March 2022 Updates to the Climate Case Charts

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

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #156:

FEATURED CASE

Tenth Circuit Ruled that Colorado Municipalities’ Climate Case Against Energy Companies Belonged in State Court

On February 8, 2022, the Tenth Circuit Court of Appeals affirmed the remand order sending a case brought by three Colorado municipal governments alleging climate change-based claims against energy companies back to state court. In a 2020 decision, the Tenth Circuit affirmed the remand order but only reached the question of whether the defendants had properly removed the case based on the federal officer removal statute. In 2021, however, the Supreme Court vacated that decision after holding in BP p.l.c. v. Mayor & City Council of Baltimore that appellate jurisdiction over remand orders such as this one, where federal officer removal was one of the asserted grounds for removal, extends to the entire remand order, and not just to federal officer removal. In its February 8 decision, the Tenth Circuit again considered and rejected federal officer removal as a basis for federal jurisdiction, concluding that the companies did not establish that one of the defendants, ExxonMobil Corporation (Exxon), “acted under” a federal officer by complying with the terms of its outer continental shelf leases. Second, the Tenth Circuit found that federal district courts would not have original jurisdiction over the municipal governments’ case. The Tenth Circuit held that neither federal common law nor the Clean Air Act completely preempted the municipalities’ state-law claims. The Tenth Circuit distinguished the Second Circuit’s 2021 decision affirming the dismissal of New York City’s climate change-based claims against energy companies, noting that the Second Circuit’s decision was not in the removal context, which allowed the Second Circuit to consider the companies’ ordinary (as opposed to complete) preemption defense. The Tenth Circuit also held that there was no “substantial federal question” (i.e., Grable) jurisdiction because the federal issues asserted by the companies—related to foreign affairs and weighing of the costs and benefits of fossil fuel production—were neither necessary to the municipalities’ claims nor substantial to the federal system. In addition, the Tenth Circuit rejected the companies’ argument that there was federal enclave jurisdiction based on the complaint’s allegations of injuries within Rocky Mountain National Park and the Uncompahgre National Forest. The Tenth Circuit also found that there was not a sufficient connection between the municipalities’ claims and Exxon’s operations on the outer continental shelf to provide a basis for jurisdiction under the Outer Continental Shelf Lands Act. Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc., No. 19-1330 (10th Cir. Feb. 8, 2022)

DECISIONS AND SETTLEMENTS

Hawai‘i State Court Allowed Honolulu to Proceed with Climate Change Case Against Fossil Fuel Companies; Ninth Circuit Appeal of Remand Order Will Await Outcome of County of San Mateo Appeal

A Hawai‘i trial court denied fossil fuel companies’ motion to dismiss the City and County of Honolulu’s climate change lawsuit for failure to state a claim. The court described the case as “an unprecedented case for any court, let alone a state court trial judge,” but concluded that it was “still a tort case” and “based exclusively on state law causes of action,” primarily failures to disclose, failures to warn, and deceptive marketing. The court distinguished the Second Circuit’s decision in City of New York v. Chevron Corp., which affirmed the dismissal of purported state-law claims grounded in fossil fuel companies’ alleged production, marketing, and sale of “massive quantities of fossil fuels” despite their knowledge that use of the fuels would lead to the accumulation of greenhouse gases in the atmosphere. The Hawai‘i court noted that the defendants in this case framed Honolulu’s claims as seeking “de facto regulation” of global fossil fuel emissions, much as the Second Circuit framed New York City’s claims as targeting “lawful commercial activity” in a way that would compel development of pollution control measures, thereby regulating cross-border emissions. The Hawai‘i court, however, found Honolulu’s framing of its claims as traditional tort law claims to be “more accurate.” Given the plaintiffs’ framing of their claims, the Hawai‘i court concluded that neither the Clean Air Act nor federal common law preempted Honolulu’s claims. The court found “no unique federal interest” in the alleged failure to disclose harms or in the alleged deceptive promotion of fossil fuels, no “significant conflict” between any “concrete and specific” federal policy or interest and the application of Hawai‘i law, and “no concrete showing” by the defendants “that a damages award in this case would somehow regulate emissions.” In addition, the court rejected contentions that the out-of-state or international character of some of the conduct at issue made preemption appropriate. Regarding defendants’ arguments that this case and other climate change cases are based on “artful pleading,” the court stated: “Respectfully, we often see artful pleading in the trial courts, where new conduct and new harms first arise.” The court continued: “Here, the causes of action may seem new, but in fact are common. They just seem new—due to the unprecedented allegations involving causes and effects of fossil fuels and climate change. Common law historically tries to adapt to such new circumstances.” The court directed the parties to formalize what it called the “brief outline” that constituted its ruling and also noted that it would address motions to dismiss on personal jurisdiction or due process grounds in separate orders that it hoped to finish “this week or next.” City & County of Honolulu v. Sunoco, LP, No. 1CCV-20-0000380 (Haw. Cir. Ct. Feb. 22, 2022) For more analysis of the decision, see Sabin Center Climate Law Fellow Korey Silverman-Roati’s post in the Climate Law Blog.

The fossil fuel companies’ appeals of the remand orders in Honolulu’s case and the County of Maui’s case are still pending in the Ninth Circuit, which heard oral argument on February 17, 2022. On February 22, the Ninth Circuit vacated the submission of the case and ordered that further proceedings be held in abeyance until the mandate is issued in County of San Mateo v. Chevron Corp., in which the Ninth Circuit will review the entire remand order—not just the federal-officer removal issue—following the Supreme Court’s remand of the case after the Court’s decision in BP p.l.c. v. Mayor & City Council of Baltimore. City & County of Honolulu v. Sunoco LP, No. 21-15313 (9th Cir.)

Louisiana Federal Court Enjoined Biden Administration from Using Social Cost of Greenhouse Gases Estimates

The federal district court for the Western District of Louisiana granted a motion by Louisiana and nine other states for a preliminary injunction enjoining federal agencies from relying on the work product of the Interagency Working Group on Social Cost of Greenhouse Gases (IWG) and from using any social cost of greenhouse gases (SC-GHG) estimates based on the global effects of greenhouse gases. The court ordered the federal defendants to return to using the 2003 Circular A-4 guidance when conducting regulatory analysis, including the guidance’s recommended default discount rates of 3 and 7 percent. President Biden established the IWG in Executive Order 13990 after the Trump administration disbanded the Obama-era Interagency Working Group in 2017. The district court found that the plaintiff states had standing to bring their suit because mandatory implementation of the SC-GHG estimates would impose new obligations and increase regulatory burdens on them in cooperative federalism programs such as state implementation plans under the Clean Air Act. The court further found that these injuries were actual and imminent, that the alleged injuries were traceable to Executive Order 13990 and the SC-GHG estimates, and that a return to Circular A-4 would redress the injuries. The court also found that the SC-GHG estimates constituted final agency action under the Administrative Procedure Act, that the states’ interests fell within the “zone of interests” of the APA and other statutes under which they made claims, and that there was no statutory intent to preclude judicial review. On the merits of the preliminary injunction motion, the court found that the plaintiff states were likely to succeed on the merits. First, the court found that Executive Order 13990 exceeded the President’s authority by mandating consideration of global effects in contravention of congressional intent regarding legislative rulemaking and by promulgating “fundamentally transformative legislative rules” in violation of the major questions doctrine. In addition, the court found that the SC-GHG estimates were promulgated in violation of the APA’s notice and comment requirements and that the estimates were arbitrary and capricious and contrary to law. The court also found that the plaintiff states’ alleged harms—including harm to their economies and revenues from more stringent regulation, harm from additional duties to implement cooperative federalism programs, and harm from divestment of procedural rights—were sufficient to support injunctive relief, that the balance of injuries weighed in their favor, and that the public interest and balance of equities weighed in favor of an injunction. Louisiana v. Biden, No. 2:21-cv-01074 (W.D. La. Feb. 11, 2022), No. 22-30087 (5th Cir.). The Biden administration appealed the preliminary injunction and sought a stay both in the district court and in the Fifth Circuit.

Delaware Federal Court Stayed Its Remand Order in Delaware’s Climate Case Against Fossil Fuel Companies

On February 8, 2022, the federal district court for the District of Delaware granted fossil fuel industry defendants’ motion to stay execution of the court’s January 5 order remanding the State of Delaware’s climate change case to state court. The court stayed the remand order until the Third Circuit issues its ruling on the defendants’ appeal. The court agreed with the defendants that removal jurisdiction issues for climate change-related state law claims left “reasonable room for disagreement” and noted that each of the defendants’ removal grounds raised an issue of first impression for the Third Circuit. The court therefore found the defendants had made “the necessary showing of a likelihood of success on the merits.” The court also found that the defendants demonstrated they would likely suffer irreparable harm because “there may be no practical way to ‘un-ring the bell’ of the state court’s intervening rulings if the Third Circuit ultimately determines that the case should proceed in federal court.” In addition, the court found that a stay pending appeal would not substantially harm Delaware and would serve the public interests of judicial economy and conservation of public resources. Delaware v. BP America Inc., No. 1:20-cv-01429 (D. Del. Feb. 8, 2022)

Fourth Circuit Vacated Endangered Species Act Determinations for Pipeline Due to Failure to Consider Climate Impacts

The Fourth Circuit Court of Appeals vacated the U.S. Fish and Wildlife Service’s (FWS’s) 2020 biological opinion and incidental take statement for the Mountain Valley Pipeline. The court found that the FWS failed to adequately evaluate the impacts of climate change on two endangered fish, the Roanoke logperch and candy darter. Although the court stated that it was “not clear” whether the FWS should consider climate change “as part of the environmental-baseline analysis, the cumulative-effects analysis, or both,” the court concluded that in this case “it makes no difference” because the FWS did not properly evaluate climate change at all. The court noted that there was only one sentence discussing the impacts of climate change on the logperch in the biological opinion and no mention of climate change in connection with the darter. The court then rejected the FWS’s arguments that the logperch and darter models used in the analysis implicitly accounted for climate change as “impermissible post hoc rationalizations.” The Fourth Circuit further found that even had the FWS articulated the modeling rationale, the analysis would be arbitrary and capricious. The Fourth Circuit also found more generally that the FWS failed to adequately evaluate the environmental baseline and cumulative effects on the logperch and darter but rejected other arguments made by the petitioners. Appalachian Voices v. U.S. Department of the Interior, No. 20-2159 (4th Cir. Feb. 3, 2022)

Challenge to “Showerhead” Definition Dismissed After Biden Administration Reinstated Previous Definition

The Seventh Circuit Court of Appeals granted Alliance for Water Efficiency’s motion for voluntary dismissal of a proceeding challenging the U.S. Department of Energy’s (DOE’s) December 2020 promulgation of a rule amending the regulatory definition of “showerhead” in DOE’s energy conservation standards after the Biden administration reinstated the previous definition in December 2021. The December 2020 definition allowed each showerhead in a product containing multiple showerheads to be considered separately for purposes of determining compliance with the 2.5 gallon per minute maximum water use threshold. In its December 2021 rule, DOE determined that the December 2020 definition was inconsistent with the Energy Policy and Conservation Act’s purposes of energy and water conservation. Alliance for Water Efficiency v. U.S. Department of Energy, No. 21-1167 (7th Cir. Mar. 1, 2022)

D.C. Circuit Found that Pro Se Petitioner Lacked Standing to Challenge Denial of Petition Seeking to Ease Repowering of Nuclear Plants

In an unpublished judgment, the D.C. Circuit Court of Appeals dismissed a pro se petitioner’s challenge of the Nuclear Regulatory Commission’s denial of his petition “that would permit shuttered nuclear power reactors to re-start and be returned to service, essentially ‘as they were,’ without the need for excessively costly upgrades.” The petitioner believed that “returning shuttered nuclear power reactors to service represents the most economical and cost-effective means to deal with the pressing, imminent, and existential threat of climate change, and to return our vulnerable, electrical grid to the robust status that it once had.” The D.C. Circuit concluded that the petitioner had not shown he had standing because his asserted injury based on climate change was “not a particularized injury” and because any alleged particularized injury based on possible power outages during cold weather was not actual or imminent. The D.C. Circuit also found that the petitioner did not establish the redressability prong of standing. Berka v. U.S. Nuclear Regulatory Commission, No. 21-1134 (D.C. Cir. Feb. 3, 2022)

Ninth Circuit Said Plaintiffs Could Proceed with Equal Protection and Antitrust Challenges to Utility Pricing Scheme that Disfavored Solar Energy

The Ninth Circuit Court of Appeals reversed the dismissal of federal claims challenging a power and water utility’s pricing scheme that allowed the utility to charge customers who generate electricity through their own solar energy systems up to 65% more for the utility’s electricity. Applications for solar energy systems decreased by 50–96% after adoption of the pricing scheme. Although the Ninth Circuit agreed with the district court that the plaintiffs could not proceed with their state law claims because they failed to comply with notice of claim requirements, the Ninth Circuit held that the plaintiffs’ equal protection claims were timely and that they adequately stated antitrust injury. The Ninth Circuit affirmed the district court’s rejection of defenses raised by the utility but agreed that the Local Government Antitrust Act precluded recovery of antitrust damages, but not declaratory and injunctive relief. Ellis v. Salt River Project Agricultural Improvement & Power District, Nos. 20-15301, 20-15476 (9th Cir. Jan. 31, 2022)

Federal Government Dropped Appeal of Decision Finding Failure to Consider Climate Impacts on Joshua Tree in Listing Determination

On February 1, 2022, the Ninth Circuit Court of Appeals granted Secretary of the Interior Debra Haaland and the U.S. Fish and Wildlife Service’s motion for voluntary dismissal of their appeal of a district court decision that vacated the FWS’s 2019 determination that listing the Joshua tree as threatened or endangered under the Endangered Species Act was not warranted. In September 2021, the district court found that the FWS failed to consider certain information regarding climate change’s impacts on Joshua trees. WildEarth Guardians v. Haaland, No. 21-56316 (9th Cir. Jan. 28, 2022)

Federal Court Mentioned Arguments Regarding Dams’ Climate Benefits in Denying Preliminary Injunction Motion

In an Endangered Species Act citizen suit alleging that the operations of four hydroelectric dams on Maine’s Kennebec River interfere with the migration of, and resulted in the unlawful “taking” of, Atlantic salmon, the federal district court for the District of Maine denied a motion for a preliminary injunction. Biological opinions and incidental take statements authorizing the incidental take of Atlantic salmon expired at the end of December 2019, and the court said the defendants were “actively seeking to renew” the authority. The court found that although the plaintiffs were likely to succeed on the merits of their claim, the plaintiffs did not show that the specific injunctive relief they sought would prevent harm that was likely and otherwise irreparable. Regarding the balance of the equities and the public interest, the court again cited the plaintiffs’ failure to establish that a preliminary injunction would prevent irreparable harm. The court also noted that in the defendants’ balance of the equities and public interest arguments, they had contended that the carbon-free electricity produced by the dams “helps to fight climate change and thus benefits fish in the Kennebec River.” The court found that these arguments “suffer from a dearth of evidence,” including because they did not show that the dams’ climate benefits were substantial. Atlantic Salmon Federation v. Merimil LP, No. 1:21-cv-00257 (D. Me. Feb. 24, 2022)

Federal Magistrate Judge Said Analysis of Montana Coal Mine Expansion’s Greenhouse Gas Emissions Was Arbitrary

A magistrate judge in the federal district court for the District of Montana recommended that the court rule that the environmental impact statement (EIS) for expansion of a surface coal mine in Montana failed to take a hard look at greenhouse gas emissions (or at cumulative impacts to surface water or the effects of water withdrawals from the Yellowstone River by a nearby power plant that uses coal from the mine). Regarding greenhouse gas emissions, the magistrate judge found that because the Office of Surface Mining Reclamation and Enforcement (OSM) elected to quantify the proposed expansion’s economic benefits, it was also required to quantify the project’s costs, including the costs of greenhouse gas emissions, or to offer a non-arbitrary explanation for the decision not to do so. The court agreed with the plaintiffs that “OSM’s analysis of greenhouse gas emissions was arbitrary and its record justifications for not using the [social cost of carbon (SCC) protocol] lack merit.” The court rejected the defendants’ argument that the variability in the SCC protocol’s calculations justified the decision not to use it; the court stated that “the fact the SCC Protocol is expressed in a range of values is not necessarily a valid reason to decline to quantify the costs of greenhouse gas emissions altogether.” The court found, moreover, that even if OSM could justify the decision not to use the SCC protocol, the EIS failed to demonstrate why the agency could not present “a balanced quantitative analysis of the economic costs of greenhouse gas emissions.” Montana Environmental Information Center v. Haaland, No. 1:19-cv-00130 (D. Mont. Feb. 11, 2022)

Arizona Federal Court Denied Preliminary Injunction in NEPA Challenge to Immigration Policies

The federal district court for the District of Arizona denied the State of Arizona’s motion for a preliminary injunction in the State’s lawsuit asserting that the federal government failed to consider the environmental impacts—including increased greenhouse gas emissions—of a collection of immigration policies that allegedly would cause the population of the U.S. and Arizona to increase. The court found that a 2021 Ninth Circuit decision foreclosed Arizona’s challenge under the National Environmental Policy Act (NEPA) to “an amalgamation of individual programs and policies.” The court also found that the same Ninth Circuit decision undermined Arizona’s challenge to the cessation of border wall construction because it cast doubt on “the so-called ‘enticement theory’ of environmental harm on which the State largely relies to establish causation.” The court also concluded it was unnecessary to consider a challenge to rescission of the Migrant Protection Protocols (which provided that individuals remain in Mexico during their immigration proceedings) because the Fifth Circuit already had upheld a permanent injunction requiring the overturning of the rescission. Arizona v. Mayorkas, No. 2:21-cv-00617 (D. Ariz. Feb. 7, 2022)

Rejecting Public Trust Claim, Hawai‘i Supreme Court Upheld Solar Plant Power Purchase Agreement

The Hawai‘i Supreme Court affirmed the Public Utilities Commission’s (PUC’s) approval of a power purchase agreement (PPA) for a utility to purchase renewable energy from a solar-plus-battery plant. The court rejected a community group’s contention that the PUC failed to fulfill its public trust duties as well as an argument regarding anticompetitive practices. Regarding the PUC’s public trust obligations, the court concluded that the statutes governing the PUC’s review of PPAs reflected the “core public trust principles” so that “when there is no reasonable threat to a trust resource, satisfying those statutory provisions fulfills the PUC’s obligations as trustee.” These governing statutes required the PUC to weigh the need to mitigate risks—including greenhouse gas emissions—from fossil fuel-based energy as well as other “technical, economic, environmental, and cultural” factors. The court found that because the record lacked a reasonable threat to a trust resource, the PUC’s weighing of these factors satisfied its trustee obligations without the need for specific findings about each affected public trust resource. In a footnote, the court noted that the governing statutory provisions also intersected with the Hawai‘i Constitution’s right to “a clean and healthful environment,” the parameters of which are defined by laws relating to environmental quality, including the PUC governing statute. The court stated that the right to a clean and healthful environment as defined by the PUC statute “subsumes a right to a life-sustaining climate system.” A dissenting justice would have found that the community group raised a reasonable allegation of harm to public trust resources. In re Maui Electric Co., No. SCOT-21-0000041 (Haw. Mar. 2, 2022)

Hawai‘i Supreme Court Mentioned Wind Farm’s Climate Benefits in Rejecting Endangered Species Law Challenge

The Hawai‘i Supreme Court upheld the Board of Land and Natural Resources’ approval of a habitat conservation plan for an eight-turbine wind power plant. The court rejected claims that the plan did not comply with Hawai‘i’s endangered species law as well as claims of procedural irregularities. The endangered species law challenge concerned the wind farm’s potential impact on ōpe‘ape‘a, the Hawaiian hoary bat. The court found, among other things, that substantial evidence supported the Board’s conclusion that the plan would increase the likelihood that the bat would survive and recover. The court cited data in the record indicating that the plan’s forest restoration provisions would increase survival and recovery, as well as the Board’s finding that the wind farm would eliminate one million tons of carbon dioxide emissions over 20 year, which was “one small step to reducing” global warming’s harms on the bat, even if the wind farm would not completely prevent the harms. Keep the North Shore Country v. Board of Land & Natural Resources, No. SCAP-19-0000449 (Haw. Feb. 22, 2022)

Texas Supreme Court Denied Exxon’s Request to Review Finding of No Personal Jurisdiction Over California Municipal Plaintiffs in Climate Cases

The Texas Supreme Court denied Exxon Mobil Corporation’s petition for review of an intermediate appellate court’s decision that held that Texas courts did not have personal jurisdiction over California municipalities and municipal officials and an attorney who originally represented San Francisco and Oakland in their climate lawsuits against fossil fuel companies. Exxon sought pre-suit discovery against these parties to determine whether the lawsuits were brought “to suppress the Texas energy sector’s Texas-based speech and associational activities regarding climate change and to gain access to documents that Exxon keeps in Texas.” The lower appellate court found that the parties lacked the requisite minimum contacts with Texas to be subject to personal jurisdiction. Exxon Mobil Corp. v. City of San Francisco, No. 20-0558 (Tex. Feb. 18, 2022)

California Appellate Court Issued Mixed Ruling on Climate-Related Issues in CEQA Case About Rezoning Near Lake Tahoe and Truckee

The California Court of Appeal found that certain aspects of Placer County’s environmental review of a land use specific plan and rezoning to allow residential and commercial development and preserve forest land near Truckee and Lake Tahoe did not comply with the California Environmental Quality Act (CEQA) but upheld other aspects of the CEQA review. The climate change-related aspects of the CEQA review at issue in the case included a greenhouse gas emission measure, cumulative impacts on forest resources, and the project’s energy impacts. The appellate court found that the mitigation measure—which required imposition of mitigation if  a future application for subdivision approval would not meet then-existent, formally adopted emission targets—was invalid because it was conditioned on the existence of targets that did not yet exist. The court also found that the environmental impact report (EIR) should have addressed whether renewable energy features could be incorporated as part of its consideration of the project’s impact on energy resources. But the court rejected a contention that recirculation of the final EIR was required because it adopted a new threshold of significance for greenhouse gas emissions, revealing “fare more severe climate impacts” than the draft EIR. The court also rejected a claim that the analysis of cumulative impacts on forest resources had to include the effect of tree loss due to climate change. After noting that climate change was “fundamentally different” from other types of cumulative impacts and that CEQA did not “lend itself well” to evaluating impacts “caused by something other than a physical project,” the court said the EIR had properly addressed the project’s contribution to climate change’s impacts on forest resources by quantifying and analyzing the project’s construction and operational greenhouse gas emissions. League to Save Lake Tahoe Mountain Area Preservation Foundation v. County of Placer, Nos. C087102 & C087117 (Cal. Ct. App. Feb. 14, 2022)

California Appellate Court Upheld City of Chico Determination that New Development Was Consistent with General Plan

The California Court of Appeal found that the City of Chico did not abuse its discretion in its determination that a mixed-use project on 313 acres was consistent with the City’s 2030 General Plan. The court was not persuaded by the argument that the project’s “significant and unavoidable” greenhouse gas emissions constituted substantial evidence that the project was inconsistent with the General Plan’s requirements for a “compact urban form.” Northern California Environmental Defense Center v. City of Chico, No. C092612 (Cal. Ct. App. Feb. 4, 2022)

New York State Court Rejected Challenge to Easement for Offshore Wind Transmission Cable

A New York Supreme Court dismissed a challenge to an easement granted by the Town of East Hampton Town Board for the landing site of a transmission cable from a proposed offshore wind facility. The petitioners argued that the Town Board acted arbitrarily and capriciously by granting the easement prior to Public Service Commission (PSC) approval of the Certificate of Environmental Compatibility and Public Need under Article VII of the Public Service Law in order to “do something” about climate change. The court concluded that granting the easement did not constitute site preparation activity that could only be undertaken after the PSC approved the certificate. The court also rejected the claim that the Town Board was required to comply with New York’s State Environmental Quality Review Act (SEQRA) before granting the easement. The court concluded that SEQRA did not apply to the project because the project was subject to environmental review pursuant to the Article VII process. In addition, the court found that the petitioners failed to state a claim under New York’s General Municipal Law § 51 for fraudulent or illegal use of public property. Citizens for the Preservation of Wainscott, Inc. v. Town Board of East Hampton, No. 601847/2021 (N.Y. Sup. Ct. Feb. 24, 2022)

Massachusetts Court Rejected Sea Level Rise Claim in Challenge to Bridge Reconstruction

A Massachusetts Superior Court upheld the Massachusetts Department of Environmental Protection’s decision approving, pursuant to the Massachusetts Wetlands Protection Act, the proposed reconstruction of a bridge between Moon Island in Quincy Bay and Long Island in Boston. The court rejected an argument that MassDEP’s failure to consider the impact of sea level rise on the project was legal error. The court said there was no error in the conclusion that the sea level rise claim was not based on “an enforceable legal foundation” and therefore did not state a claim upon which relief could be granted. The court stated that the plaintiffs “conceded at oral argument that existing Wetlands Regulations are not consistent with purported upcoming changes to the Act or the Regulations concerning sea level rise and that MassDEP does not enforce the City of Boston’s Climate Consensus Project.” City of Quincy v. Massachusetts Department of Environmental Protection, No. 2184CV00991 (Mass. Super. Ct. Dec. 30, 2021)

NEW CASES, MOTIONS, AND OTHER FILINGS

Eighth Circuit to Hear Oral Argument in Appeal of Remand Order in Minnesota’s Climate Case

Oral argument was set for March 15, 2022 in fossil fuel industry defendants’ Eighth Circuit appeal of the remand order in Minnesota’s climate case. The case will be heard before Judges L. Steven Grasz, David R. Stras, and Jonathan A. Kobes. The argument begins at 9 AM. Minnesota v. American Petroleum Institute, No. 21-1752 (8th Cir.)

Challenges Filed to EPA’s Greenhouse Gas Standards for Light-Duty Vehicles

Seven petitions for review were filed in the D.C. Circuit Court of Appeals challenging EPA’s December 2021 promulgation of “Revised 2023 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions Standards.” The petitions were filed by:

• Fifteen states, led by Texas (No. 22-1031)
• Competitive Enterprise Institute, Domestic Energy Producers Alliance, and four individuals. Their petition asserted that EPA lacked the authority to “establish stringent fleet-wide automobile emission standards with credit trading and enhanced credits for electric vehicles.” (No. 22-1032)
• Trade associations for soybean farmers, their supporters, and members of soybean industries, along with Diamond Alternative Energy, LLC, a subsidiary of Valero Energy Corporation. These petitioners contended that “the final rule exceeds EPA’s authority by favoring one technology, electric vehicles, over others, including the comparably-clean renewable fuels produced by Petitioners. Through the final rule, EPA seeks to unilaterally alter the transportation mix in the United States, without Congressional authorization and without adequately considering the vast greenhouse gas reduction benefits provided by renewable fuels.” (No. 22-1033)
• American Fuel & Petrochemical Manufacturers (No. 22-1034)
• Arizona (No. 22-1035)
• Petitioners representing the ethanol industry. Their petition asserted that the final rule “exceeds EPA’s authority, implicating serious separation of powers concerns by purporting to arrogate to EPA the authority to effectively mandate the production and sale of electric cars rather than cars powered by internal combustion engines,” and that the final rule conflicts with the Renewable Fuel Standard. (No. 22-1036)
• Energy Marketers of America, a federation of 47 state and regional trade associations representing energy marketers throughout the United States (No. 22-1038)

On March 2, 2022, Conservation Law Foundation, Environmental Defense Fund, Environmental Law & Policy Center, Natural Resources Defense Council, Public Citizen, Sierra Club, and Union of Concerned Scientists moved to intervene in support of EPA. Texas v. EPA, No. 22-1031 (D.C. Cir., filed Feb. 28, 2022)

Challenges Filed to New Rail Line to Carry Oil Produced in Uinta Basin

Eagle County, Colorado and a group of five environmental groups filed petitions in the D.C. Circuit Court of Appeals for review of a Surface Transportation Board decision approving construction and operation of an 85-mile rail line in Utah. The proponents of the rail line contended that it would be a viable alternative to trucking. The line would carry oil produced in the Uinta Basin, as well as other goods produced or consumed in the Uinta Basin. The environmental groups also challenged the biological opinion issued by the U.S. Fish and Wildlife Service in connection with the approval of the rail line. Eagle County’s petition asserted that the STB’s decision “was issued without observance of procedures required by law, is arbitrary and capricious, constitutes an abuse of discretion, exceeds the STB’s statutory authority,” and was in violation of the Interstate Commerce Commission Termination Act, NEPA, the Administrative Procedure Act, and other federal laws. Eagle County v. Surface Transportation Board, No. 22-1019 (D.C. Cir., filed Feb. 10, 2022)

Youth Plaintiffs Filed Case Alleging Virginia’s Fossil Fuel Permitting Violated Public Trust and Substantive Due Process Rights

Youth plaintiffs filed a lawsuit in Virginia state court against the Commonwealth of Virginia and state agencies and officials alleging that the defendants’ permitting of fossil fuel infrastructure caused and contributed to the climate crisis and caused injuries to the plaintiffs. The plaintiffs asserted that the Virginia Gas and Oil Act’s directive requiring that the Virginia Department of Energy maximize exploration, development, production, recovery, and utilization of Virginia’s fossil fuel resources substantially impaired the plaintiffs’ constitutional and common law jus publicum (i.e., public trust doctrine) rights and violated their substantive due process rights under the Virginia constitution. The complaint also asserted that the defendants’ “historic and ongoing policy and practice of exercising their statutory discretion in such a manner as to favor the permitting of fossil fuel infrastructure projects” substantially impaired the plaintiffs’ jus publicum rights and violated their substantive due process rights. The plaintiffs sought a declaratory judgment, as well as in injunctive relief, “[i]f necessary and proper.” They contended that a declaratory judgment would have “immediate practical consequences” and “provide meaningful redress” because the defendants would “abide by any declaratory judgment order and bring their policy and practice of approving permits for fossil fuel infrastructure into constitutional compliance.” Layla H. v. Commonwealth, No. __ (Va. Cir. Ct., filed Feb. 9, 2022)

Endangered Species Act Suit Challenged Federal Inaction on Washington Aquatic Cyanide Standards

Center for Biological Diversity filed a lawsuit against EPA and other federal agencies and officials alleging that they failed to ensure that EPA approval of Washington State’s limits on aquatic cyanide would not jeopardize the survival and recovery of endangered and threatened species or adversely modify essential critical habitat. The complaint’s allegations included that recent studies provided new information about the harmful effects of aquatic cyanide, “including as a result of the impact of climate change on the temperature and acidity of bodies of water, indicating that the previously approved criteria may have a more harmful impact as climate change accelerates the alteration of bodies of water across Washington.” Center for Biological Diversity v. EPA, No. 1:22-cv-00486 (D.D.C., filed Feb. 24, 2022)

Federal Defendants Sought Voluntary Remand to Reconsider Mining Access Road Approvals

Federal defendants requested voluntary remand without vacatur in two cases challenging authorization of a 211-mile mining access road in Alaska. The defendants said “[a]dditional scrutiny” in the course of defending the merits of the case “has illuminated legal flaws that Defendants intend to reconsider through a further administrative process,” in particular consider of impacts to subsistence uses under the Alaska National Interest Lands Conservation Act and the National Historic Preservation Act. The defendants also plan to supplement the NEPA analysis. Alatna Village Council v. Heinlein, No. 3:20-cv-00253 (D. Alaska Feb. 22, 2022); Northern Alaska Environmental Center v. Haaland, No. 20-cv-00187 (D. Alaska Feb. 22, 2022)

Louisiana and American Petroleum Institute Appealed Vacatur of Gulf of Mexico Lease Sale

Both Louisiana and American Petroleum Institute filed notices of appeal after the federal district court for the District of Columbia vacated a lease sale for oil and gas production and development in the Gulf of Mexico based on the court’s finding that the NEPA analysis of greenhouse gas emissions was arbitrary and capricious. On March 8, the D.C. Circuit denied API’s emergency motion to expedite the appeal because all parties agreed that the U.S. Department of the Interior could still award leases pursuant to the lease sale if the D.C. Circuit reversed the district court’s vacatur of the lease sale. The court also referred to the merits panel a motion to dismiss the appeal for lack of jurisdiction by Friends of the Earth and the other appellees. Friends of the Earth v. Haaland, No. 1:21-cv-02317 (D.D.C.)

Conservation Group Sought to Block Timber Sales in National Forest Based on Alleged Failure to Consider Climate Impacts

A conservation group filed a lawsuit in the federal district court for the District of Montana alleging that the U.S. Forest Service violated NEPA by failing to take a hard look at the impacts of logging when combined with climate change in the revised Custer Gallatin National Forest Plan. The complaint alleged that the Forest Service previously determined that revisions to the plan were necessary to address climate change impacts but that the agency failed to disclose and analyze information from a 2017 article in the Proceedings of the National Academy of Sciences that found that forest thinning combined with warming could result in conversion of forested areas to nonforest when it concluded that forests affected by old growth timber sales would remain forests. The plaintiff asked the court to vacate and enjoin the old growth timber sales and partially vacate the forest plan and associated NEPA analysis. Cottonwood Environmental Law Center v. Erickson, No. 2:22-cv-00005 (D. Mont., filed Feb. 4, 2022)

Lawsuit Sought to Compel Revision of Critical Habitat for Florida Manatees

Three conservation groups filed a lawsuit asking the federal district court for the District of Columbia to order the U.S. Fish and Wildlife Service to propose a rule to revise the Florida manatee’s critical habitat. The plaintiffs claimed that the FWS’s ongoing failure to respond to their 2008 petition requesting revision of critical habitat (to respond to changes in the meaning of critical habitat over the previous three decades) constituted action unlawfully withheld or unreasonably delayed in violation of the Administrative Procedure Act and that a 2010 finding that revision of critical habitat was warranted but precluded violated the Endangered Species Act. The plaintiffs alleged that Florida manatees and their habitat continued to face “dire and imminent threats, including the loss of warm-water refuges and poor water quality that causes persistent harmful algal blooms and a profound loss of seagrass, a crucial food source, leading to mass starvation.” The plaintiffs alleged these threats were compounded by boat strikes and climate disruption. The complaint’s allegations also included that climate change is expected to cause an increase in the number and severity of cold-water events that that lead to death for manatees. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 1:22-cv-00246 (D.D.C., filed Feb. 1, 2022)

Rhode Island Attorney General Challenged Sale of Utility

The Rhode Island Attorney General filed a lawsuit in Rhode Island Superior Court seeking to block the Rhode Island Division of Public Utilities and Carriers’ approval of the sale of the Narragansett Electric Company—which provides electric and natural gas service to approximately 780,000 customers in Rhode Island—from National Grid USA to PPL Corporation and PPL Rhode Island Holdings, LLC (together, PPL). The Attorney General’s allegations included that the companies failed to provide evidence that PPL was “capable of and committed to helping Rhode Island meet its required greenhouse gas emission reductions under the Act on Climate or provide any specifics as to how it may accomplish such actions.” The Attorney General also filed an emergency motion to stay the approval during the pendency of the appeal. Neronha v. Rhode Island Division of Public Utilities & Carriers, No. PC-2022-01095 (R.I. Super. Ct., filed Feb. 24, 2022)

Montana Youth Plaintiffs’ Constitutional Climate Case Set to Go to Trial in February 2023

It was reported in February 2022 that a trial date of February 6, 2023 has been set in the Montana state court lawsuit brought by youth plaintiffs seeking a declaration of their right under the Montana constitution to a stable climate system. In August 2021, the Montana District Court denied the defendants’ motion to dismiss the plaintiffs’ claims for declaratory relief. Held v. Montana, No. CDV-2020-307 (Mont. Dist. Ct.)

Groups Challenged New Jersey Department of Environmental Protection’s Denial of Climate Change Rulemaking Petition

In January 2022, EmpowerNJ and other groups filed an appeal in the New Jersey Appellate Division challenging the denial of their rulemaking petition requesting that the New Jersey Department of Environmental Protection (NJDEP) adopt rules setting a 2030 greenhouse gas emissions reduction target 50% below 2005 levels, implementing the means necessary to achieve the reductions, and imposing restrictions for new fossil fuel projects. NJDEP denied the petition in December 2021, citing the need for “a comprehensive and coordinated approach” to address greenhouse gas emissions reduction goals. NJDEP said “no single State agency or any one regulatory reform or set of regulatory reforms … can bring about the structural, economic, and societal changes necessary to reduce the worsening effects of climate change.” EmpowerNJ v. Department of Environmental Protection, No. A-001461-21 (N.J. App. Div. Jan. 19, 2022)

HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART

FEATURED CASES

Court Halted Seismic Survey on the Coast of South Africa

On November 29, 2021, four environmental and human rights organizations filed an application in the High Court of South Africa against respondents Minister of Mineral Resources and Energy, Minister of Environment, Forestry and Fisheries, Shell, and Impact Africa. The application sought an interdict prohibiting the respondents from proceeding with the seismic survey off the eastern coast of South Africa from 2021-2022. On December 17, 2021, the South African High Court held a hearing on the case. The Court delivered the judgement on December 28, 2021. The Court ruled that the exploration right which was awarded without regard to the applicants’ right to meaningful consultation constitutes a prima facie violation of their right which deserves to be protected by way of an interim interdict. The Court agreed that there is reasonable apprehension of irreparable harm and imminent harm of the right as the seismic survey will promote extraction of fossil fuels and adversely impact climate change, the applicant communities’ cultural practices, ocean conservation, and the spiritual and sustainable use of ocean for healing and fishing purposes. It acknowledged the concern of the communities that seismic survey will lead to exploration without climate impact assessment, a development that is inconsistent with South Africa’s agreement at the 2021 COP26 to move away from hydrocarbon-based energy towards climate friendly renewables. While finding the balance of convenience to be in favor of the applicants, the Court reasoned that the financial loss that respondents, especially Shell and Impact Africa, are likely to suffer cannot compare with the adverse effects of infringement of the constitutional rights of the communities. Finally, the Court reasoned that the procedure contemplated under section 47 of the Mineral and Petroleum Resources Development Act and argued by the respondents as a remedy is unacceptable in that it is a time-consuming procedure. If followed, it would allow the continuous threat of infringement of the applicants’ rights. A hearing on the main application is scheduled for May 2022. Shell and Impact Africa appealed the judgment of the High Court. On February 17, 2022, the judge dismissed the application. Sustaining the Wild Coast NPC and Others v. Minister of Mineral Resources and Energy and Others (South Africa, High Court)

Injunction Granted and Then Reversed on Argentinian Offshore Exploration Cases

In January 2022, three separate climate claims were brought against the Ministry of Environment and Sustainable Development of Argentina for its approval of offshore fossil fuel exploration and extraction activities in the Argentinian Sea. Shortly after, the claims were combined. On February 11, 2022, the Federal Court of Mar del Plata ordered a halt to the fossil fuel exploration activities. The court did not rely on climate grounds. Instead, the judge noted failures on procedural rights (participation and information), lack of strategic environmental assessment, and possible risk to marine biodiversity. The precautionary principle played a key role in the decision. On February 15, 2022, the government filed an appeal to the injunction order. In its appeal, the government also asks for the removal of the judge from the case. On February 18, 2022, a different judge (Federal Court of Mar del Plata N.4) allowed the appeal to proceed with suspensive effect. That means that the exploration activity can go ahead until the Federal Court of Appeal revises the injunction order. Organización de Ambientalistas Organizados v. Ministry of Environment and Sustainable Development; Greenpeace Argentina et al., v. Argentina et al.; Guillermo Tristan Montenegro v. Ministry of Environment and Sustainable Development (Argentina, Federal Court of Mar del Plata No. 2)

DECISIONS AND SETTLEMENTS 

German Subnational Climate Claims Dismissed by the Federal Constitutional Court

In 2021, several claims were brought against German states for the inadequacy of an adopted climate law or the lack of a climate law. The cases are part of a series of 11 separate constitutional complaints supported by environmental organization Deutsche Umwelthilfe against 10 federal states, following the Constitutional Court’s Neubauer v. Germany decision in 2021. On January 18, 2022, the First Senate of the Federal Constitutional Court did not admit the 11 complaints for adjudication, on the basis of a lack of adequate prospects. Widely in alignment with its decision in Neubauer, the Court acknowledged that greenhouse gas reduction burdens cannot be unilaterally offloaded onto the future. However, in the cases at hand, complainants’ fundamental rights were not violated preemptively, because the state legislatures are not subject to a CO2 emissions budget, which, according to the Court in Neubauer, is a prerequisite for such an effect. Rather, it is the federal German legislature that is bound by the CO2 budget, but has a prerogative with respect to its implementation. As regards the federal states, the Court clarified that they too are responsible for climate protection, in particular by virtue of Article 20a of the Basic Law. Marlene Lemme, et al. v. State of Bayern (constitutional claim); Emma Johanna Kiehm, et al. v. State of Brandenburg; Luca Salis, et al. v. State of Sachsen-Anhalt; Tristan Runge, et al. v. State of Saxony; Leonie Frank, et. al v. State of Saarland; Otis Hoffman, et al. v. State of Mecklenburg-Vorpommern; Alena Hochstadt, et al. v. State of Hessen; Jannis Krüßmann, et al. v. Nordrhein-Westfalen (NRW) (Germany, Federal Constitutional Court)

Quebec Court of Appeals Denied Certification of Climate Class Action

In 2018, ENvironnement JEUnesse, an environmental nonprofit, applied in the Superior Court of Québec to bring a climate change-related class action against the Canadian government on behalf of Québec citizens aged 35 and under. The organization alleges that the government violated plaintiffs’ rights by setting a greenhouse gas reduction target insufficient to avoid dangerous climate change impacts and by lacking an adequate plan to reach its greenhouse gas emission target. In July 2019, the court dismissed the motion for authorization to institute a class action. ENvironnement JEUnesse appealed the decision. On December 13, 2021, the Quebec Court of Appeal dismissed the appeal on justiciability and denied the certification of the proposed climate change class action suit. The Court found that “all the alleged facts” accuse the Canadian government of a “fault of omission” resulting from its inaction in the face of global warming. Conclusions sought by the Appellants are tantamount to asking the courts to tell the legislature what to do, which is not their role. It held that deference to the legislative power is “necessary” as it is better placed to weigh the countless challenges of global warming. The Court did not weigh in on the allegation that government actions were contributing to climate change and therefore violated the rights under the Canadian Charter of Rights and Freedoms. The Court also objected to the lack of specificity of the remedy requested and agreed with the trial judge that the proposed class was arbitrary since the theory of the case on age discrimination was not acceptable. The Appellants have expressed an intention to appeal to the Supreme Court. ENvironnement JEUnesse v. Canada (Canada, Quebec Court of Appeal)

Appeal Hearing Held on UK’s Climate Case Concerning Scope 3 Emissions

The case concerns the legality of Surrey County Council’s (SCC) decision to grant planning permission for oil production at a site in Horse Hill (Surrey England) without considering the project’s scope 3 emissions. On December 21, 2020, the case was dismissed by the High Court. Permission to appeal was subsequently granted. The appeal hearing took place on November 16-17, 2021. The Appellant (Ms. Finch) argued that the scope 3 emissions were “likely significant effects of the development” which should have been taken into account as part of the environmental impact assessment (EIA). In addition, the Appellant argued that the reasons given by SCC for not requiring that assessment were inadequate (and so unlawful), because it had not evidenced what separate pollution control regimes existed, and how they would operate, to regulate those downstream emissions and absolve it of the requirement to take them into account. In its intervention, Friends of the Earth referred to case law from other jurisdictions in which EIA does include the assessment of scope 3 emissions in the context of fossil fuel projects. The appeal was defended by SCC, the Developer and the SoS. R (Finch on behalf of the Weald Action Group & Others) v. Surrey County Council (& Others) (UK, Court of Appeal)

European Court of Justice Ruled that Local Governments Do Not Violate the EU Framework for Testing Real Driving Emissions When Adopting Low-Emission Car Zones

On January 13, 2022, the European Court of Justice (ECJ) ruled on a case questioning a European Union (EU) legal framework for the approval of motor vehicles. The ECJ set aside an earlier judgement of the General Court and clarified that two conditions must be met for admissibility: (i) the contested measure must directly affect the legal situation of the applicant and (ii) it must leave no discretion to the entity entrusted with the implementation. The ECJ held that the General Court erred when it stated that the cities were prevented from exercising their powers to regulate the circulation of passenger vehicles to reduce pollution and, as such, also erred when it derived that the cities were directly affected, and thus directly concerned, by the contested Regulation. The ECJ also mentioned that the obligations Directive 2007/46 imposes on Member States only concern placing motor vehicles on the market and not their subsequent use. Moreover, the cities are not liable to infringe on Directive 2007/46 (read together with Commission Regulation 2016/646) solely by adopting environmental protection legislation to limit the local circulation of certain vehicles. Through its judgment, the ECJ clarified that local governments do not violate the EU framework for testing real driving emissions when they adopt low-emission zones. Federal Republic of Germany and Others v. Ville de Paris and Others (European Court of Justice)

UK Court of Appeal Reduced Sentence for Paralympic Champion’s Peaceful Climate Protest

In 2019, a group of Extinction Rebellion protesters launched a protest at London City Airport to draw attention to the contribution of air travel to climate change. The group included James Hugh Brown, a former Paralympic champion, who glued himself to the top of a commercial passenger aircraft and was convicted by the Crown Court for public nuisance and imprisoned for 12 months. He appealed the conviction and sentence. On January 14, 2022, the Court of Appeal gave judgment, dismissing the appeal against conviction but allowing the appeal against sentence and substituting a four-month term of imprisonment. Mr. Brown argued that failure to stay prosecution for the common law offense of public nuisance amounted to a breach of his human rights. Rejecting these arguments, the Court held that the concept of abuse of process in a criminal case is the creature of domestic law and does not turn on any issue under the European Convention on Human Rights or the Human Rights Act 1998. Mr. Brown further argued the 12 months imprisonment was too long given the offense was committed in the course of protest. Instead, only a fine should have been imposed. The Court agreed with the court below that Mr. Brown’s offending passed the custody threshold. However, taking account of his conduct (including that this was a peaceful protest), his previous convictions, and his disability, it held the 12-month sentence was manifestly excessive, and substituted a four-month sentence. R. v Brown (Extinction Rebellion protest, London City Airport) (UK, Appellate Court (Criminal Division))

NEW CASES, MOTIONS, AND OTHER FILINGS

New Case in the UK Challenged the Country’s Net Zero Commitments

On October 19, 2021, the Secretary of State for Business Energy and Industrial Strategy (Kwasi Kwarteng; the “SoS”) adopted the Net Zero Strategy (NZS) and the Heat and Buildings Strategy (HBS). The NZS is the Government’s economy-wide decarbonization strategy, and the HBS is the specific strategy for decarbonizing heating and homes. On January 12, 2022, Friends of the Earth England Wales and Northern Ireland (FoE) filed a claim for judicial review against the SoS, in relation to the NZS and the HBS. FoE argues that both strategies were unlawfully adopted. In relation to the NZS, FoE argues that the SoS breached sections 13 and 14 of the Climate Change Act 2008 (CCA). The CCA was the first piece of legislation anywhere in the world to set domestically enforceable carbon reduction targets. Sections 13 and 14 of the CCA require the SoS to produce policies which will enable upcoming carbon budgets set under the CCA to be met. FoE submits that the SoS has not complied with these duties, because whilst the NZS contains targets for carbon emissions reduction, it does not quantify what impact its policies will have in reducing emissions, or the timescales for the reductions to happen. FoE also argues that the SoS breached section 149 of the Equality Act 2010, the public sector equality duty. This is because the SoS has not assessed what impact the strategy will have on people with protected characteristics, such as disabled people, people of color, and older people. The court’s decision on permission for the case to proceed is awaited. The environmental legal charity ClientEarth and the NGO the Good Law Project filed separate judicial review challenges to the NZS in the week commencing January 17, 2022, also in relation to the CCA. R (oao Friends of the Earth) v Secretary of State for Business Energy and Industrial Strategy (UK, High Court of Justice)

New Zealand Students Challenged New Permits for Onshore Oil and Gas Exploration

On November 9, 2021, a group of law students sued the New Zealand Minister for Energy and Resources, challenging the Minister’s June 2021 decision to grant permits for onshore oil and gas exploration. The students seek judicial review of the permitting decision. The students claim the Minister’s June 2021 decision to issue exploration permits in the Taranaki area is inconsistent with the government’s legal obligations under the country’s Zero Carbon Act and the Paris Agreement and that she failed to consider key facts such as the Intergovernmental Panel on Climate Change’s recent warnings about climate change’s severity. In 2018, the government banned new offshore exploration for oil and gas reserves, and in 2020 it declared New Zealand was facing a climate emergency. However, it has allowed energy companies to continue to apply for permits for onshore oil and gas exploration. Students for Climate Solutions v Minister of Energy and Resources (New Zealand, High Court of New Zealand)

New Italian Case Questioned Livestock Farming before the OECD

On December 6, 2021, the “Rete Legalità per il Clima” (Legality for Climate Network)—a network of Italian lawyers and researchers committed to enforcing climate justice against public institutions and private companies—submitted to the National Contact Point of the OECD (Organization for Economic Cooperation and Development) an action addressed at multinational companies operating in the field of intensive livestock farming in Italy. The action aims to initiate a procedure before the National Contact Point directed mainly at verifying and challenging the compatibility with the climate emergency of the practice of intensive livestock farming, which generates large quantities of various greenhouse gases, starting with methane. Rete Legalità per il Clima (Legality for Climate Network) v. Intense livestock farming multinational companies operating in Italy (Italy, OECD Contact Point)

New Italian Case Before the OECD Against Energy Company ENI

On February 14, 2022, a group of Italian NGOs and environmental movements submitted a climate-related complaint to the National Contact Point of the OECD alleging the inadequacy of the business plan pursued by the oil company ENI. Specifically, the complaint highlights that ENI has committed to net zero emissions by 2050, but its actions run contrary to this goal. For example, ENI plans to increase its oil production by 4% each year until at least 2024, and is proposing to rely on large amounts of negative emissions technology (7 million tonnes of CO2 stocked each year by 2030). The complaint alleges that ENI has not complied with the OECD Guidelines for Multinational Enterprises due to: (i) the fact that the company’s strategic plan does not foresee a sufficient cut in GHG emissions in the coming years; (ii) the lack of a climate impact assessment of the company’s activities; (iii) the absence of transparent and adequate information; and (iv) the failure to develop a plan for risk prevention and mitigation. As the National Contact Point is a non-judicial grievance mechanism, the applicants have requested mediation with ENI. The complaint follows a notice to desist sent to the company by the Legality for Climate Network on July 26, 2021. Rete Legalità per il Clima (Legality for Climate Network) and others v. ENI (Italy, OECD Contact Point)

European Court of Human Rights Communicated Nordic Climate Case to the State

In December 2020, Greenpeace Nordic and Young Friends of the Earth (Nature and Youth) and six individuals filed an application before the European Court of Human Rights against the Norwegian government. On December 16, 2021, the Court characterized the case as a potential “impact case” and communicated it to the Norwegian State. On January 10, 2022, the Court published a list of questions to the parties and has given the Norwegian Government until April 13, 2022, to respond to the allegations of the environmental groups that new oil and gas drilling in the Arctic breaches fundamental freedoms. Greenpeace Nordic Ass’n v. Ministry of Petroleum and Energy (ECtHR)