June 2024 Updates to the Climate Case Charts
Each month, the Sabin Center for Climate Change Law collects and summarizes developments in climate-related litigation, which we also add to our U.S. and global climate litigation charts. If you know of any cases we have missed, please email us at [email protected].
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #183:
FEATURED CASE
Supreme Court Invited Solicitor General to Present U.S. Views on Honolulu’s Climate Case Against Fossil Fuel Companies
The U.S. Supreme Court invited the Solicitor General to file a brief expressing the views of the United States on petitions for writ of certiorari seeking review of the Hawaii Supreme Court’s decision allowing Honolulu to proceed with its climate change lawsuit against fossil fuel companies. Justice Alito did not participate in the consideration of the petitions. The petitions present questions related to whether federal law preempts Honolulu’s state law claims. Sunoco LP v. City & County of Honolulu, No. 23-947 (U.S. June 10, 2024)
DECISIONS AND SETTLEMENTS
D.C. Circuit Denied Administrative Stay of EPA Rule Setting Greenhouse Gas Emissions Standards and Guidelines for Power Plants; Briefing on Stay Motions to Be Completed on June 18
Thirteen petitions for review were filed in the D.C. Circuit Court of Appeals challenging the U.S. Environmental Protection Agency’s (EPA’s) final rule repealing the Trump administration’s Affordable Clean Energy Rule and establishing new source performance standards for greenhouse gas emissions from new, modified, and reconstructed fossil fuel-fired electric generating units (EGUs) and emission guidelines for greenhouse gas emissions from existing fossil fuel-fired EGUs. The petitions were filed by a group of 25 states, led by West Virginia; two other states (Ohio and Kansas); the National Rural Electric Cooperative Association; trade associations representing the mining industry and companies involved in production of coal-fired electricity; a coalition of companies that own and operate EGUs, along with a trade group representing such companies; the Midwest Ozone Group, an affiliation of companies, trade organizations, and associations; Edison Electric Institute, a national association of investor-owned electric utility companies; two individual electric utilities; three unions; and a coal mining and mining services company. Twenty states, the California Air Resources Board, the District of Columbia, and four cities asked for leave to intervene in support of the final rule, as did five environmental and public health organizations. Edison Electric Institute also sought to intervene in support of certain aspects of the rule, including EPA’s authority to subcategorize EGUs and some of the rule’s compliance options and flexibilities. On May 17, 2024, the D.C. Circuit denied the 25 states’ request for an administrative stay and set a briefing schedule for stay motions. Briefing of the eight stay motions is scheduled to be completed on June 18. Arguments on the merits in the stay motions included challenges to EPA’s conclusion that carbon capture and sequestration was “adequately demonstrated” and “achievable.” Other merits arguments previewed in the stay motions included assertions that the final rule infringes on states’ discretion under Section 111(d) of the Clean Air Act; that the rule violates the major questions doctrine; and that EPA cannot regulate existing coal plants under Section 111(d) because it already regulates them under Section 112. West Virginia v. EPA, No. 24-1120 (D.C. Cir., filed May 8, 2024)
Maryland Trial Court Allowed Claims to Proceed Against Fossil Fuel Companies in Annapolis and Anne Arundel County Lawsuits
The Maryland Circuit Court for Anne Arundel County denied fossil fuel companies’ motions to dismiss claims by the City of Annapolis and Anne Arundel County that the companies’ “concealment and misrepresentation of their products’ known dangers—and simultaneous promotion of their unrestrained use—drove consumption, and thus greenhouse gas pollution, and thus the climate crisis.” With respect to personal jurisdiction, the court rejected the companies’ contention that they were not subject to the court’s general jurisdiction and also found that they had alleged “more than sufficient ‘contacts’ with Maryland which if shown can justify the invoking of the specific jurisdiction of this Court.” With respect to whether the plaintiffs stated a claim upon which relief can be granted, the court said it would exercise its discretion and defer a determination “until trial and/or until a further dispositive motion is considered after facts are discovered which can or cannot support the allegations.” The court dismissed the plaintiffs’ claims for punitive damages and also dismissed the American Petroleum Institute from the lawsuit, finding that the trade group was not a “person/merchant” within the meaning of the Maryland Consumer Protection Act. The court, however, granted the plaintiffs leave to amend their complaints to plead a separate count for conspiracy that included American Petroleum Institute. City of Annapolis v. BP p.l.c., No. C-02-CV-21-000250 (Md. Cir. Ct. May 16, 2024); Anne Arundel County v. BP p.l.c., No. C-02-CV-21-000565 (Md. Cir. Ct. May 16, 2024)
New York Federal Court Sent New York City’s Climate Consumer Protection Case Back to State Court
The federal district court for the Southern District of New York granted New York City’s motion to remand to state court its action against fossil fuel industry defendants under the City’s Consumer Protection Law. The City alleges that the defendants violated the Consumer Protection Law by misleading consumers about their products’ impact on climate and falsely representing that they are “environmentally responsible companies developing innovative green technologies and products.” The court rejected the companies’ six grounds for removal. First, the court ruled that even if federal common law could serve as a basis for the complete preemption exception to the well-pleaded complaint rule in the absence of a federal statute, federal common law could not preempt the City’s “garden-variety false advertising claims,” which the court said did not implicate either federal interests in regulating environmental pollution or the U.S.’s foreign affairs. Second, the court found that the federal officer removal statute did not apply for the same reason that the Second Circuit concluded it did not apply in Connecticut v. Exxon Mobil Corp.: “there is no causal nexus between Defendants’ work for the federal government and Defendants’ allegedly false and misleading advertisements.” Third, the court rejected federal enclave jurisdiction either based on extraction, production, or sale of fossil fuels on federal enclaves (which was not the subject of the complaint) or based on the “ridiculous” theory that the defendants’ allegedly misleading advertisements reach federal enclaves. Fourth, the court found that the defendants did not meet their heavy burden of proving that Exxon Mobil Corporation was fraudulently joined and therefore could not establish diversity jurisdiction. Fifth, the court rejected the contention that the City’s suit could be removed under the Class Action Fairness Act (CAFA), finding that a Consumer Protection Law cause of action can be brought only by the City and therefore “bears absolutely no similarity to a class action.” Sixth, the court rejected the contention that the City’s claims necessarily implicated First Amendment elements and was removable pursuant to the Grable exception to the well-pleaded complaint rule. The court granted the City’s request for costs and fees regarding five of the six bases for removal: three grounds for removal that the Second Circuit rejected in Connecticut (complete preemption, federal officer, and Grable) and federal enclaves and CAFA, which the court described as “objectively absurd” arguments. The court did not award costs and fees in connection with the defendants’ diversity jurisdiction argument, finding that it was not unreasonable for the defendants to make that argument. City of New York v. Exxon Mobil Corp., No. 1:21-cv-04807 (S.D.N.Y. May 8, 2024)
D.C. Circuit Affirmed Dismissal of Case Seeking Preparatory Materials for House Committee Hearing on Climate Change
The D.C. Circuit Court of Appeals affirmed the dismissal of a lawsuit seeking to compel, under the common law right of access, the disclosure of emails and recordings related to the House Committee on Oversight and Reform’s investigation of energy companies and their business practices and research on fossil fuels. The emails and recordings were “preparatory materials for a committee hearing” on climate change and therefore were “informal preliminary steps in a congressional investigation, not the recording of an ‘official … decision.’” The court held that sovereign immunity barred the claim. Schilling v. U.S. House of Representatives, No. 22-5290 (D.C. Cir. May 28, 2024)
Fifth Circuit Said States Lacked Standing to Challenge SEC Rule Requiring Fund Disclosures About ESG Votes
The Fifth Circuit Court of Appeals ruled that Texas, Louisiana, Utah, and West Virginia did not establish standing to challenge a U.S. Securities and Exchange Commission (SEC) rule requiring registered management investment companies to disclose their votes on environmental, social, and governance (ESG) matters. The states argued that the rule “provides benefits only to a narrow sliver of fund investors motivated by the ESG agenda,” and that the SEC acted arbitrarily and capriciously, including because the SEC did not consider whether the rule would “increase activist leverage and pressure on fund managers and cause disinvestment in securities of companies and industries targeted by ESG activists.” The Fifth Circuit found that the record did not establish that the states would incur economic injuries as investors. The court also found that there was insufficient evidence of infringement of a state’s “quasi-sovereign interest in the economic well-being of its interests” to support the states’ invocation of the doctrine of parens patriae as a basis for standing. Judge Ho concurred in the judgment; he agreed that the states did not establish standing but stated that they could refile if they believed they could “assemble stronger evidence of injury.” Texas v. Securities & Exchange Commission, No. 23-60079 (5th Cir. May 10, 2024)
D.C. Circuit Upheld Federal Reviews of San Juan Harbor Dredging Project
The D.C. Circuit Court of Appeals affirmed a lower court’s ruling that federal defendants did not act arbitrarily or capriciously when they reviewed the potential impacts of a proposal to dredge San Juan Harbor in Puerto Rico. The D.C. Circuit found that the petitioners had failed to argue to the U.S. Corps of Engineers that consideration of the environmental impacts of potential construction of a liquefied natural gas (LNG) terminal was required and therefore forfeited these LNG arguments. The court also found that the Corps’s analysis of cumulative impacts and environmental justice was adequate and rejected arguments that the Corps and the National Marine Fisheries Service did not properly consider the project’s effects on threatened coral species. El Puente v. U.S. Army Corps of Engineers, No. 23-5189 (D.C. Cir. May 3, 2024)
Seventh Circuit Stayed Injunction Preventing Land Exchange for Transmission Line
The Seventh Circuit Court of Appeals stayed the effectiveness of a preliminary injunction that barred federal defendants and developers of a transmission line from taking action to close an agreement to exchange land within the Upper Mississippi River National Wildlife and Fish Refuge for land held by the developers to facilitate construction of the transmission line through the refuge. Conservation groups argue that the federal defendants violated the National Environmental Policy Act, including by failing to consider climate change impacts. National Wildlife Refuge Association v. Rural Utilities Service, No. 24-1492 (7th Cir. May 2, 2024)
Texas Federal Court Said Exxon’s Case Seeking to Block Shareholder Climate Change Proposal Was Not Moot
The federal district court for the Northern District of Texas allowed Exxon Mobil Corporation (Exxon) to proceed with its lawsuit requesting a declaratory judgment that Exxon may exclude from its proxy statement a shareholder proposal supporting accelerated reduction of greenhouse gas emissions. The court concluded that the defendant shareholders’ withdrawal of the proposal did not moot the case because the defendants did not show that it was “absolutely clear” that the challenged conduct would not recur. Although the court rejected Exxon’s contention that it had personal jurisdiction over the two shareholders under the Securities Exchange Act of 1934, the court concluded it did have personal jurisdiction over one of the shareholders (Arjuna Capital) under Texas’s “long-arm” statute but not over the other defendant (Follow This). Five days after the court’s ruling, Arjuna Capital sent a letter to Exxon that included a “broader stipulation” that Arjuna “unconditionally and irrevocably covenants to refrain henceforth from submitting any proposal for consideration by Exxon shareholders relating to GHG or climate change.” Exxon argued that this commitment still did not moot the case. Exxon Mobil Corp. v. Arjuna Capital, LLC, No. 4:24-cv-00069 (N.D. Tex. May 22, 2024)
Texas Federal Court Certified Class for Action Against American Airlines for Retirement Plan Investments in Funds that Pursued ESG Objectives
The federal district court for the Northern District of Texas certified a class to pursue an action alleging that American Airlines, Inc. and related defendants breached their fiduciary duties under the Employee Retirement Income Security Act of 1974 (ERISA) by allowing funds that manage American Airlines employees’ retirement savings to vote proxies in support of ESG objectives. (The court noted that the plaintiff had decided to forgo a theory of liability based on the defendants’ inclusion of ESG funds as investment options.) Spence v. American Airlines, Inc., No. 4:23-cv-00552 (N.D. Tex. May 22, 2024)
Utah Federal Court Allowed Oil and Gas Leaseholder and State of Utah to Intervene in Challenges to Leases
The federal district court for the District of Utah allowed Anschutz Exploration Corporation (Anschutz) and the State of Utah to intervene to defend the issuance of 145 oil and gas leases covering public lands in Utah. Anschutz holds 54 of the leases and Utah asserted that it had regulatory and economic interests in the challenged leases. The court found that the motions to intervene were timely, that both Anschutz and Utah asserted interests sufficient to support intervention of right, that those interests could be impaired by the case, and that the federal defendants could not adequately represent the interests of Anschutz and Utah. Southern Utah Wilderness Alliance v. U.S. Department of the Interior, No. 2:23-cv-00804 (D. Utah May 10, 2024)
Citing Juliana, California Federal Court Said Youth Plaintiffs Lacked Standing for Constitutional Climate Case Against EPA but Allowed Them to File Amended Complaint
The federal district court for the Central District of California found that youth plaintiffs failed to establish standing in their putative class action alleging that EPA and its administrator violated their constitutional rights by allowing “dangerous levels of climate pollution” to accumulate in the atmosphere. The court stated that Juliana v. United States—in which the Ninth Circuit held that youth plaintiffs lacked redressability in their constitutional climate case against federal defendants—was “on all fours with this action.” The court found that, as in Juliana, the declaratory relief sought by the plaintiffs was unlikely to address their injuries, which included “economic harms, displacement, psychological harms, barriers to family formation, health impacts, educational deprivation, cultural and religious deprivation, and a diminished ability to seek happiness and an open future.” The court said the “only relief that could arguably mitigate Plaintiffs’ injuries is a judgment declaring Defendants’ use of discriminatory discount rates as unconstitutional”; the court further concluded, however, that the argument that ceasing to use such rates would result in EPA abating climate pollution based on best available science was “speculative” and that such a result “would require further court action.” The court was not persuaded by the plaintiffs’ efforts to distinguish Juliana or by arguments that Juliana was wrongly decided or that a 2021 Supreme Court decision concerning nominal damages supported the plaintiffs’ argument that declaratory relief could sufficiently redress an ongoing or impending injury. The court expressed skepticism that the plaintiffs could amend their allegations to demonstrate redressability, especially given the Ninth Circuit’s recent mandamus order directing the Juliana district court to dismiss that case. But the court granted the plaintiffs “one more chance” to amend the complaint. The plaintiffs filed their amended complaint on May 20, 2024. Genesis B. v. EPA, No. 2:23-cv-10345 (C.D. Cal. May 8, 2024)
New York Federal Court Said Companies’ Failure to Deliver Carbon Credits from Brazil Forest Projects Constituted Default
The federal district court for the Southern District of New York ruled that a failure by plaintiff companies to deliver 3.6 million carbon credits to the defendant company constituted an “Event of Default” under an agreement requiring one of the plaintiffs to deliver credits issued by a carbon credit registry and generated by one of two approved projects in Brazil in exchange for a $29.5 million prepayment. The plaintiff companies invest in carbon credit projects, and the defendant company “sources, invests in, and monitors carbon removal projects around the world and curates a large portfolio of carbon credits that it then resells.” The approved projects involved reducing emissions compared to a baseline of otherwise planned deforestation and forest degradation on large privately owned farmable properties in Brazil. The projects confronted delays, including delays related to overlaps with public park areas, threats by persons understood to be illegal loggers, and lack of access to the land due to social and political unrest related to the 2022 presidential election in Brazil. The court rejected the plaintiffs’ claim that they did not have an obligation to deliver carbon credits because the registry had not issued any carbon credits, which the plaintiffs unsuccessfully argued was a condition precedent to the obligation to deliver credits. The court also was not persuaded by the plaintiffs’ contentions that they were relieved from performance under the doctrines of impossibility and impracticability, due to political turmoil, low river levels that made travel to the sites impracticable, and delays due to changes in the verification process for credits. The court found that the plaintiffs “failed to show that the failure to obtain carbon credits … was unforeseen or could not be guarded against” and that the record reflected that the parties agreed to contract terms placing the risk of delay on the plaintiffs. Because the events that prevented issuance of the credits were foreseeable, the court also rejected the plaintiffs’ argument that the doctrine of frustration of purpose relieved them of their obligations. Zero Carbon Holdings, LLC v. Aspiration Partners, Inc., No. 23-cv-05262 (S.D.N.Y. May 1, 2024)
Court of International Trade Upheld Some Elements of Commerce Department Determination that Korea’s Emissions Permit Allocation Constituted Countervailable Subsidy but Remanded for Reconsideration of One Element
In the Court of International Trade’s (CIT’s) review of the U.S. Department of Commerce’s results on remand from an earlier CIT decision regarding the 2019 administrative review of the 2016 countervailing duty order on hot-rolled steel flat products from the Republic of Korea, CIT sustained the U.S. Department of Commerce’s determination on remand that the Emissions Trading System of Korea’s (K-ETS’s) allocation of additional emissions permits satisfied the financial contribution element of a countervailable subsidy. The court also sustained Commerce’s finding that the additional allocation conferred a benefit on Hyundai Steel. The court remanded Commerce’s finding on the specificity element of a countervailable subsidy, directing the agency to reconsider or reexplain its finding that the subsidy is specific (i.e., limits access to the subsidy to an enterprise or industry) either as a matter of fact or a matter of law. Hyundai Steel Co. v. United States, No. 22-00170 (CIT May 2, 2024)
New York Appellate Court Said State Climate Law Might Preempt New York City’s Greenhouse Gas Emissions Limits for Existing Buildings
The New York Appellate Division revived a cause of action asserting that New York State’s Climate Leadership and Community Protection Act (CLCPA) preempts New York City’s Local Law 97, which sets limits on greenhouse gas emissions from existing large buildings in the city. The court found that the claim invoked field preemption and that the City defendants failed to show that the CLCPA did not preempt the local law. In particular, the appellate court said it could be possible to conclude that the CLCPA savings clause providing that the CLCPA did not “relieve any person … of compliance with other applicable federal, state, or local laws … , including state air and water quality requirements and other requirements for protecting public health or the environment” did not apply to local laws regulating “greenhouse gas emissions reduction measures” such as Local Law 97. The appellate court pointed to a separate CLCPA provision that specifically addresses “greenhouse gas emissions reduction measures,” stating that “[n]othing in this act shall limit the existing authority of a state entity to adopt and implement greenhouse gas emissions reduction measures.” The Appellate Division affirmed the dismissal of causes of action for violations of the due process clauses of the U.S. and New York constitutions, as well as a facial challenge for vagueness. Regarding the vagueness challenge, the appellate court was not persuaded that Local Law 97 gave enforcement authorities “unfettered discretion in every case.” The appellate court noted that the law made a penalty mandatory if a building exceeded its emissions limit and that while the law allowed a court or administrative tribunal to consider mitigating factors, the factors were “not as vague as the ‘no apparent purpose’ standard” that applies to such claims. Glen Oaks Village Owners, Inc. v. City of New York, No. 2024-00134 (N.Y. App. Div. May 16, 2024)
California Appellate Court Rejected Argument that New Sea Level Rise Guidelines Required Additional CEQA Review
The California Court of Appeal affirmed the rejection of a California Environmental Quality Act (CEQA) challenge to the California Department of Toxic Substances Control’s (DTSC’s) approval of a Prospective Purchaser Agreement (PPA) for an 86-acre site in the City of Richmond. DTSC previously adopted a negative declaration for a Feasibility Study & Remedial Action Plan (FS/RAP) covering a portion of the site. The petitioners challenging the PPA approval alleged, among other things, that 2020 guidelines released by the State of California significantly increased the amount of expected sea level rise and that the increased rate of sea level rise would result in new or increased impacts from implementation of the selected remediation option. The appellate court agreed with the court below that the 2020 guidelines did not constitute new information that was not considered when the FS/RAP was approved, or that the information would require major revisions to the negative declaration. The court also noted that the plaintiffs had not addressed previous decisions holding that sea level rise is not an impact on the environment caused by the project. Mothers Against Toxic Housing v. California Department of Toxic Substances Control, No. A166861 (Cal. Ct. App. May 16, 2024)
NEW CASES, MOTIONS, AND OTHER FILINGS
Nineteen States Asked Supreme Court to Enjoin Five States’ Lawsuits Against Energy Companies
Alabama and 18 other states filed a motion in the U.S. Supreme Court for leave to file a bill of complaint against five states that are pursuing climate change lawsuits against energy companies. The five defendant states are California, Connecticut, Minnesota, New Jersey, and Rhode Island. The plaintiff states alleged that the defendant states “assert the power to dictate the future of the American energy industry … by imposing ruinous liability and coercive remedies on energy companies through state tort actions governed by state law in state court.” The plaintiff states contended that the lawsuits “threaten not only our system of federalism and equal sovereignty among States, but our basic way of life.” The plaintiff states argued that federal law must govern actions involving interstate gas emissions, and that the defendant states actions “exceed state authority, flout the horizontal separation of powers, usurp federal authority over a federal issue, and violate the prohibition on extraterritorial regulation embodied in the Commerce Clause.” They contended that the Supreme Court should exercise jurisdiction because there was no alternative forum in which the plaintiff states could protect their interests. The plaintiff states asked the Court to enjoin the defendant states “from seeking to impose liability or obtain equitable relief premised on either emissions by or in Plaintiff States or the promotion, use, and/or sale of traditional energy products in or to Plaintiff States.” Alabama v. California, No. 22O158 (U.S., filed May 22, 2024)
Environmental Organizations Said Federal Agencies Failed to Sufficiently Consider Alaska LNG Project’s Impacts on Protected Species
Center for Biological Diversity and Sierra Club filed a petition for review in the Ninth Circuit Court of Appeals challenging the biological opinions prepared pursuant to the Endangered Species Act regarding a liquefied natural gas (LNG) project in Alaska. In their announcement of the lawsuit, the organizations said federal agencies failed to fully examine and mitigate the project’s harms to polar bears, Cook Inlet beluga whales, and North Pacific right whales. Center for Biological Diversity v. Haaland, No. 24-3397 (9th Cir., filed May 30, 2024)
Challenges to Heavy-Duty Vehicle Greenhouse Gas Emissions Standards to Raise Question of Whether Carbon Dioxide Is an “Air Pollutant” and Assert Violations of Nondelegation and Major Questions Doctrine
Two petitions for review were filed in the D.C. Circuit Court of Appeals to challenge EPA’s “Phase 3” greenhouse gas emissions standards for heavy-duty vehicles. One petition was filed by 24 states, led by Nebraska. The other was filed by two trade associations: Western States Trucking Association, Inc. and Construction Industry Air Quality Coalition, Inc. Twenty-two states, the District of Columbia, and four local governments filed a motion for leave to intervene in support of the respondents; 10 public interest organizations filed a separate motion to intervene to defend the standards. The trade association petitioners submitted a statement of issues listing four issues they plan to raise: (1) whether carbon dioxide is an “air pollutant” under the Clean Air Act; (2) whether the final rule violates the nondelegation doctrine; (3) whether the rule violates the major questions doctrine: and (4) whether the rule is arbitrary, capricious, or otherwise contrary to law or fact. Nebraska v. EPA, No. 24-1129 (D.C. Cir., filed May 13, 2024)
States Alleged that Revisions to NEPA Regulations Improperly Elevated Climate Change and Environmental Justice
Twenty-one states, led by Iowa, filed a lawsuit in the federal district court for the District of North Dakota challenging the Council on Environmental Quality’s amendments to the implementing regulations for the National Environmental Policy Act (NEPA). The states alleged that the final rule “illegally seeks to transform NEPA’s well-developed and carefully delineated procedures for environmental reviews of proposed federal agency actions into a substantive set of requirements to achieve broad and vague policy goals,” including by elevating “atextual justice and climate change considerations.” The states asserted that the final rule violates NEPA, the Administrative Procedure Act, and the major questions doctrine. Iowa v. Council on Environmental Quality, No. 1:24-cv-00089 (D.N.D., filed May 21, 2024)
Lawsuit Challenged Logging Projects in White Mountain National Forest
A lawsuit filed in the federal district court for the District of New Hampshire sought to enjoin 3,000 acres of commercial logging and almost 12 miles of road construction in White Mountain National Forest in connection with two projects authorized by the U.S. Forest Service. The plaintiff alleged that the Forest Service did not undertake the required review under the National Environmental Policy Act (NEPA) and violated the National Forest Management Act (NFMA). Under NEPA, the plaintiff alleged that the Forest Service failed to take a hard look at environmental impacts, including impacts on climate. The complaint said the Forest Service did not quantify the greenhouse gas emissions that would result from logging and instead “concluded that project-specific emissions were too small to matter in comparison to global emissions and that the projects would yield net benefits for climate change and climate.” The complaint characterized these conclusions as “arbitrary.” The complaint also alleged that the Forest Service did not use best available science to assess climate impacts; disregarded its own science as well as applicable executive direction such as Executive Order 10472, which requires the Forest Service to “retain and enhance carbon storage”; and failed to consider cumulative climate effects of the projects. Under the NFMA, the plaintiff’s allegations included that the Forest Service failed to respond to new information regarding climate change. Standing Trees, Inc. v. U.S. Forest Service, No. 1:24-cv-00138 (D.N.H., filed May 16, 2024)
Trade Association Challenged Halt on LNG Exports
A trade association representing workers in the U.S. oil and gas industry filed a lawsuit in the federal district court for the Western District of Louisiana challenging the Biden administration’s January 2024 decision to pause new approvals of liquefied natural gas (LNG) exports to non-free trade agreement countries. The plaintiff asserted that the decision violated the Natural Gas Act, the Administrative Procedure Act, separation of powers, and the foreign Commerce Clause. The complaint’s allegations included that the decision to pause the LNG exports was “politically motivated to garner support and voters in an election year,” and that the Biden administration had admitted that the decision “stems in part from international pressure to follow a global agenda opposed to fossil fuels” and that “addressing the concerns of young climate-focused voters was at least partially responsible” for the decision. Oil & Gas Workers Association v. Biden, No. 2:24-cv-00646 (W.D. La., filed May 16, 2024)
Plaintiffs Said Federal Law Preempted Washington State Energy Code
A coalition of plaintiffs that included homeowners, builders, suppliers, unions, and utilities filed a lawsuit challenging the 2023 adoption of the Washington State Energy Code (Energy Code). They asserted that the Energy Code violates and is preempted by the federal Energy Policy and Conservation Act (EPCA) because the Energy Code “imposes regulations concerning the energy use and energy efficiency of EPCA-covered appliances that far exceed federal requirements and does not qualify for an exemption from preemption.” Riviera v. Anderson, No. 2:24-cv-00677 (W.D. Wash., filed May 15, 2024)
Lawsuit Said Environmental Review for Colville National Forest Failed to Adequately Consider Climate Change
Alliance for the Wild Rockies challenged the U.S. Forest Service’s decisions to proceed with a project that would open 36,400 acres of the Colville National Forest to commercial logging, pre-commercial logging, and burning. The complaint alleged that the Forest Service failed to take a hard look at the project’s impacts, including its contributions to climate change, and that the Forest Service failed to examine the reasonably foreseeable impacts that climate change would have on the project. Other alleged shortcomings in the environmental analysis related to climate change included failure “to perform sufficient analysis of … direct, indirect, and cumulative impacts on Forest vegetation, including old-growth and snag structures that furnish unique habitat for many species and help to mitigate climate change.” The complaint asserted violations of the National Environmental Policy Act, the National Forest Management Act, and the Administrative Procedure Act. Alliance for the Wild Rockies v. U.S. Forest Service, No. 2:24-cv-00157 (E.D. Wash., filed May 13, 2024)
States and Nebraska Trucking Association Challenged California’s Advanced Clean Fleets Program
Sixteen states, the Arizona State Legislature, and Nebraska Trucking Association filed a lawsuit in the federal district court for the Eastern District of California challenging California’s Advanced Clean Fleets regulation. The plaintiffs alleged that the regulation—which includes battery-electric truck mandates for “high priority” fleets, an internal-combustion truck ban for manufacturers, a drayage truck battery-electric requirement, and state and local government batter-electric truck requirements—would result in “dramatic and deleterious effects that extend far beyond the California border,” including increased costs to consumers, less efficient trucking, and strains on supply chains due to some fleet companies being forced out of business. The plaintiffs alleged that the regulation “masquerades as a rule for in-state conduct” but that “by leveraging California’s large population and access to international ports on the West Coast, Advanced Clean Fleets exports its ‘in-state’ ban nationwide, creating harms which are certain to reach Plaintiffs’ States.” The complaint asserted that the Clean Air Act and the Federal Aviation Administration Authorization Act of 1994 preempt Advanced Clean Fleets and that the program violates the dormant Commerce Clause. Nebraska v. Cliff, No. 2:24-cv-01364 (E.D. Cal., filed May 13, 2024)
More Challenges Filed to EPA Emissions Rule for Oil and Gas Sector
Eight additional petitions for review were filed in the D.C. Circuit Court of Appeals challenging EPA’s standards of performance for new, reconstructed, and modified sources and emissions guidelines for existing sources in the oil and natural gas sector. A total of 10 petitions have been filed challenging the final rule, and two motions for a stay of the rule have been submitted. New petitioners included (1) a trade association representing companies in the oil and gas industry in Michigan and an owner and operator of oil and gas wells in Michigan; (2) trade associations representing independent oil and natural gas producers and service companies, as well as land and royalty owners and other entities in the oil and gas industry; (3) a trade association representing “members engaged in the gathering, transportation, processing, treating, storage and marketing of natural gas, natural gas liquids, crude oil and refined products”; (4) a trade association representing the Texas oil and gas industry; (5) a trade association representing interstate natural gas transmission pipeline companies; (6) “a national trade association representing all aspects of America’s oil and natural gas industry”; (7) a trade association representing “33 leading independent oil and natural gas exploration and production companies in the United States”; and (8) three nonprofit organizations focused on environmental protection, which sought review of “certain discrete aspects of the final rule concerning the required destruction efficiency for flares and other control devices and the monitoring for these control devices.” A “top ten oil producer in the U.S.” filed a motion to intervene in support of state petitioners that previously challenged the rule. Nineteen states and the District of Columbia and 11 environmental organizations filed motions to intervene in support of the respondents. Texas v. EPA, No. 24-1054 (D.C. Cir.)
Lawsuit Sought to Compel FEMA to Define “Resiliency” and “Resilient”
Five organizations filed a lawsuit to compel the Federal Emergency Management Agency (FEMA) to conduct a rulemaking to define the terms “resilient” and “resiliency,” as required by the 2018 Disaster Recovery Reform Act (DRRA), which amended the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act). The complaint alleged that FEMA “spends billions of dollars each year to both fund recovery efforts and help communities with emergency planning and hazard mitigation” pursuant to the Stafford Act, and that the DRRA reflected “Congress’s directive for FEMA to focus on true ‘resilience’ in order to ‘help reduce costs and impacts,’” with “an important part of that directive” being the rulemaking to define the terms “resilient” and “resiliency.” The plaintiffs alleged that “[b]y properly defining what it means to build back communities so that they can both thrive in the face of climate chaos, and at the same time mitigate instead of exacerbate the fossil fuel emissions driving climate change, FEMA has an opportunity to play a vital role in the urgent renewable energy transition.” The complaint asserted that the failure to define the terms constituted agency action “unlawfully withheld or unreasonably delayed” under the Administrative Procedure Act. Center for Biological Diversity v. Criswell, No. 1:24-cv-01285 (D.D.C., filed May 2, 2024)
FOIA Lawsuit Sought Records from HUD About Energy Project Spending
Center for Biological Diversity (CBD) filed a Freedom of Information Act (FOIA) lawsuit in the federal district court for the District of Columbia seeking records from the U.S. Department of Housing and Urban Development (HUD) related to HUD’s funding for fossil fuel projects as compared to renewable energy alternatives. CBD submitted their FOIA request to HUD in May 2023, requesting records on a “transition from fossil fuels to renewable energy sources in connection with HUD programs and funding,” as well as information on HUD funding in fiscal years 2019, 2020, 2021, and 2022 related to fossil fuel infrastructure, renewable energy resources, and energy efficiency initiatives. Center for Biological Diversity v. Department of Housing & Urban Development, No. 1:24-cv-01286 (D.D.C., filed May 2, 2024)
Lawsuit Challenging EPA Approval of Western Lake Erie TMDL Alleged Failure to Account for Climate Change Uncertainties
The Board of Lucas County Commissioners, City of Toledo, and Environmental Law & Policy Center filed a lawsuit in federal district court in Ohio challenging EPA’s approval of a Total Maximum Daily Load for western Lake Erie (the Maumee Watershed Nutrient TMDL) under the Clean Water Act. The defects alleged by the plaintiffs in the TMDL include that it fails to incorporate an adequate “margin of safety.” One reason for this alleged inadequacy is “uncertainties raised by climate change.” The plaintiffs allege that “[c]limate change is making the HAB problem worse, as more intense storms drive more runoff from agricultural fields and warmer temperatures in Lake Erie promote more cyanobacteria growth. As rain becomes less predictable, agricultural operators are less able to time how and when they apply manure or commercial fertilizer to reduce risk of runoff.” Board of Lucas County Commissioners v. EPA, No. 3:24-cv-00779 (N.D. Ohio, filed May 1, 2024)
Plaintiffs Sought Emergency Relief in Case Alleging that Heat Policy in Texas Prisons Violates Eighth Amendment
Plaintiffs in a federal lawsuit challenging the Texas Department of Criminal Justice’s (TDCJ) heat-mitigation policy for prison facilities as constitutionally inadequate under the Eighth Amendment filed an emergency motion for preliminary injunction on April 25, 2024. In addition to a declaration that the policy is unconstitutional, the lawsuit and preliminary injunction motion also ask the federal district court for the Western District of Texas to enjoin TDCJ to maintain “a safe indoor temperature between 65° to 85° Fahrenheit” and other injunctive relief sufficient to protect the health and safety of the prisoners and to prevent cruel and unusual suffering from extreme heat conditions. The plaintiffs argued in the preliminary injunction motion that TDCJ officials are aware that temperatures will be dangerously hot in summer 2024 and that “extreme heat inside Texas prisons will continue to kill and seriously harm inmates.” The plaintiffs’ amended complaint, filed on May 7, 2024, alleged: “For many years now, the extreme heat has wreaked havoc on Texas’s prisons, coinciding with a dramatic increase in illnesses and deaths. And as temperatures increase with global climate change, the problem is only getting worse. Last summer was the second hottest on record in Texas, with some TDCJ units reaching an astonishing 149° Fahrenheit.” A hearing on the motion for preliminary injunction was scheduled for July 8. Tiede v. Collier, No. 1:23-cv-01004 (W.D. Tex. Apr. 25, 2024)
Youth Plaintiffs Filed Lawsuit to Block Alaska LNG Project
Youth plaintiffs filed a lawsuit in Alaska Superior Court asserting that statutory provisions requiring the Alaska Gasline Development Corporation to advance and develop the Alaska Liquefied Natural Gas (LNG) Project violate the plaintiffs’ public trust and substantive due process rights under the Alaska Constitution. The plaintiffs alleged that Alaska was “already in a state of climate disruption,” and that the Alaska LNG Project’s intended 30 years of operations “would ensure continuing and substantially elevated levels of climate pollution for decades, locking in increasing and worsening harms to Youth Plaintiffs,” who would be “uniquely vulnerable to and disproportionately injured by the climate harms” from the project. They alleged that “[e]very additional ton of climate pollution” would further disrupt the climate system and harm the plaintiffs. Alleged harms included temperature increases, heatwaves, and other heat-related changes; thawing permafrost; changing precipitation patterns, extreme weather events, and drought; loss of sea, river, and lake ice; ocean acidification; melting glaciers and sea level rise; and increasingly frequent and severe wildfires and smoke. The plaintiffs seek a declaratory judgment that the provisions violate their public trust rights to equal access to public trust resources and to sustained yield of public trust resources free from substantial impairment, as well as declarations that they have a fundamental right to a climate system that sustains human life, liberty, and dignity and that the statutory provisions violate that right. In addition, the plaintiffs ask the court to enjoin the defendants from taking further actions to advance or develop the Alaska LNG Project. Sagoonick v. State, No. 3AN-24-06508CI (Alaska Super. Ct., filed May 22, 2024)
Lawsuit Challenged CEQA Review for Highway Expansion Project
Three organizations filed a lawsuit in California Superior Court challenging the California Environmental Quality Act (CEQA) review for the Yolo 80 Corridor Improvement Projects, which would widen Interstate 80 and United States Route 50 through a 20.8-mile-long corridor in Solano, Yolo, and Sacramento counties. The organizations alleged that the California Department of Transportation failed to adequately analyze, disclose, and mitigate the impacts of the project, which they alleged would “impede the state’s climate objectives, worsen air pollution in vulnerable communities, and degrade valuable habitats.” Center for Biological Diversity v. California Department of Transportation, No. 24CV077619 (Cal. Super. Ct., filed May 29, 2024)
HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART
FEATURED CASE
Mexico: Appellate Court Reverses Lower Court and Suspends Resolution that Considers Some Fossil Fuel Energy Clean
On July 2023, Greenpeace Mexico filed a lawsuit against the Energy Regulatory Commission (Comisión Reguladora de Energía or CRE), challenging the “Resolution No. A/018/2023 of the Energy Regulatory Commission, which updates the reference values of the methodologies for calculating the efficiency of electric energy cogeneration systems and the criteria for determining efficient cogeneration, as well as the efficiency criteria and calculation methodology for determining the percentage of fuel-free energy established in Resolutions RES/003/2011, RES/206/2014, RES/291/2012 and RES/1838/2016, respectively.”
Essentially, the challenged resolution allows a fraction of the electricity generated by fossil gas-fired combined cycle power plants to be considered as clean energy, “relaxing” the criteria for efficient cogeneration and the definition of fuel-free electricity generation. The organizations argue that this agreement violated the right to a healthy environment, because it promotes the use of fossil fuels to generate energy that can be classified as “clean.” The consequence of the agreement is that the percentage of clean energy generated in Mexico will falsely increase, but greenhouse gas emissions will not be reduced. In addition, it is argued that this measure is regressive, since it eliminates the incentive to promote the generation of renewable energy and to reduce greenhouse gas emissions, and the resolution will not allow Mexico to comply with its international climate change obligations.
On July 21, 2023, the Third District Court in Administrative Matters Specialized in Antitrust, Broadcasting and Telecommunications denied the requested injunction to suspend the effects of the contested resolution.
On August 18, 2023, Greenpeace appealed the Court’s decision to deny the injunction. On April 18, 2024, the Appellate Collegiate Court overturned the Court’s decision and granted the injunction relief. (Greenpeace v. Energy Regulatory Commission (CRE), Appellate Collegiate Court, Mexico)
DECISIONS AND SETTLEMENTS
Estonia: Supreme Court Annuls Peat Extraction Permit Due to Climate Impacts
In 2020, BirdLife Estonia (Estonian Ornithological Society) filed a claim to the Tallinn Administrative Court, seeking to annul a 30-year permit for extracting peat that the Environmental Board had recently issued to OÜ Hiiu Turvas. The extraction site (Elbu V) is a habitat for the European golden plover (Pluvialis apricaria) and dunlin (Calidris alpina schinzii), both of whom are endangered species, and destroying the raised bog would also harm other species. According to the EU bird directive (2009/147/EC), the state must employ special measures for the protection of these two species. Furthermore, the site includes a priority habitat as defined by the EU nature directive (92/43/EEC) whose condition in Estonia is unfavorable. Before issuing the permit, the Environmental Board did not assess the extent to which peat extraction would damage this habitat nor its impact on the status of this type of habitat in Estonia.
Tallinn Administrative Court and Tallinn Circuit Court did not satisfy the claim nor the appeal.
In March 2024, the Supreme Court of Estonia satisfied the claim and annulled the peat extraction permit. The Court ruled that by destroying a raised bog—that is a natural habitat and the most important type of land carbon sink—and causing carbon emissions, peat extraction causes notable environmental nuisances. Avoiding these is to be considered a national interest in the meaning of the Earth’s Crust Act. These nuisances can only be allowed in case they are proportional to the benefit received from peat extraction.
The Court emphasized that when issuing a permit, the Board must take into account the targets set out in strategic development documents. In this case, the Court found that the Board should have assessed the impact of peat extraction on targets to increase carbon storage in bogs that are to be achieved primarily by restoring degraded wetlands and avoiding further draining bogs. The Board had also ignored targets to improve the status of raised bogs as habitats and to ensure the protection of all naturally occurring species in Estonia. These targets are an expression of the principles of sustainable use of natural resources and sustainable development that are stipulated in paragraphs 5 and 53 of the Estonian Constitution.
Furthermore, the Court explained the grounds for refusal of the permit set out in § 52 (1) (7) of the Environmental Code Act, according to which the Board must refuse the permit if in the course of the proposed activity, natural resources would clearly be used impractically. The Court stated that in the assessment of the practicality of the use of natural resources, the Board must not only consider whether the extracted resource has some kind of practical purpose (e.g., extracted peat can be used in agriculture), but whether the use of the resource as a whole, including the degradation of a natural ecosystem that provides many ecosystem services (including carbon capture and storage), is not wasteful.
The Court also ruled that the destruction of such a raised bog that is not under protection and where no protected species or habitats are found can still be considered a significant environmental nuisance that must be avoided according to the General Part of the Environmental Code Act. The Board had not determined whether destroying the habitat by peat extraction constitutes a significant environmental nuisance that must be avoided. (BirdLife Estonia vs. Environmental Board, Supreme Court, Estonia)
Italy: Court Dismisses Claims Against Italian Government for Failure to Meet GHG Emission Targets Due to Lack of Jurisdiction
On June 5, 2021, environmental justice NGO A Sud and more than 200 plaintiffs filed suit alleging that the Italian government, by failing to take actions necessary to meet Paris Agreement temperature targets, is violating fundamental rights, including the right to a stable and safe climate. The action, part of a campaign called Giudizio Universale (The Last Judgment), seeks a declaration that the government’s inaction is contributing to the climate emergency and a court order to reduce emissions 92% by 2030 compared to 1990 levels. According to an executive summary of the claim released by the plaintiffs, the government’s climate obligations stem from the Paris Agreement, EU regulations, and IPCC reports. The human right to a stable and safe climate is based on guarantees in Article 6 of the Treaty of the European Union (guarantee of fundamental rights), and Articles 2 (right to life) and 8 (right to privacy) of the European Convention on Human Rights, among others. These rights violations give rise to non-contractual liability of the Italian government under Article 2043 of the Italian Civil Code.
On December 14, 2021, the first hearing was held before the Civil Court of Rome in the form of written notes. In its reply, the Presidency of the Council of Ministers, represented by the “Avvocatura Generale dello Stato” (state lawyers), requested the Court to declare the complaint inadmissible and, in any case, to dismiss the applicants’ claims on the merits. On the matter of fact, the reply describes in depth the State’s policies and endeavors on climate change. On the matter of law, the reply deals with: (i) the absence of jurisdiction of the civil judge over activities pertaining to the legislative and executive powers of the State; (ii) the lack of standing rights of the applicants; and (iii) the impossibility of placing an individual responsibility on the Italian State for climate change and its impact.
The applicants sent their rebuttal notes on January 14, 2022. The second hearing (the first oral hearing) was held on June 21, 2022. The parties presented their legal arguments before the judge. The judge scheduled the next hearing for September 13, 2023.
Following the final hearing on September 13, 2023, the Judge of the Second Civil Section of the Court of Rome requested the parties’ closing statements and proceeded with the ruling.
In its judgment of February 26, 2024, the Court declared the claims inadmissible for absolute lack of jurisdiction (difetto assoluto di giurisdizione).
The Court applied the principle of separation of powers and the related case law. The Court pointed out that the claim entails a review of the sphere of powers that the Constitution reserves to the legislature.
In the Court’s opinion, “the interest for which compensation is claimed under Articles 2043 and 2051 of the Italian Civil Code does not fall within the category of legally protected subjective interests, since decisions relating to the methods and timescales for managing the phenomenon of anthropogenic climate change—which involve discretionary socio-economic assessments and in terms of cost-benefit in the various sectors of human life—fall within the sphere of attribution of the political bodies and cannot be sanctioned in the present proceedings. With the proposed civil action, the plaintiffs essentially ask the Court to annul the measures, including primary and secondary regulatory measures (...) that constitute the implementation of the political choices of the legislature and the government for the achievement of the objectives assumed at international and European level (in the short and long term) in violation of a cardinal principle of the order represented by the principle of separation of powers” (unofficial English translation, p. 12 of the judgment).
In the opinion of the plaintiff’s legal team, there are all grounds to challenge the judgment on appeal. (A Sud et al v Italy, Second Civil Section of the Court of Rome, Italy)
New Zealand: Appellate Court Unanimously Rejects Challenges to Oil Exploration Permits
In June 2021, a delegate of New Zealand’s Minister of Energy and Resources granted two petroleum exploration permits in the Taranaki region, under New Zealand’s Crown Minerals Act 1991. These permits were challenged by Students for Climate Solutions (now Students for Climate Action (SFCA), a student-led NGO. SFCA argued that, in deciding whether to grant oil exploration permits, the Minister was required to consider the climate change implications of the decision. This was for two reasons: (1) because New Zealand’s Climate Change Response Act 2002 section 5ZN permits all government decision-makers to take into account certain climate-related matters (specifically, New Zealand’s 2050 target, emissions budget, and reduction plan); and (2) climate change impacts should form part of the Minister’s obligation to consider the principles of the Treaty of Waitangi, an important Treaty between New Zealand’s government and Indigenous Māori communities, which is a mandatory consideration under the Crown Minerals Act. SFCA’s challenge was rejected by New Zealand’s High Court on August 24, 2022. While it acknowledged that petroleum exploration did have climate change impacts, the High Court concluded these impacts were not relevant to the Minister’s decision, and that the Minister had adequately considered the Treaty of Waitangi in his decision-making. The High Court found that not only was climate change not a mandatory consideration but was an irrelevant consideration under the Crown Minerals Act, which was instead intended to promote mining for economic benefit.
SFCA appealed to New Zealand’s Court of Appeal. The Court unanimously rejected the challenge on May 7, 2024. The majority observed that climate change was not an explicit consideration listed under the factors the Minister was required to consider under section 29A of the Crown Minerals Act. It further rejected SFCA’s argument that climate change considerations were impliedly required by the Act’s purpose, relying instead on the Crown Minerals Act’s legislative history to determine that the Act was intended to: (1) support mineral exploration and mining for New Zealand’s economic benefit; and (2) allow for petroleum exploration in the Taranaki region in the interests of facilitating a “just transition.” The majority of the judges took no position as to whether a decision-maker under the Crown Minerals Act was permitted to consider climate change, as set out in section 5ZN of the Climate Change Response Act 2002. The Court specifically distinguished the Minister’s obligations from that of the decision-maker in Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6), an Australian case, where the relevant statute expressly required the decision-maker to consider principles of “ecologically sustainable development.” However, Justice Mallon, in a concurring opinion, took the view that section 5ZN of the Climate Change Response Act does permit a decision-maker in this context to consider New Zealand’s overall 2050 emissions target, emissions budget, and relevant emissions reduction plans.
On the Treaty of Waitangi challenge, the Court of Appeal accepted that climate change might be relevant as a component of the Minister’s overall obligation toward Māori. However, it was sufficient that the Minister had considered localized impact on Māori iwi (tribes) in the neighboring area, rather than climate change’s long-term disproportionate impact on Māori as a whole. (Students for Climate Solutions Inc v. Minister of Energy and Resources, Court of Appeal of New Zealand, New Zealand)
Norway: Oslo Court of Appeals Bifurcates Case Challenging Development of Oil and Gas Fields in Norway
On June 29, 2023, two environmental NGOs, Greenpeace Nordic and Natural og Ungdom (Nature & Youth), challenged three administrative decisions whereby the Norwegian Energy Ministry approved the plan for the development and operation of the oil and gas fields of Breidablikk, Yggdrasil, and Tyrving in the North Sea. The three fields in question have been subject to impact assessments by the companies that are operators and licensees for the fields. However, these impact assessments do not include combustion (Scope 3) emissions from the oil and gas produced.
In the absence of administrative or specialized environmental courts in the Norwegian legal system, the lawsuit occurred in a civil court. The plaintiffs based their challenge on various legal grounds, including Section 4-2, second paragraph, of the Petroleum Act, alongside Section 22a of the Petroleum Regulations. The interpretation of these statutes was guided by Article 112 of the Norwegian Constitution, emphasizing the right to a healthy environment. Additionally, the challenge was grounded in compliance with the EU Directive on Environmental Impact Assessments (EIA Directive). The plaintiffs also invoked legal sources such as Articles 2 and 8 of the European Convention on Human Rights (ECHR), on the right to life and right to respect for private life and family life and home, respectively, both independently and in conjunction with Article 14 of the ECHR, prohibiting discrimination. Furthermore, the challenge drew support from Section 104, second paragraph, of the Norwegian Constitution, which focuses on the dignity rights of children and the obligation to incorporate their best interests, and Article 3 of the UN Convention on the Rights of the Child, on the best interests of the child. Further legal theories encompass Norway’s Nature Diversity Act and Public Administration Act.
Essentially, the plaintiffs argued that the assessment of Scope 3 emissions should have been conducted before issuing the three administrative decisions. In contrast, the Ministry of Petroleum and Energy, now the Ministry of Energy, asserted that a general-level assessment of Scope 3 emissions by the Ministry sufficed and that there was no explicit requirement for this assessment to be integrated into the specific impact assessments for the Breidablikk, Yggdrasil, and Tyrving fields.
On January 18, 2024, the Oslo District Court concluded that all three decisions were unlawful. There is a legal requirement that Scope 3 emissions must be subject to an impact assessment pursuant to Section 4-2 of the Petroleum Act and Section 22a of the Petroleum Regulations, interpreted in light of Article 112 of the Norwegian Constitution (on the right to a healthy environment). This also follows from Article 4 no. 1 of the EU EIA Directive, Article 3 no. 1. Conversely, for the three challenged administrative decisions, no impact assessment of Scope 3 emissions had been carried out, contrary to the Norwegian Supreme Court’s ruling in the first Norwegian Climate Case. By referring to the mentioned Supreme Court’s decision, the Oslo District Court asserted that the greater the consequences of a measure under review, the stricter the EIA requirements. Similarly, the greater the consequences of a measure, the more thorough the court’s procedural review must be. For petroleum activities, courts should not be reluctant to review cases on procedural grounds, in this case, the EIA (p. 27). Differently from the first Norwegian Case, where the challenged decision sprang from a Parliament’s resolution, the challenged decisions are of the Ministry’s competence, yielding to more judicial scrutiny. In connection to such scrutiny, the Court cited the IPCC AR6, comparative case law, and expert opinions heard during the case hearing.
Further, the Court concluded that there is no legal obligation to consider the best interests of children in connection with each individual decision on a plan for development and operation (PDO) of petroleum activities. The Court, therefore, concluded that the decisions are not contrary to section 104 of the Norwegian Constitution and Articles 3 and 12 of the UN Convention on the Rights of the Child. The Court concluded that the decisions are not contrary to Articles 2, 8, and 14 of the European Convention on Human Rights (ECHR), pending a challenge to the mentioned Supreme Court’s decision. Remarking on remedies, the application for a temporary injunction was granted in that the state is prohibited from adopting other decisions that require valid PDO approval for Breidablikk, Yggdrasil and Tyrving until the validity of the decisions has been finally decided. The state, represented by the Ministry of Petroleum and Energy, was ordered to reimburse the plaintiffs’ legal costs in connection with the case (NOK 3 260 427, circa USD 309,833.49- incl. VAT in compensation for legal costs to the plaintiffs). In addition, the court’s fee will be included.
On May 16, 2024, the Appeals Court in Oslo (Borgarting lagmannsrett) decided to bifurcate the case. The State’s appeal against the Oslo District Court’s ruling in the injunction case of January 18, 2024, will be heard during the Court of Appeal’s appeal hearing concerning the main case, but the right to enforce the District Court’s temporary injunction is suspended until the Court of Appeal has ruled on the appeal against the District Court’s ruling. (Greenpeace Nordic and Nature & Youth v. Energy Ministry (The North Sea Fields Case), Oslo District Court, Norway)
UK: Court of Appeals Rules that Secretary of State for Environment and Food and Rural Affairs Under No Obligation to Reduce Emissions in Food and Farming
In June 2022, the UK government published its Food Strategy. According to the government the strategy “will help ensure we deliver our ambition for a prosperous agri-food sector, and that healthier and more sustainable diets can be achieved by all.” The Strategy was challenged on public law grounds by Global Feedback, a campaigning organization concerned with a sustainable food system.
Both the independent review of the National Food Strategy written by Henry Dimbleby and commissioned by the government in 2019 and the UK Climate Change Committee (CCC) have identified substantial reductions in meat and dairy as essential to tackle climate change. Feedback argued that the government’s failure to incorporate this advice, in particular the CCC’s recommendations, or explain why it opted to not adopt their expert recommendations was unlawful.
In December 2022, the High Court refused permission for the claim to proceed to trial. However, in June 2023, the Court of Appeal reversed that decision and heard the claim in October 2023.
At issue is whether section 13 of the Climate Change Act 2008 (the duty to prepare proposals and policies for meeting the UK carbon budgets) was engaged with the adoption of the Food Strategy.
The judgment handed down in December 2023 dismissed the claim for judicial review, ruling that the Secretary of State for Environment and Food and Rural Affairs was under no obligation to develop policies to reduce emissions in food and farming within the government’s Food Strategy.
The court considered the Secretary of State for Energy Security and Net Zero’s duty under section 13 of the Climate Change Act 2008 to be economy wide and not to be divided amongst the secretaries of state for different government departments. The adoption of the food strategy by the environment secretary was not therefore an activity caught by section 13.
A second question was, when adopting the Food Strategy, did either secretary of state need to be aware of, give significant weight to, and give cogent reasons for departing from, the advice of the Climate Change Committee on diet and climate change? Because the court found section 13 did not apply, this second question did not arise. However, the Court nonetheless considered it, coming to the clear conclusion that the law does not impose these duties. (Global Feedback Ltd v Secretary of State for Environment, Food & Rural Affairs, Court of Appeals, UK)
NEW CASES, MOTIONS, AND OTHER FILINGS
Japan: Plaintiffs Appeal Tokyo High Court Dismissal of Claims Against New Coal-Fired Power Plant
On May 27, 2019, 45 Japanese citizens filed suit to block the construction of a new coal-fired power plant. The plaintiffs filed a legal challenge against the Japanese Minister of Economy, Trade and Industry, seeking cancellation of the notice of finalization of the environmental impact assessment for the construction of two new coal-fired generating units—totaling 1,300 MW—at the Yokosuka power plant. The plaintiffs allege that JERA, the plant operator, improperly exploited a streamlined assessment process for replacements or upgrades that the Japanese Government created after the Fukushima Daiichi nuclear accident.
On January 27, 2023, the Tokyo District Court delivered a judgment that dealt with the request to cancel the Notice of Confirmation issued by the Minister of Economy, Trade and Industry, who confirmed the Environmental Impact Assessment of JERA under Article 46 (17) (ii) of the Electricity Business Act. Firstly, the judgment discussed if the Notice of Confirmation was considered a disposition against which an administrative complaint could be made. On this point, the Court determined that the Notice of Confirmation was considered a disposition within the meaning of Article 3 (2) of the Administrative Case Litigation Act since the recipient of the Notice was an essential requirement for starting the operation of a power plant and granted legal status to JERA. Secondly, the judgment discussed if the Plaintiffs had standing and to what extent claims could be made. The Court stated that those persons who lived close to the coal-fired power plant and were likely to directly suffer significant damage from air pollution had legal interests to request the cancellation of the Notice of Confirmation. On the other hand, the Court stated that the damage from climate change could not be considered an individual interest to be protected by law. Thus, the Court recognized the standing of the Plaintiffs who lived within 20 km of the coal-fired power plant related to air pollution but did not recognize the standing and claims related to climate change and CO2 emissions. Lastly, the judgment discussed if the Notice of Confirmation was legal. The Court stated that the consideration of the alternative fuels was not obligatory and the use of the simplified procedure of the assessment was rational when the nature of the power plant (in this case, replacement) fell under the scope of the rationalized guidelines. Therefore, the use of the simplified procedure in accordance with the rationalized guidelines was not against the Power Plant Assessment Ordinance and there were no procedural defects in the assessment of the impact of air pollution. Moreover, the Court stated that there were no reasons to predict that the level of the environmental impact would increase by the construction. The Court concluded that the Notice of Confirmation was legal as its content was adequate and there was no deviation nor abuse of power by the Minister.
On the same day, the Citizens’ Committee released a statement saying that the judgment was unjust, for the Court rejected the standing of the plaintiffs in relation to climate change and determined that the evaluation of PM 2.5 and consideration of the use of alternative fuels were not necessary.
On February 9, 2023, the citizens submitted a statement of appeal, and the following arguments have been made in the appeal procedure.
Firstly, the citizens claim that the judgment of the District Court did not recognize the danger of climate change as fact, although the significant damage caused by climate change such as an increase in the number of extremely hot days and also an increase in the precipitation have been observed in their residential area. They particularly emphasized the destruction of marine ecosystems due to the impact of climate change and the fact that fishermen are being deprived of their means of livelihood.
Secondly, the citizens contest their lack of standing with regard to GHG emissions. The citizens argue that their health and living environment are exposed to risks and the interests to not suffer damage from GHG emissions should not be absorbed into public interests which do not assign standing but should be recognized as individual concrete interests.
Thirdly, the citizens argue that the lack of consideration of the use of alternative fuels is a serious procedural flaw in the Notice of Confirmation. They also contest the District Court’s inadequately wide recognition of governmental discretion on issuing the alleged notice.
Fourthly, the citizens argue that there have been procedural flaws during the EIA, including the lack of consideration of carbon dioxide emissions at the planning phase. They also contend that the conducted assessment ignores the perspective of environmental conservation through transparency of the decision-making process and effective public participation, which is a fundamental requirement of EIA, and that the assessment did not examine the consistency with the Paris Agreement.
Finally, the citizens argue that the use of the simplified EIA procedure is illegal since the present plan does not meet the criteria, such as the reduction of environmental impact as a result of the replacement of the power plants.
On February 22, 2024, the Tokyo High Court dismissed all of the citizensʼ (appellants’) appeals. Firstly, regarding the non-recognition of the threat of climate change in the first instance judgment, the court recognized the danger of climate change as fact, citing both the IPCC Fifth Assessment Report and IPCC Special Report on Impacts of Global Warming of 1.5°. The court stated that “Indeed, it is a serious and grave situation that climate change is causing weather disasters and changes in ocean conditions in various parts of the world, including Japan, and causing various damages to people.” On this point, the court acknowledged the effects of climate change on marine ecosystems, in response to the appellants’ claims. Secondly, concerning the standing, the court stated that the Basic Matters relating to the Guidelines to be Established by the Competent Minister in Accordance with the Provisions of the EIA Act, as well as Ministerial Order of EIA, clearly treats GHG differently from other evaluation items for which studies, forecasts, and assessments should be conducted to ascertain the effects on human health and the living environment, with the aim of ensuring the protection of human health and the preservation of the living environment.
Consequently, the court concluded that the regulations governing CO2 did not include the intent to protect the individual interests of each person. Furthermore, it stated that “the interest to not suffer damage caused by global warming due to CO2 cannot be legally protected as concrete individual interests that are not absorbed by general public interests” because the alleged power plant is not considered to particularly increase the threat of damage in relation to a specific range of individuals. Thirdly, regarding the non-consideration of the alternatives of fuel sources, the court denied illegality because the based regulations of the conducted EIA “only require consideration of multiple alternatives for the structure or layout of the power generation facilities, the location where the project will be implemented, or the scale of the project.”
Fourthly, regarding the fact that carbon dioxide has not been selected as a consideration factor at the planning phase, the court stated that “The annual emissions of CO2 from the operation of the new power plant (approximately 7.26 million tCO2/year) are only about 1/5000th of the global CO2 emissions in 2015 and about 0.64% of Japan’s total CO2 emissions in 2006. The CO2 emitted by the thermal power plant itself does not directly affect the environment. It causes climate change on a global scale in combination with emissions from other sources, to materialize natural disasters resulting in various types of damage. Therefore, it is difficult to conclude that the CO2 emissions from the new power plant alone will significantly increase the scale or frequency of damage caused by disasters due to global warming.” Additionally, the court noted that the alleged operator plans to adopt USE power generation equipment to reduce CO2 emissions. Further, the EIA Guideline for power plants states that CO2 is not an item that is expected to have a significant environmental impact in a typical project. Consequently, the court concluded that it was not illegal not to select CO2 as a consideration factor in the planning stage. Fifthly, regarding the application of the Improvement and Replacement Rationalization Guideline, the applied “Simplified Replacement Assessment” in this case is principally applicable in the case of replacement when the environmental impact has been reduced. In reality, however, the power plant before the replacement in this case had hardly been in operation since 2000. Thus, in 2015, when the construction of the two power plants was planned, the local air quality had improved considerably and steadily. However, the court held that, even under these circumstances, a reduction in the actual environmental impact compared to recent operations was not a necessary requirement for the application of the Simplified Replacement Assessment. Therefore, there was nothing illegal in applying this type of Assessment on the grounds that emissions were lower than in 1970, when the plant was operating at maximum capacity.
On March 5, 2024, the plaintiffs appealed to the Supreme Court of Japan, claiming violation of human rights, due process, and procedural defect of environmental impact assessment. (Yokosuka Climate Case, Tokyo High Court, Japan)
Norway: WWF Brings Suit Against Norwegian Government for Opening Seabed Up for Mining
The World Wildlife Fund (WWF) is challenging a Norwegian parliamentary decision to open up vast areas of the seabed for mining. The organization argues that the environmental impact assessment (EIA) on which the decision was based is inadequate. In April 2024, WWF notified the government of its intention to sue if the decision was not reversed.
WWF maintains that the EIA does not meet the minimum requirements set out in the Norwegian Subsea Minerals Act §2-2. The organization also points out that the Norwegian Environment Directorate has expressed similar concerns.
WWF further argues that the EIA shows that the Norwegian government does not have sufficient knowledge to assess the environmental impacts of seabed mining. Without this knowledge, it is impossible to properly assess the consequences of exploration and extraction activities.
WWF’s lawsuit aims to prevent the Norwegian government from violating the law by opening up a new and potentially destructive industry without adequately assessing the consequences. The organization believes that this would set a dangerous precedent and could lead to irreversible environmental damage.
Several Norwegian political parties, including the Socialist Left Party, the Liberal Party, the Red Party, the Green Party, and the Christian People’s Party, voted against the decision to open up the seabed for mining. These parties share WWF’s concerns about the inadequacy of the EIA and the potential environmental risks of seabed mining.
WWF urges the Norwegian government to reconsider its decision and conduct a more thorough EIA that takes into account the full range of potential environmental impacts of seabed mining. (WWF Seabed Mining Case, Norway)