on the Rights of the Child, and the European Convention on Human Rights. A.S. & S.A. & E.N.B. v. Presidency of Turkey & The Ministry of Environment, Urbanization and Climate Change (Council of State, Turkey).
CEMDA appeals court decision that they have no legal standing to file lawsuit alleging that increasing legacy transmission rates that affect renewable energy projects is unconstitutional
The Mexican Center for Environmental Law (CEMDA) challenged the Mexican Electricity Commission’s resolution increasing legacy transmission rates that affect renewable energy projects. Legacy energy projects refer to those energy projects that are regulated by the legal regime that existed prior to Mexico’s 2014 energy reform. Under such regimes, energy projects receive special transmission rates, among other features. In the challenged resolution, the Mexican Electricity Commission increased the transmission rates that such projects must pay by between 500% and 800%, according to CEMDA.
The plaintiffs considered that the new transmission rates transgress Mexico’s international commitments on environmental and energy matters. They also highlighted that the increase in the rates is unjustified, disproportionate, and will hamper Mexico’s transition to clean energy sources. Finally, they considered that the obstruction of clean energy sources through the increased rates constitutes a violation of the right to a healthy environment since it will lead to an increased dependence on fossil fuels.
The First District Court in Administrative Matters Specialized in Antitrust, Broadcasting and Telecommunications granted a stay of the implementation of the price increase in October 2020 pending the final decision of the trial. In the decision to stay the new rates, the District Court considered that the new transmission rates could signify an increase in greenhouse gas emissions that jeopardize human health, thus potentially infringing upon the right to a healthy environment.
In December 2021, the Third District Court in Administrative Matters Specialized in Antitrust, Broadcasting, and Telecommunications was created by the Federal Judiciary Council, and the case was reassigned to it under the number 232/2021.
On May 15, 2023 the Judge decided that the plaintiff, as an NGO, did not have legal standing to file the lawsuit because the plaintiff did not offer evidence that would affirm that the challenged acts affect the environment. Furthermore, the Court considered that even though the civil organization has, as its purpose, the legal defense of the right to a healthy environment, this is not enough to prove its legal standing. Therefore, the case was dismissed.
On June 2, 2023, CEMDA challenged the Court’s decision. The appeal is pending resolution by the appellate Collegiate Court. CEMDA v. Rise of Legacy Transmission Rates (District Court, Mexico).
Court asked to decide whether South Korean plan to construct an airport through the reclamation of tidal flats is inconsistent with carbon neutrality and adverse to environmental rights
On June 30, 2022, the defendant, the Minister of Land, Infrastructure, and Transport, established a basic plan to construct an airport on a site secured through the reclamation of the Saemangeum tidal flats. The plaintiffs, 1,308 South Korean citizens who oppose the construction of the airport, filed a lawsuit to cancel the basic plan.
For the establishment of the basic plan, a feasibility analysis should prove that the airport construction project is viable even if it alters the natural environment. The plaintiffs argued that the pre-feasibility study report had already confirmed that the project would not be economically feasible. The plaintiff claimed that, considering the value of tidal flats as carbon sinks is becoming increasingly important, the reclamation of tidal flats for an unnecessary new airport for aircraft—the most carbon intensive emitter in transportation—is also inconsistent with the carbon neutrality policy of the government. The plaintiff further argued that the basic plan violated the constitutional duty of the state to protect its citizen from climate disasters since the constitutional environmental right imposes a responsibility on the state to protect the environment for the enjoyment of future generations. Yeon-Tae Kim et al. v. Minister of Land, Infrastructure and Transport (Seoul Administrative Court, South Korea).