March 2023 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@example.com.
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #168:
Tenth Circuit Ruled that BLM Failed to Take a Hard Look at Oil and Gas Drilling’s Impacts on Greenhouse Gas Emissions
Reversing a district court, the Tenth Circuit Court of Appeals held that the U.S. Bureau of Land Management (BLM) violated the National Environmental Policy Act by failing to take a hard look at the direct, indirect, and cumulative impacts on greenhouse gas emissions of applications for permits to drill (APDs) for oil and gas in the Mancos Shale and Gallup Sandstone formations in the San Juan Basin of New Mexico. The court also found that BLM failed to take a hard look at the cumulative impact of hazardous air pollutant emissions but concluded that BLM’s analysis of impacts on water resources and criteria air pollutants was sufficient. With respect to greenhouse gas emissions, the Tenth Circuit found that BLM unreasonably used estimates of annual emissions from construction and operation of wells to represent emissions over the estimated 20-year life span of the wells. The court also found that BLM’s analysis did not explain the agency’s conclusion that greenhouse gas emissions from the wells would have only a de minimis impact on climate change. Because a public comment had requested that BLM use a “carbon budget” method to assess the impacts of the wells’ emissions, the Tenth Circuit ruled that BLM acted arbitrarily and capriciously by neither applying that method nor explaining why it did not apply it. The Tenth Circuit concluded, however, that BLM did not act arbitrarily and capriciously when it used 100-year time horizons (rather than a 20-year horizon) to evaluate the impacts of methane emissions. The Tenth Circuit remanded to the district court to determine whether to vacate the APD approvals or grant other injunctive relief. The Tenth Circuit also enjoined approval of any additional APDs based on the deficient environmental analyses pending the district court’s determination of the appropriate remedy. Diné Citizens Against Ruining Our Environment v. Haaland, No. 21-2116 (10th Cir. Feb. 1, 2023)
DECISIONS AND SETTLEMENTS
D.C. Circuit Declined to Stay Remand Order in D.C.’s Consumer Protection Case Against Fossil Fuel Companies
On January 30, 2023, the D.C. Circuit Court of Appeals denied fossil fuel companies’ emergency motion for a stay pending appeal of a district court’s order remanding to D.C. Superior Court the District of Columbia’s lawsuit alleging that the companies violated D.C.’s consumer protection law by misleading consumers about their products’ contribution to climate change. The D.C. Circuit found that the companies had not met the “high standard” for demonstrating irreparable injury, noting that even “substantial and unrecoupable” litigation expenses would not meet that standard. The D.C. Circuit also found that the companies did not show a “likely,” as opposed to “possible,” injury from potential deprivation of their right to proceed in federal court. The D.C. Circuit set an expedited briefing schedule for the companies’ appeal of the remand order, with the opening brief due on March 1, D.C.’s brief due on March 31, and the companies’ reply brief due on April 12. On February 15, the federal district court remanded the case to D.C. Superior Court. District of Columbia v. Exxon Mobil Corp., No. 22-7163 (D.C. Cir. Jan. 30, 2023), No. 1:20-cv-01932 (D.D.C. Feb. 15, 2023)
Fourth Circuit Rejected Contention that Updated Sea-Level Rise Projections Required Supplemental EIS for Outer Banks Bridge Project
The Fourth Circuit Court of Appeals affirmed a district court’s rejection of claims that the North Carolina Department of Transportation and Federal Highway Administration violated the National Environmental Policy Act when they approved a proposed toll bridge connecting North Carolina’s mainland with the Outer Banks. The agencies published a final environmental impact statement (EIS) in 2012 and then completed a reevaluation in 2019 after funding for the bridge was pulled and then recommitted. The plaintiffs’ arguments included that the agencies should have prepared a supplemental EIS to consider new information, including 2017 sea-level rise data that the plaintiffs claimed showed that the bridge would be inundated in less than 30 years. The Fourth Circuit characterized the sea-level rise issue as a “factual dispute the resolution of which implicates substantial agency expertise.” The court found that it could not conclude that the agencies were uninformed about sea-level rise risks and that the “new sea-level data only ‘confirmed concerns that the  EIS already articulated and considered.’” The court therefore held that the agencies’ decision not to issue a supplemental EIS to consider the issue was not arbitrary or capricious. No Mid-Currituck Bridge-Concerned Citizens & Visitors Opposed to the Mid-Currituck Bridge, No. 22-1103 (4th Cir. Feb. 23, 2023)
Fifth Circuit Said Pro Se Plaintiff Lacked Standing for Challenge to U.S. Rejoining Paris Agreement
The Fifth Circuit Court of Appeals affirmed the dismissal for lack of standing of a pro se plaintiff’s challenge to the United States’ reentry into the Paris Agreement in 2021. The Fifth Circuit found that the plaintiff’s status as a federal taxpayer and an owner of mineral interests in property did not establish standing. Pruitt v. Biden, No. 22-40625 (5th Cir. Jan. 31, 2023)
D.C. Circuit Dismissed Appeal of Order Transferring Challenge of South Fork Offshore Wind Project
The D.C. Circuit Court of Appeals dismissed an appeal of an order granting defendants’ motion to transfer—to the Eastern District of New York—a case challenging the Bureau of Ocean Energy Management’s approval of the South Fork offshore wind energy project. The D.C. Circuit ruled that the order was not appealable because the plaintiff did not show that the order had the “practical effect” of denying a request for injunctive relief or that it might have a “serious, perhaps irreparable consequence” that could only be addressed by an immediate appeal. The D.C. Circuit also denied the project developer’s motion to strike addenda filed by the plaintiff and a motion by the plaintiff to remove counsel representing the project developer. Kinsella v. Bureau of Ocean Energy Management, No. 22-5316 (D.C. Cir. Feb. 23, 2023)
Citing Seriousness of NEPA Errors, Montana Federal Court Vacated Approval of Coal Mine Expansion
The federal district court for the District of Montana vacated the U.S. Office of Surface Mining Reclamation and Enforcement’s (OSMRE’s) approval of the expansion of an underground coal mine in central Montana. The district court issued its order on remand from the Ninth Circuit, which held in April 2022 that OSMRE violated the National Environmental Policy Act (NEPA) by failing to provide a “convincing statement of reasons” why the expansion’s impact on greenhouse gas emissions would be insignificant. In concluding that the federal defendants and the coal mine operator did not overcome the presumption in favor of vacatur and the equities that favor that remedy, the court first found that the NEPA violations were central to the environmental assessment and that OSMRE’s errors were therefore “sufficiently serious to warrant vacatur.” The court also stated that OSMRE’s subsequent independent decision to prepare an EIS “inherently demonstrates the seriousness of the agency’s errors.” The court then concluded that leaving the approval in place would potentially be more disruptive than vacatur. The court noted that the “disruptive consequences” of vacatur—which the coal mine operator alleged would include environmental (including increased greenhouse gas emissions), economic, and community impacts—were the product of reliance on approvals granted pursuant to invalid environmental analyses and that the “full impacts” of the expansion would not be known until the EIS was completed. 350 Montana v. Haaland, No. 9:19-cv-00012 (D. Mont. Feb. 10, 2023)
Tennessee Federal Court Rejected Challenge to TVA Long-Term Contract Provisions
The federal district court for the Western District of Tennessee rejected arguments that the Tennessee Valley Authority (TVA) failed to comply with NEPA when it incorporated certain provisions into its long-term contracts with local power companies. The provisions at issue were (1) “long-term” provisions that the plaintiffs said would enable a “never-ending contract” at odds with the maximum 20-year term authorized by the TVA Act and (2) “flexibility” provisions that would permit the local power companies to self-generate a percentage of their energy. The court found that there were two categorical exclusions that could support TVA’s decision not to conduct NEPA review of the long-term provisions. Moreover, the court found that the long-term provisions did not have a reasonably close causal relationship to the alleged environmental impacts, which included global warming. The court also was convinced by arguments that the long-term provisions did not guide planning for TVA’s generation portfolio mix and further found that TVA complied with NEPA by producing an EIS for the 2019 Integrated Resource Plan that accounted for TVA’s resource portfolio. The court also rejected the argument that TVA failed to prepare its environmental assessment regarding the flexibility provisions until after it had already contracted with the local power companies to include the provisions. The court also granted summary judgment to TVA on a claim under the TVA Act, holding that the three environmental groups that brought the suit did not have associational or organizational standing. With respect to associational standing, the court found that the groups’ members did not allege particularized, imminent environmental injuries. The court also found that the members’ alleged economic injuries—which included “paying more for dirtier energy” and diminished value of private solar power systems—did not provide a basis for standing. Protect Our Aquifer v. Tennessee Valley Authority, No. 2:20-cv-02615 (W.D. Tenn. Feb. 1, 2023)
Challenge to Louisiana Parish’s Ordinance Blocking Carbon Sequestration Project Dismissed After Parties Agreed Ordinance Could Not Be Enforced Against Plaintiff
The federal district court for the Middle District of Louisiana granted a joint motion for consent judgment in a lawsuit brought by the developer of a carbon sequestration project against the Livingston Parish Government to challenge a moratorium that blocked the project. The court previously granted a preliminary injunction and enjoined the defendants from enforcing the moratorium. The parties’ joint motion stated that the parties agreed that the law was “invalid and unenforceable” as to the developer and its affiliates, contractors, and subcontractors, and that it would not be enforced against those entities. The parties further agreed that the developer’s claims should be dismissed without prejudice. Air Products Blue Energy, LLC v. Livingston Parish Government, No. 3:22-cv-00809 (M.D. La. Feb. 14, 2023)
Colorado Federal Court Upheld Forest Plan that Provided for Increased Salvage Logging in Lynx Habitat
The federal district court for the District of Colorado denied a petition challenging the biological opinion prepared by the U.S. Fish and Wildlife Service (FWS) for revisions to the forest plan for the Rio Grande National Forest, which provides habitat for the Canada lynx. The forest plan was revised in response to a beetle epidemic that decimated the largest trees in the forest. The revised plan removed certain restrictions on logging and allowed increased salvage logging. The court found that the petitioner did not show that the FWS had incorrectly concluded that the revised forest plan was not likely to jeopardize the Canada lynx in the contiguous United States. The court concluded that the revised plan was programmatic, did not authorize specific projects, and therefore did not directly jeopardize the lynx directly. The court also found that extirpation of the lynx in the forest would not significantly affect the lynx’s status across the contiguous United States and that the petitioner did not overcome the presumption of validity that attached to the FWS’s conclusions. Specific arguments rejected by the court included the petitioner’s contention that the FWS did not reconcile “the trend toward lynx extirpation in Colorado” with allowing increased salvage logging in the lynx’s “most important” habitat in Colorado. The court cited uncertainty in projects regarding the lynx’s future, including due to “nuances and caveats based on potential impacts from beetle kill, fire, and climate change.” Although the court also cited the FWS’s statements that “continued climate warming” would reduce lynx habitat in the forest and that the FWS was not aware of management actions that could be expected to abate climate-related threats to the habitat, the court found that the petitioner did not show that the Colorado lynx population “represents a distinct or outsized risk to the distinct population segment” in the contiguous U.S. Defenders of Wildlife v. U.S. Forest Service, No. 1:21-cv-02992 (D. Colo. Jan. 27, 2023)
Arizona Federal Court Rejected Challenge to Environmental Review for Glen Canyon Dam Management Plan
The federal district court for the District of Arizona rejected arguments that the environmental review of the development and implementation of a new management plan for the Glen Canyon Dam failed to sufficiently address the impacts of climate change. First, the court was not persuaded that the federal defendants failed to take a hard look at the impacts of climate change on the Colorado River and Glen Canyon Dam. The court agreed with the federal defendants that reviewing the effects of climate change on the total amounts of water released from the dam each year was beyond the scope of the proposed action but nonetheless also found that the federal defendants had taken the requisite hard look. Second, the court found that the plaintiffs did not show that the purpose and need statement was “unduly narrow” and that the federal defendants were required to use a broader statement that incorporated climate change conditions. Third, the court found that the federal defendants’ consideration of alternatives satisfied “the rule of reason,” rejecting arguments that the seven alternatives were nearly identical and that no alternative contemplated dam operations in light of climate change. Fourth, the court upheld the defendants’ decision that it was not necessary to prepare a supplemental EIS to consider new climate change studies. The court also denied the plaintiffs’ motion to supplement the record with the Bureau of Reclamation’s October 2022 notice of intent to prepare a supplemental EIS for 2007 guidelines for operation of the Glen Canyon and Hoover Dams to address drought and low runoff conditions in the Colorado River Basin. The plaintiffs argued that the notice of intent bore on their claim that a supplemental EIS should have been prepared. The court found that no exception applied in this case to the general rule that judicial review was limited to the administrative record in existence at the time of the agency’s decision. Save the Colorado v. U.S. Department of the Interior, No. 3:19-cv-08285 (D. Ariz. Dec. 23, 2022)
California Appellate Court Upheld CEQA Review of University of California Development Plan but Said Additional Review of Student Housing Project Was Needed
The California Court of Appeal rejected challenges to the California Environmental Quality Act (CEQA) review of the University of California, Berkeley’s long range development plan but directed the Regents of University of California to consider alternative locations for a student housing project and to assess potential noise impacts from student parties in residential neighborhoods. The court rejected the argument that the alternatives considered by the Regents should have included an alternative limiting student enrollment, which the petitioner characterized as major driver of environmental impacts. The court said this argument ignored the long range development plan’s “limited purpose and scope” and found that the petitioner did not point to deficiencies in the alternatives considered, which included an alternative with strategies to reduce carbon emissions by building more housing near campus, reducing parking, and increasing remote instruction and working. Make UC a Good Neighbor v. Regents of University of California, No. A165451 (Cal. Ct. App. Feb. 24, 2023)
California Appellate Court Rejected Claims About Consideration of Mixed-Use Project’s Greenhouse Gas Emissions
The California Court of Appeal affirmed the rejection of claims challenging the City of Lynwood’s approval of a high-density, mixed use project on a vacant 3.6-acre lot. The project involved amendments to the Lynwood Transit Area Specific Plan (LTASP). The purpose of the LTASP is to “encourage revitalization of the existing uses in the planning area and to establish a land use framework that emphasizes a compact, urban form that relies less heavily on the private automobile.” The appellate court found that a supplemental environmental impact report (SEIR) contained sufficient detail about the LTASP amendments’ and project’s impacts on greenhouse gas emissions. In addition, the court rejected a condition that the SEIR failed to properly consider CEQA guidelines’ thresholds of significance for greenhouse gas emissions. The court also declined to address the appellant’s arguments that the City did not do anything to reduce greenhouse gas emissions caused by transportation and that the project therefore was inconsistent with the LTASP. The court said the appellant failed to present arguments on this point in its briefs and instead impermissibly incorporated by reference arguments made in letters. Johnson v. City of Lynwood, No. B305060 (Cal. Ct. App. Feb. 22, 2023)
California Appellate Court Voided Approval of Office Complex Project, Said Determinations on Greenhouse Gas Emissions Were Incorrect
The California Court of Appeal affirmed a trial court decision that granted a petition for writ of mandate challenging the City of Irvine’s approval of a plan to redevelop a 4.95-acre parcel in the Irvine Business Complex with an office complex. The court found that there was insufficient evidence showing that the project’s greenhouse gas emissions were within the scope of the program environmental impact report prepared for the IBC development plan in 2010. The court further found that the project’s greenhouse gas emissions had not been shown to be less than significant. The court also rejected a contention that the project was subject to an exemption from environmental review for in-fill development. The court found that no exemption applied because the project involved “unusual circumstances which may cause significant environmental effects”—namely, greenhouse gas emissions exceeding significance thresholds. IBC Business Owners for Sensible Development v. City of Irvine, No. G060850 (Cal. Ct. App. Feb. 6, 2023)
Minnesota Appellate Court Rejected Claim that Minneapolis Failed to Consider Climate Impacts of Expanding Water Maintenance Facility
The Minnesota Court of Appeals found that the City of Minneapolis’s environmental-assessment worksheet (EAW) for the proposed expansion of a water maintenance facility was complete and accurate in compliance with applicable authorities. Among the arguments rejected by the court was a contention that the EAW did not address the project’s climate change impacts. The court first stated that a 2019 nonprecedential decision did not establish a requirement that EAWs must consider greenhouse gas emissions. The court further found that in this case, Minneapolis included data on current greenhouse gas emissions and projected increases in emissions. In addition, the court noted that the City had indicated in responses to public comments that it would rely on its Climate Action Plan and the Minnesota Pollution Control Agency’s recommended green practices to mitigate the project’s climate change effects. East Phillips Neighborhood Institute, Inc. v. City of Minneapolis, No. A21-1297 (Minn. Ct. App. Feb. 6, 2023)
New York Court Ordered Preparation of Supplemental EIS for Syracuse Highway Project
A New York trial court found three “glaring omissions” in the environmental impact statement (EIS) for an interstate highway project in Syracuse. First, the court found that the New York State Department of Transportation acknowledged that its selected “community grid” alternative would increase traffic on an interstate corridor but did not adequately review impacts on that corridor. Second, the court found that tentative plans regarding stormwater management plans were not sufficient under the New York State Environmental Quality Review Act and that an analysis of the final plan was required. Third, the court found that a supplemental EIS was required to consider anticipated population growth from a recently announced “transformational” new semiconductor manufacturing facility. The court found, however, that the petitioners failed to establish deficiencies in other EIS analyses, including for greenhouse gas emissions. The court denied petitioners’ claims under New York’s Smart Growth Act and denied the claims under New York’s Green Amendment and Climate Leadership and Community Protection Act without discussion. Renew 81 for All v. New York State Department of Transportation, Index No. 007925/2022 (N.Y. Sup. Ct. Feb. 14, 2023)
Petitioners Dismissed Their Challenge to Lower Manhattan Resiliency Project After Court Denied Preliminary Injunction
Eight days after a New York court denied a request for a preliminary injunction blocking part of a resiliency project in Battery Park City in lower Manhattan, the petitioners voluntarily discontinued and dismissed their action and all claims. The court found that the petitioners did not establish a likelihood of success on the merits of their claims under the New York State Environmental Quality Review Act. The court stated that in the absence of a showing of an arbitrary and capricious process, it was required to defer to the Battery Park City Authority’s (BPCA’s) determination regarding the design standards for coastal resiliency projects intended to provide flood protection. The court also found that equities favored BPCA because a delay in the project would impose significant cost on BPCA, which had spent years on planning and design. The court further found that the petitioners would not suffer irreparable harm, noting that the project was a “public benefit project meant to protect Lower Manhattan from future storm surge and sea level rise” and that the “parties simply differ on the best way to accomplish” the goal of ensuring that a park that would be rebuilt as part of the project could be enjoyed by future generations. The court also rejected a contention that loss of trees would constitute irreparable harm, noting that there would be a net increase in trees in the project area as a result of the project. Battery Park City Neighborhood Association v. Battery Park City Authority, No. 160624/2022 (N.Y. Sup. Ct. Feb. 8, 2023)
Industrial Gas Suppliers Agreed to Civil Penalties to Resolve Alleged Failures to Submit Greenhouse Gas Reports to EPA
The U.S. Environmental Protection Agency (EPA) Environmental Appeals Board ratified consent agreements that resolved alleged violations of EPA’s mandatory greenhouse gas reporting requirements. In one enforcement action, suppliers of industrial gases agreed to pay a civil penalty of $382,473 to resolve allegations that they failed to file timely reports of industrial greenhouse gas imports. In a second action, a company agreed to pay a $247,601 civil penalty to resolve allegations that it did not submit annual reports of greenhouse gas import quantities for calendar years 2016 through 2020. In re BMP International, Inc., No. CAA-HQ-2022-8429 (EAB Feb. 17, 2023); In re Artsen Chemical America, LLC, No. CAA-HQ-2022-8428 (EAB Jan. 20, 2023)
NEW CASES, MOTIONS, AND OTHER FILINGS
Fossil Fuel Companies Filed Certiorari Petition Seeking Review of Remand Orders in Delaware and Hoboken Cases; Briefing Completed on Certiorari Petitions in Cases Brought by Rhode Island, California Local Governments, and Honolulu/Maui County
On February 27, 2023, fossil fuel companies filed a petition for writ of certiorari asking the Supreme Court to determine whether federal courts have jurisdiction over climate change cases brought by the State of Delaware and the City of Hoboken. The petition presented the question of “[w]hether a federal district court has jurisdiction under 28 U.S.C. § 1331 over nominally state-law claims seeking redress for injuries allegedly caused by the effect of transboundary greenhouse gas emissions on the global climate, on the ground that federal law necessarily and exclusively governs such claims.” The companies argued that claims related to international and interstate emissions are “inherently federal” and that the Third Circuit erred when it determined that Delaware’s and Hoboken’s state law claims could not be brought in federal court. The companies also contended that immediate review was warranted because of the cases’ economic implications for the energy sector and the global economy more broadly and because a “patchwork” of conflicting state standards risked undermining the fossil fuel companies’ “vital role in maintaining a dependable supply of oil and gas.” The companies told the Court that their petition presented the same issues as those presented in Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County, which seeks review of the Tenth Circuit’s affirmance of a remand order in cases brought by Colorado localities. The companies asked that their petition in the Delaware and Hoboken cases be held pending the disposition of Suncor, in which the Court has invited the Solicitor General to submit a brief expressing the views of the United States on the questions raised. The Solicitor General had not filed a brief as of March 1.
Briefing was completed on February 14, 2023 for fossil fuel companies’ petition for writ of certiorari seeking review of the Ninth Circuit’s affirmance of remand orders in cases brought by the County of San Mateo and other California local governments. Briefing was completed for the petitions for writ of certiorari in Rhode Island’s case and in the City and County of Honolulu’s and Maui County’s cases on February 22. The County of San Mateo case originally was distributed for the justices’ conference on March 3 but was rescheduled on February 27; a new date was not noted on the docket. The Rhode Island case originally was distributed for the justices’ conference on March 17, but it also was rescheduled on February 27. The Honolulu/Maui petition was distributed for the justices’ March 17 conference and had not been rescheduled as of March 1. A fully briefed certiorari petition also was still pending in Baltimore’s case. BP America Inc. v. Delaware, No. 22-821 (U.S.); Chevron Corp. v. County of San Mateo, No. 22-495 (U.S.); Shell Oil Products Co. v. Rhode Island, No. 22-524 (U.S.); Sunoco LP v. City & County of Honolulu, No. 22-523 (U.S.); Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County, No. 21-1550 (U.S.)
Four States Challenged SEC Proxy Vote Rule for Investment Managers
Texas, Louisiana, Utah, and West Virginia filed a petition for review in the Fifth Circuit Court of Appeals challenging the Securities and Exchange Commission’s final rule on proxy vote reporting requirements for registered management investment companies. In a press release regarding the petition for review, the Texas Attorney General said the new rule amended the form for reporting details of proxy votes “by expanding the number of voting categories that address left-wing priorities.” The Attorney General characterized the “real reason behind the new rule” as to “force … companies to either increase the number of votes taken that would further the radical political agenda of the Biden Administration or face enhanced public scrutiny.” The Attorney General also said the new rule would “pressure … funds to potentially violate their fiduciary duties by taking actions that may not be in the best financial interests of their investors.” Texas v. Securities & Exchange Commission, No. 23-60079 (5th Cir., filed Feb. 22, 2023)
Lawsuit Challenged ERISA Rule on Fiduciaries’ Consideration of ESG Factors
Two individual participants in retirement benefit plans subject to the Employment Retirement Income Security Act of 1974 (ERISA) filed a lawsuit in the federal district court for the Eastern District of Wisconsin challenging the U.S. Department of Labor’s final rule on “Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights.” The complaint alleged that the rule “both permits and encourages plan administrators to consider environmental, social, and governance [(ESG)]… factors when making investments on behalf of plan beneficiaries.” The plaintiffs asserted that the rule violated ERISA and exceeded the Secretary of Labor’s statutory authority. Their allegations included that the rule was “unsupported by substantial evidence because it is unsupported by any evidence reliably demonstrating that fiduciaries that consider ESG factors are acting in the sole interest of participants and beneficiaries, or that companies that consider ESG factors such as climate change and diversity programs drive higher financial returns.” Braun v. Walsh, No. 23-cv-234 (E.D. Wis., filed Feb. 21, 2023)
Alaska Challenged Critical Habitat Designations for Ringed and Bearded Seals
The State of Alaska filed a lawsuit in federal district court in Alaska challenging the National Marine Fisheries Service’s (NMFS’s) designation of critical habitat for the Arctic subspecies of the ringed seal and the Beringia distinct population segment of the Pacific bearded seal. Alaska asserted that the critical habitat designations—which it said consisted of “an enormous area covering all or virtually all of [each] seal’s range within the United States’ jurisdiction”—violated the Endangered Species Act and Administrative Procedure Act. Alaska contended, among other arguments, that NMFS acted arbitrarily and capriciously by failing to explain how designation of critical habitat would protect sea ice essential habitat features. Alaska’s allegations in support of this argument included that NMFS failed to explain how Section 7 consultation on the impacts of discretionary federal actions on critical habitat would result in protection of sea ice essential features at risk from future climate change. Alaska v. National Marine Fisheries Service, No. 3:23-cv-00032 (D. Alaska, filed Feb. 15, 2023)
Lawsuit in Oregon Federal Court Challenged Portland’s Restrictions on Fuel-Export Infrastructure
The State of Montana, several trade groups, and a Washington-based fuel distributor filed a lawsuit in the federal district court for the District of Oregon challenging City of Portland laws and policies that allegedly prohibit new fuel-export infrastructure in the City. The plaintiffs asserted that the laws and policies “intentionally discriminate in favor of local users, unreasonably burden interstate commerce, interfere with intermodal/rail transportation, and serve no legitimate local purpose” and therefore violate the Dormant Commerce Clause, Foreign Commerce Clause, and Due Process Clause, and are preempted by the Interstate Commerce Commission Termination Act of 1995. The complaint’s allegations included that the City’s “categorical prohibition on all new infrastructure for transportation of combustible fuel” was intended to advance an illegitimate extraterritorial goal of decreasing global emissions but that the prohibition did not advance this goal because it applied overbroadly to fuel that is “transitional, clean, renewable, and/or results in lower emissions.” The plaintiffs also alleged that that the laws and policies would not lower emissions within the City because they did not limit distribution and use of fuel within the City and surrounding areas. Montana v. City of Portland, No. 3:23-cv-00219 (D. Or., filed Feb. 14, 2023)
Conservation Groups Challenged National Park Service Decisions that Would Allow Development of Waterpark in Miami-Dade County
Center for Biological Diversity and three other conservation organizations filed a lawsuit in the federal district court for the Southern District of Florida challenging the National Park Service’s release of land-use restrictions to facilitate the development of a proposed waterpark, hotel, and retail development in Miami-Dade County. The organizations alleged that the project threatened survival and recovery of endangered species and “globally critically endangered pine rocklands,” which “have been reduced to only three percent of their historic range and continue to be critically endangered by urban and agricultural development, climate change, and sea level rise.” The complaint asserted that the National Park Service violated the National Environmental Policy Act, the Endangered Species Act, and the Administrative Procedure Act. Center for Biological Diversity v. Haaland, No. 1:23-cv-20495 (S.D. Fla., filed Feb. 8, 2023)
Class Action Accused Companies of Deceptively Selling Trash Bags as “Recyclable”
A class action lawsuit filed in the federal district court for the Northern District of California alleged that Glad Products Company and Clorox Company had a “scheme to defraud environmentally conscious consumers” by selling trash bags with “Recycling” and “Designed for Municipal Use” labels. The complaint asserted that the defendants’ actions violated California’s Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act. The complaint also asserted claims for breach of warranty, fraudulent inducement—intentional misrepresentation, negligent misrepresentation, and unjust enrichment. The complaint alleged that plastic materials accounted “for a large portion of non-biodegradable waste that negatively impacts the environment,” and that 16% of U.S. plastic waste was incinerated in 2018, releasing “substantial amounts of carbon dioxide into the atmosphere” and contributing to climate change and other environmental problems. The complaint alleged that false product names and labels tricked consumers into “unknowingly contributing to making pollution worse—and paying Glad a premium to do so.” Peterson v. Glad Products Co., No. 3:23-cv-00491 (N.D. Cal., filed Feb. 2, 2023)
Groups Challenged Determination that Streaked Horned Lark Was Threatened Rather than Endangered
Center for Biological Diversity and Audubon Society of Portland filed a complaint in the federal district court for the District of Oregon challenging a U.S. Fish and Wildlife Service (FWS) decision to list the streaked horned lark as threatened rather than endangered and to issue a “special rule” under Section 4(d) of the Endangered Species Act exempting agricultural activities from liability “despite known and serious impacts” on the lark. The complaint alleged that after the remand of a 2013 listing of the species as threatened, the FWS again determined the lark was currently not in danger of extinction throughout all or a significant portion of its range, despite “the ongoing steep decline” in suitable habitat and other threats such as climate change, which causes sea level rise and increased severe weather events that threaten the lark’s Pacific Coast populations. Center for Biological Diversity v. Haaland, No. 3:23-cv-00150 (D. Or., filed Jan. 31, 2023)
Plaintiffs in Montana Federal Court Challenged Determination that Arctic Grayling Did Not Warrant Protection Under Endangered Species Act
A lawsuit filed in the federal district court for the District of Montana challenged the FWS’s determination that the upper Missouri River population of Arctic grayling did not warrant listing under the Endangered Species Act. The complaint alleged that the surviving populations “face a barrage of threats” such as low flows and barriers in river channels and warming water temperatures made “even more significant because of the current and predicted impacts of a changing climate, which are expected to reduce water flows and raise water temperatures even further.” The plaintiffs contended that the FWS impermissibly relied on unenforceable and voluntary conservation efforts to address threats to the grayling and also that the FWS failed to utilize best-available scientific information. Center for Biological Diversity v. Haaland, No. 2:23-cv-00002 (D. Mont., filed Jan. 30, 2023)
FOIA Lawsuit Sought Records Related to SEC’s Proposed Climate Disclosure Rule
The Heritage Foundation and the leader of its Oversight Project filed a Freedom of Information Act (FOIA) lawsuit against the Securities and Exchange Commission (SEC) seeking records related to the SEC’s proposed climate disclosure rule. The records sought included emails and text messages sent between any SEC personnel and individuals or entities outside the Executive Branch, individuals in the Executive Office of the President, individuals in agencies that are members of the Financial Stability Oversight Council, and individuals in the U.S. Environmental Protection Agency. The plaintiffs also requested analyses related to the proposed rule’s costs, records related to the First Amendment and the proposed rule, records to show the proposed rule’s impact on energy prices or other costs, and records regarding SEC personnel who worked on the rule and other federal agencies or entities with whom the SEC coordinated. Heritage Foundation v. U.S. Securities & Exchange Commission, No. 1:23-cv-00238 (D.D.C., filed Jan. 27, 2023)
Plaintiffs Challenged Predator Removal Project in Montana
A lawsuit filed in the federal district court for the District of Montana challenged federal defendants’ decision to continue a predator damage management program in Montana that would result in the killing of native predators, including grizzly bears, which are listed as threatened in the contiguous United States. The plaintiffs’ allegations included that the defendants failed to take into account threats to the grizzly bear, including climate change. The complaint asserted claims under the Endangered Species Act and the National Environmental Policy Act. WildEarth Guardians v. Bucknall, No. 9:23-cv-00010 (D. Mont., filed Jan. 18, 2023)
Independent Power Producer Challenged Washington Law’s Allocation of Carbon Allowances
An independent power producer that owns a power plant located in Washington challenged the constitutionality of Washington’s Climate Commitment Act. The plaintiff contended that the law’s allocation of no-cost allowances violated the Dormant Commerce Clause and Equal Protection Clause by granting no-cost allowances only to local utilities and permitting those utilities to transfer the allowances to their power plants. The defendant moved to dismiss, arguing that the law’s benefits flow to both in-state and out-of-state entities and the compliance burdens fall equally on all electricity generators. The defendant also argued that the plaintiffs could not establish they were similarly situated to public utilities and could not show that any impact on interstate commerce outweighed the benefit of minimizing impacts on Washington consumers’ energy costs. Invenergy Thermal LLC v. Watson, No. 3:22-cv-05967 (W.D. Wash., filed Dec. 13, 2022)
Environmental Groups Said CEQA Review for Proposed Development Failed to Adequately Consider Greenhouse Gas Emissions Impacts and Climate Change Impacts on Water Supply
Environmental groups challenged the City of Chico’s California Environmental Quality Act (CEQA) review for Valley’s Edge Specific Plan, which is planned for a 1,448-acre site and would consist of 2,777 dwelling units and 447,155 square feet of commercial development, as well as parks, open space, public facilities, and roadway infrastructure. The groups’ allegations included that the environmental impact report (EIR) failed to adequately disclose, analyze, and mitigate impacts related to greenhouse gas emissions. In particular, they alleged that the EIR failed to analyze emissions impacts from construction activities; failed to adequately disclose or mitigate inconsistencies with applicable land use and climate policies, including the City’s Climate Action Plan; and failed to mitigate significant impacts from mobile sources. The petition also alleged that the City failed to assess climate change impacts on the project’s water supply and demand. Sierra Club v. City of Chico, No. __ (Cal. Super. Ct., filed Feb. 1, 2023)
HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART
NGOs Challenge Adequacy of French Bank’s Plan Concerning Climate Risks of Its Activities Under Duty of Vigilance Law
In October 2022, French environmental NGOs Notre Affaire à Tous, Les Amis de la Terre, and Oxfam France sent a notice of intent to sue BNP Paribas. Considering the answer by BNP Paribas, sent on January 24, 2023, as largely insufficient and unsatisfactory, the NGOs decided to bring suit before the Judicial Court of Paris. The notice of intent to sue and the subsequent summons filed before the Judicial Court of Paris on February 23, 2023 claim that BNP Paribas violated the loi sur le devoir de vigilance of 2017 (law on the duty of vigilance), the articles of the Civil Code on the prejudice écologique, which refers to any “non-negligible impairment of the components or functions of ecosystems or the collective benefits derived by humans from the environment,” and BNP’s “unilateral commitment of will” to limit and combat climate change.
As characterized in the summons, the law on the duty of vigilance provides that specific companies must establish a plan to prevent the violation of human rights and environmental damage that may occur in the course of their business. If the plan is not correctly drafted or is inadequate to measure and prevent these risks, the company is liable for the damages that it could have prevented. Anyone with a legitimate interest can also ask for injunctive relief to force the company to comply with the law, a groundbreaking preventative mechanism for French legal proceedings. The summons details multiple violations of the law. The violations alleged in the summons relate not only to how BNP Paribas’s plan is drafted but also the lack of clarity concerning the report of information about investments and loans and the shortcomings of the measures that the bank allegedly implements to respect the parameters of the Paris Agreement.
The summons contained the following claims. First, the plan is not self-sufficient, but it refers to other documents that do not provide for binding commitments. Second, it does not identify with sufficient clarity the climate risks deriving from its activities, both in terms of the fossil fuel projects in which BNP Paribas is directly involved and the companies that it supports through its financing and investments. Third, it is not transparent concerning the disclosure and reporting of information concerning BNP Paribas’ financing and investment activities, as it is limited only to some sectors and does not include scope 3 emissions. Fourth, the plan does not contain any precise and exhaustive information on the stocks and flows of financing and investments to companies active in the fossil fuel sector. Finally, the plan does not include the commitment to cease all financing and investments that support the expansion of fossil fuels that is necessary to comply with the law on the duty of vigilance.
Therefore, the plaintiffs claim that BNP Paribas must immediately terminate any financing to companies which develop new fossil projects and any investment in any company which develops new fossil projects. Concerning its existing investments, BNP Paribas must exercise its voting rights and influence in order to force the invested company to renounce new fossil projects and adopt, detail and publicly implement measures compatible with limiting global warming to 1.5°C. If this is not possible, BNP Paribas must divest. Moreover, concerning its activities of financing and investment in any greenhouse gas-emitting activities, it must adopt, publish, and effectively implement all measures compatible with a 1.5°C trajectory. Notre Affaire à Tous Les Amis de la Terre, and Oxfam France v. BNP Paribas (Judicial Court of Paris, France)
DECISIONS & SETTLEMENTS
Mexican District Court Ruled Electric Industry Law Amendments Violate Right to Healthy Environment and Paris Agreement
On March 24, 2021, five civil associations (Nuestros Derechos al Futuro y Medio Ambiente Sano A.C.; Alianza Juvenil por la Sostenibilidad, A.C.; Naj Hub, A.C.; Consejo Interuniversitario Nacional de Estudiantes de Derecho, A.C.; and Ágora Ciudadanos Cambiando México, A.C.), with the support of the #JóvenesPorNuestroFuturo collective, made up of more than 20 youth groups, filed a lawsuit against the Mexican Congress and the President of Mexico challenging the 2021 amendments of the Electric Industry Law. The amendments, in general: (i) eliminate the obligation to dispatch the cheapest energy first and give priority in the process to the Federal Electricity Commission’s (CFE) coal and fuel oil-fired power plants, and (ii) eliminate the purchase of basic electricity by the CFE through long-term auctions. Before the amendments, the energy purchased in the auctions and the energy dispatched first was primarily renewable energy. The plaintiffs argue that the Mexican State is constitutionally obligated to mitigate and adapt to climate change, which necessarily implies designing and implementing an energy policy that favors the gradual substitution of fossil fuels for renewable energy. The obligation to transition from fossil fuels to renewable energy in the generation of electricity is based on Article 25 of the Constitution, in connection with the 17th and 18th transitory articles of the Decree of Constitutional Energy Reforms of 2013.
On December 15, 2022, the District Court ruled in favor of plaintiffs and held that the 2021 amendments to the Electric Industry Law violate the right to a healthy environment and the Paris Agreement by favoring the generation of electricity through fossil fuels. In its decision, the Court recognized four relevant issues: (1) that NGOs have legal standing to file amparo lawsuits (constitutional challenges) to defend the right to a healthy environment; (2) that the Mexican government has a duty to reduce the use of fossil fuels to produce electricity; (3) that the Mexican government has a duty to increase the proportion of clean energy in the electricity sector as part of its obligation to mitigate climate change; and (4) that the challenged amendments have a negative impact on Mexico’s clean energy obligations and its international commitments to reduce greenhouse gas emissions. On December 28, 2022, the Mexican government appealed the District Court’s decision to uphold the plaintiffs’ claims. The appeal is pending resolution by the appellate Collegiate Court. Nuestros Derechos al Futuro y Medio Ambiente Sano et. al., v. Mexico (District Court in Administrative Matters, Mexico)
Mexican District Court Held Electric Industry Law Amendments and Energy Sector Program 2020 Violate Right to Healthy Environment
In 2021, Greenpeace challenged the constitutionality of the amendments to the Electric Industry Law and the National Electricity Sector Development Program 2020-2034 (PRODESEN). In its suit, Greenpeace also asked for a stay of the implementation of both regulations. Plaintiff argued that the regulations displace the use of renewable energy sources in electricity generation in favor of polluting, fossil fuel sources. This transgresses Mexico’s international commitments on climate change. The District Court ruled in favor of Greenpeace on January 9, 2023. The Court decided that the 2021 amendments to the Electric Industry Law, as well as the Energy Sector Program 2020, violate the right to a healthy environment by prioritizing the energy generated through fossil fuels. On February 9, 2023, the Mexican government appealed the District Court decision to uphold the plaintiff’s claims. The appeal is pending resolution by the appellate Collegiate Court. Greenpeace v. Ministry of Energy and Others (District Court in Administrative Matters, Mexico)
Mexican Appellate Court Rejected Claim That Mexico’s 2020 NDC is Regressive in Violation of Human Rights Law
On March 9, 2021, Greenpeace filed an amparo, an emergency proceeding, against the National Institute of Ecology and Climate Change, the Inter-secretarial Commission on Climate Change, the Secretariat of Environment and Natural Resources, the Council of Climate Change, and the Mexican President, challenging Mexico’s revised Nationally Determined Contributions (NDC). The NGO argued that the NDC failed to respect the principle of non-regression in human rights law. In its original 2015 NDC, Mexico committed to a 22% reduction in greenhouse gas (GHG) emissions by 2030 as compared to 2000 levels. In the revised NDC presented in December 2020, Mexico raised the baseline against which the GHG emission reduction is measured. Greenpeace asked the court to suspend the effects of the 2020 NDC. On December 15, 2022, the Eleventh Collegiate Court of the First Circuit in Administrative Matters heard the appeal by Greenpeace, which had argued that the 2020 NDC failed to respect the principle of non-regression in human rights law because it would effectively (i) cause the additional emission of 14 million tons of CO2e; (ii) prevent the peaking of GHG emissions stipulated for 2026; and (iii) rule out the 50% reduction target for 2050, which would nullify the mitigation horizon in the medium and long term. The Collegiate Court ruled against Greenpeace, deciding that the plaintiff did not provide sufficient evidence to prove that the NDC is regressive, nor did it prove that Mexico could emit up to 14 million tons of CO2e more in comparison to the 2015 targets. Therefore, the case was dismissed. Greenpeace v. Instituto Nacional de Ecología y Cambio Climático and Others (11th Collegiate Court of the 1st Circuit, Mexico)
Supreme Court of Mexico Upheld Dismissal of Case Challenging Electric Industry Law Amendments for Lack of Standing
On March 24, 2021, 214 young people aged between 15 and 28 years old filed a lawsuit against the Mexican Congress and the President of Mexico challenging the amendments to the 2021 Electric Industry Law. The amendments, in general: (i) eliminate the obligation to dispatch the cheapest energy first and give priority in the process to the Federal Electricity Commission’s (CFE) coal and fuel oil-fired power plants, and (ii) eliminate the purchase of basic electricity by the CFE through long-term auctions. Before the amendments, the energy purchased in the auctions and the energy dispatched first was primarily renewable energy. On December 27, 2022, in another case challenging the 2021 amendments to the Electric Industry Law, the Supreme Court decided that the plaintiffs did not have legal standing to file the lawsuit against the amendments to the Electric Industry Law because they are not in a special position that differentiates them from the rest of the society. Therefore, the Court confirmed the lower court’s decision to dismiss the case for lack of standing. Julia Habana et. al., v. Mexico (Supreme Court, Mexico)
Colombian Tribunal Declared that Colombia Had Failed to Fully Comply with the Obligations Established by the 2018 Climate Action Law
In 2022, the Office of the Inspector General of Colombia and the Office of the Inspector in Environmental Matters filed a joint lawsuit before the Administrative Tribunal of Cundinamarca seeking a declaration of non-compliance by the Ministry of Environment and Sustainable Development (the Ministry) and the President of their obligations under Law 1931 of 2018. The law, also referred to as the 2018 Climate Action Law, establishes guidelines for climate action in Colombia. The statute’s main goals are to put forth climate change adaptation measures, mitigate greenhouse gas (GHG) emissions, reduce the population and ecosystem’s vulnerabilities, and promote a just transition towards decarbonization. Plaintiffs claim that it has been four years since the 2018 Climate Action Law was issued and the government (represented by the Ministry and the President) has failed to comply with articles 15, 18, 19, 26, and 29 of the law. Claimants point out that article 35 of the same law gave the government three years from the date of promulgation to implement all of its provisions.
Article 15 orders the Colombian government to establish a regulatory framework to define and determine actions related to short-, medium- and long-term nationally determined contributions in the context of the United Nations Framework Convention on Climate Change. Article 18 commands the Ministry to issue guidelines regarding the creation, implementation, monitoring, and evaluation of comprehensive climate change management plans at the regional level. Article 19 instructs the government to establish guidelines directed towards territorial entities and environmental authorities to incorporate climate change response and management in their environmental, land use, and financial planning documents. Article 26 directs the Ministry to issue regulations regarding the National Information Service on Climate Change (created by the 2018 Climate Action Law) and to outline rules and procedures to apply it to other existing systems. Article 29 requires the Ministry to establish a number of annually negotiable GHG quotas and delineate the terms and conditions of the quotas.
The Tribunal issued a decision on February 23, 2023. It found that the obligation under article 18 had been fulfilled by the Colombian government through Resolution No. 0849 of 2022, which establishes guidelines to create and implement comprehensive climate change management plans at the regional level in accordance with the 2018 Climate Action Law. However, the Tribunal declared that defendants had failed to fully comply with the obligations established by articles 15, 19, 26, and 29. Despite some initial efforts to engage in climate action-related activities, the Tribunal found that the Colombian government has to date failed: (i) to regulate goals related to nationally determined contributions; (ii) to issue a legal document to guide territorial entities and authorities in incorporating climate change in their regulatory and planning instruments; (iii) to regulate the National Information Service on Climate Change (although draft legislation is pending); and (iv) to establish GHG quotas (draft legislation is also pending). As a result, the Tribunal ordered the Ministry and the President to fully comply with the 2018 Climate Action Law’s requirements and established a new deadline of six months from the time the decision is final and enforceable.
The Office of the President has filed an appeal, which is currently pending a determination of admissibility. Office of the Inspector General and Others v. Ministry of Environment and Sustainable Development and Others (Tribunal of Cundinamarca, Colombia)
Czech Republic’s Supreme Administrative Court Overturned Decision Ordering Government to Take Necessary Measures to Slow Climate Change
On April 21, 2021, a group of Czech citizens filed suit against the government of the Czech Republic for its inaction on climate change and the human rights harms this inaction is causing. In June 2022, the Prague Municipal Court had ruled that the government’s failure to take sufficient GHG mitigation measures is unlawful and that the government should abstain from continuing to infringe the plaintiffs’ rights by such failure. The court derived the obligation to mitigate climate change from the Paris Agreement and the EU Climate Law (which sets the target to reduce greenhouse gas emissions by 55% by 2030 compared to 1990), as the Czech Republic does not have a climate act yet.
On February 20, 2023, the Supreme Administrative Court of the Czech Republic overturned the decision of the Prague Municipal Court and referred the case back to the first instance court (the Prague Municipal Court). The main reason for the reversal of the first instance decision was the collective character of the European Union’s obligation to reduce its GHG emissions by 55% by 2030 and the fact that the specific distribution of the obligations to Member States is currently still subject to legislative and political negotiations. The Supreme Administrative Court also stated that plaintiffs should further specify in which specific areas the defendants’ alleged passivity breached their obligations, which specifically interfere with the applicants’ rights. Klimatická žaloba ČR v. Czech Republic (Supreme Administrative Court, Czech Republic)
German Court Finds Protests Against Climate-Damaging Measures May Be Covered Under the Freedom of Conscience Doctrine
In March 2022, the District Court of Mönchengladbach-Rheydt (federal State of North Rhine-Westphalia) acquitted the defendant who had been charged with trespassing when protesting on the site of a lignite mine. While the District Court found that the entering of the site fulfilled the elements of the crime under Section 123(1) of the German Criminal Code, it was neither “unlawful” nor “without authority,” as the defendant exercised his fundamental rights under Article 8(1)—freedom of assembly; Article 5(1)(1)—freedom of expression; and Article 4(3)—freedom of conscience of the Basic Law. The District Court held that climate change was an issue of “paramount importance.” The political decision to cease lignite mining—an activity recognized as harmful—and the subsequent decision to delay its phase-out could, in the words of the Court, place individuals in a state of moral dilemma, wishing to protest against it. It follows, that protests against climate-damaging measures can be covered by freedom of conscience. District Court Mönchengladbach-Rheydt, Urt. v. 14.3.2022 – 21 Cs – 721 Js 44/22 – 69/22 (District Court of North Rhine-Westphalia, Germany).
Case Against Volkswagen’s Alleged Excessive Carbon Emissions Dismissed
In November 2021, an organic farmer sued Volkswagen AG for its excessive emissions of carbon dioxide. The plaintiff submitted that Volkswagen’s business activities were adversely impacting his personal liberty and property rights. He submitted that VW, as the world’s second largest car manufacturer, was partly responsible for the damage climate change has caused to his farm in the form of droughts and heavy rains. Claimant argued that VW’s sale of millions of cars exacerbates the climate crisis, causing future losses.
The plaintiff sought, among other relief, a declaration that between 2021 and 2029 a maximum of 25% of Volkswagen’s passenger cars and light commercial vehicles sold may operate on an internal combustion engine, and from 2030 onwards none at all. The plaintiff also submitted that the defendant must reduce its carbon dioxide emissions by 65% as compared to its 2018 emissions. In February 24, 2023, the court rejected the farmer's claims. The court ruled that the suit was unfounded. It said that it could not establish that the alleged damage to the plaintiff's property, health, and rights could be remedied by the measures he demanded alone. Allhoff-Cramer v. Volkswagen AG (Regional Court of Detmold, Germany)
German Court Finds a Permanent Climate Camp Qualifies as an Assembly under Article 8 of the German Basic Law
In July 2020, Fridays for Future Augsburg set up a climate camp next to the city’s town hall that was later disbanded by the city. Activists challenged the city’s action. During the proceedings, the city submitted that the climate camp was not an assembly, as protected by Article 8 of the German Basic Law (Grundgesetz; GG), but rather that fun and entertainment were the motivating factor. In spring 2022, the Higher Administrative Court of Bavaria (BayVGH) upheld the judgment by a lower court, which had already found that the climate camp constituted an assembly under Art. 8 GG. The BayVGH held that Art. 8 GG protects diverse forms of communal activity aimed at forming public opinion. This also includes non-verbal forms of expression, activities such as poster painting and workshops, or engaging with politicians in the framework of the camp. The city of Augsburg criticized the Court for only considering the first 10 days of the camp July 1-10, 2020), which were the subject of the dispute, and for not making more general statements on the legality of permanent protest camps. The city of Augsburg decided against the possibility of an appeal to Federal Administrative Court, and instead announced strict conditions for the permanent assembly. Fridays for Future v. Augsburg (Higher Administrative Court of Bavaria, Germany)
Belgian Constitutional Court Rejects Challenge to Fuel Oil Boiler Ban
On October 22, 2021, the Region of Flanders adopted the Decree “amending the Energy Decree of May 8, 2009, which prohibits the installation or replacement of a fuel oil boiler.” This Decree introduced a ban from January 1, 2022 on the installation of fuel oil boilers in new buildings. From that date, an oil boiler may no longer be installed or replaced by another oil boiler in existing buildings, unless there is no natural gas network in the adjacent street. The non-profit association “Belgian Federation of Fuel Traders,” four fuel oil suppliers, and a private individual who heats their home with a fuel oil boiler jointly sought the annulment of this Decree before the Belgian Constitutional Court (request no. 147/2022).
The complainants alleged that (i) the Region of Flanders exceeded the limits of its competences (in violation of the complex distribution of competences in Belgium as a federal State), (ii) that the Decree discriminates against fuel oil boilers and hinders free trade and freedom of enterprise, and (iii) that the Decree discriminates against fuel oil boiler owners depending on whether they live on a street where a natural gas network is available. The Constitutional Court rejected all three grounds for annulment in its Judgment of November 10, 2022.
As to the first ground for annulment, the Court noted that the measure at issue did not, as was argued by the complainants, have “a market-exclusive effect” and, therefore, did not fall within the (exclusive) competence of the Federal Government. With regards to the second ground for annulment, the Court found that the difference of treatment created by the measure at issue pursued a legitimate objective of public interest, namely, environmental and climate protection. It referred to a preliminary scientific study conducted by the Flemish legislator, which showed that in 2019 fuel oil in the Flemish Region corresponded to a share of 35% in the greenhouse gas emissions from buildings and a share of 10% in greenhouse gas emissions not covered by the European emissions trading system. Furthermore, this scientific study showed that the phasing out of fuel oil boilers could make a significant contribution to Flemish emission reduction in the short and long term and that the emission factor for fuel oil is considerably higher than for natural gas, propane, and butane gas. Therefore, the Court considered that the legislator could decide that a mere incentive through premiums and awareness-raising would not suffice and opt to phase out only fuel oil boilers as a first step.
Finally, the Court also rejected the third ground for annulment because the prohibition in principle on the installation and replacement of fuel oil boilers has positive effects on the reduction of greenhouse gas emissions and the protection of the soil, and the legislator has taken into account the impact of this ban on owners of existing installations by setting up a partial phase-out, focusing the ban on the most polluting heating installations, and giving owners of fuel oil boilers the possibility to switch to natural gas, thus offering them a viable alternative.
As a consequence, the request for annulment was rejected. Belgische Federatie der Brandstoffenhandelaars vzw and Others and Lamine v. Flemish Government (Belgium, Belgian Constitutional Court)
Chinese Court Finds Cryptocurrency-Related Activities Go Against the Public Interest Due to Consumption of an Immense Amount of Energy
In May 2019, Beijing Fengfujiuxin Marketing and Technology Co. Ltd. (“the plaintiff”) and Zhongyan Zhichuang Blockchain Co. Ltd. (“the defendant”) signed three contracts that stipulated the plaintiff would purchase 1,542 micro data storage servers for bitcoin mining and transfer 93% of the profits from the mining to the plaintiff as either fiat currency or bitcoin (BTC). The plaintiff paid RMB 100 million to purchase the facilities and maintain their operation. The defendant paid 18.3463 BTC but stopped sharing the profits from the mining operation afterward. Therefore, the plaintiff sued and sought damages of 278.1655 BTC or USD 95.5 million (roughly RMB 67 million).
On December 14, 2021, the District Court of Chaoyang in Beijing rejected the plaintiff’s claims, as the contractual arrangement is voided. According to Article 52(4) of the Contract Law, a contract is void if it harms public interests. To determine the requirements of public interests, the court turned to several “notices” and “announcements” issued by various governmental departments, including the People’s Bank, Ministry of Public Security, National Development and Reform Commission, and Supreme People’s Court, on the prevention and resolution of risks of virtual currency trading. The court found that, according to these policy documents, cryptocurrency-related activities consume an immense amount of energy and can create instability in the financial market, therefore going against public interests. As a result, the contractual arrangements between the parties are invalid because they jeopardized public interests. Unsatisfied by this decision, the plaintiff appealed to the Intermediate People’s Court.
On July 7, 2022, Beijing Third Intermediate People’s Court dismissed the plaintiff’s appeal. It upheld both the decision and the reasoning of the court of first instance. Beijing Fengfujiuxin Marketing and Technology Co. Ltd. v Zhongyan Zhichuang Blockchain Co. Ltd. (China, District Court of Chaoyang)
Review of the Termination of Municipality Public Works Employees Due to Changing Climate Conditions Sought from Supreme Court of Chile
As described in the lawsuit filed on February 4, 2022, the plaintiff entered into a contract with the defendant the Municipality of Monte Patria in May 2017 for services related to the Department of the Environment, where he maintained the city’s gardens and public spaces, kept a record of the city plants, trees, and shrub needs, and designed gardens for public spaces and schools. It was initially fixed until December 31, 2017 and then renewed every three months based on the evaluation of the person in charge of the Department. There were successive renewals of contracts until December 31, 2019. On January 2, 2020, the Municipality amended his contract, assigning him the tasks of “planning the recovery of public spaces, designing and executing projects for green areas under its Environment Director.” On November 30, 2021, the defendant notified him of the termination of his contract (“non-renewal”), and he was dismissed on December 31, 2021. According to the plaintiff, he was dismissed for political reasons and due to a discriminatory act by the defendant.
Due to the fixed-term nature of the contract, the Ovalle District Court rejected the claim, stating that the defendant municipality did not have to justify its termination. As for climate change, it maintains that the separation of the plaintiff was caused by an administrative reorganization affecting the unit or department where the plaintiff worked, such as Environment. The judgment indicates that the prolonged drought affecting the province and much of the country is public knowledge, so it seems reasonable to adopt measures to optimize water resources and reduce green areas of the commune, which happens to be the operational area of the plaintiff both in planning, monitoring, and care; and this measure has justified the rationing of human resources for the plaintiff's responsibilities.
The plaintiff filed an action for annulment before the Court of Appeals for the City of La Serena. According to him, the dismissal was unjustified and politically motivated. Regarding the argument that the Department of the Environment should be restructured, he maintains that the climate crisis has been around the city for over 20 years, and that his work focuses specifically on water resource optimization, which demonstrates the weakness of the Municipality’s argument. The Court of Appeals of La Serena dismissed the appeal without addressing the defendant’s climate change argument. A new legal recourse for unification of jurisprudence was filed by the plaintiff against this judgment before the Supreme Court. The legal action is still pending. Ricardo Castillo Arancibia v. Municipality of Monte Patria (Chile, Third District Court of Ovalle, Court of Appeal of La Serena, Supreme Court of Chile)
Court Rejects Argument that Defendant Government of New Zealand Was Required to Consider the Effects that Granting Such Permits Would Have on Greenhouse Gas Emissions
In 2022, Students for Climate Solutions brought a case against the New Zealand Minister of Energy and Resources. The plaintiff argued that the defendant Minister, in granting petroleum exploration permits under the Crown Minerals Act 1991 (CMA), had failed to adequately consider the effects of the exploration on climate change. Specifically, the plaintiff claimed that: (1) climate change was a mandatory relevant consideration for the purposes of New Zealand administrative law; (2) that the failure to consider climate change rendered the decision unreasonable; and (3) that the minister had failed to have proper regard for the Treaty of Waitangi, New Zealand’s founding document.
The Court rejected all three grounds of review. On the first ground, the Court found that the CMA was intended in part to promote the exploitation of natural resources, and that climate considerations were absent from the statutory scheme (which was instead designed to promote fossil fuel mining). Secondly, the Court found that the Minister’s decision was not unreasonable. And finally, the Court found that the decision did not violate principles of the Treaty of Waitangi. The Court accepted that the CMA should be interpreted, as far as possible, consistently with Treaty principles. However, in this case the Court found that the Minister sufficiently considered such principles, and they had been appropriately weighed against other factors—the Minister was not required to engage in any broader policy assessment. The Court also expressed concern that the relevant Māori authorities were not represented in the proceedings.
The Court also made general observations about the significance of climate change in the scrutiny of judicial review applied under New Zealand law. The Court both rejected a submission by the plaintiff that a more intense level of scrutiny was necessary, as well as a submission by the defendant that greater deference should be applied given the complex nature of climate change. Students for Climate Solutions Inc v. Minister of Energy and Resources (The High Court of New Zealand, New Zealand)
Japanese Court Rejects Fight Against New Coal-Fired Power Plant At Yokosuka
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. First, 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 from the coal-fired power plant related to air pollution but did not recognize the standing and claims related to climate change and carbon dioxide 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 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 because 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. Yokosuka Citizens v. Japan (Tokyo District Court, Japan)
Turkish Court Rejects Challenges to 37 Active Coal Power Plant Licenses
The applicants, as 16 environmental NGOs, before filing the case at hand, made an application before the Presidency of the Republic of Turkey, requesting the annulment of the licenses of 37 active coal thermal power plants in Turkey. The basis for this application is scientific reports that, according to the applicants, stated that pandemics such as the recent coronavirus pandemic are a result of global climate change. Accordingly, it is alleged that the coal mines and thermal power plants play a leading role for climate change and therefore, their activities must be terminated. The Presidency of the Republic of Türkiye didn’t respond to this application in 60 days, which is deemed as a tacit rejection under Administrative Judicial Procedure Act. The applicants filed the case in December 2020 and requested the annulment of the tacit rejection of the Presidency.
Presidency of Republic of Türkiye stated in its defense, the authority to annul the license for the power plants belongs to the Ministry of Environment, Urbanization and Climate Change and Energy Market Regulatory Authority. Energy Market Regulatory Authority, in its defense, stated that the relevant authority for environmental assessments is the Ministry of Environment, Urbanization and Climate Change. Finally, the Ministry alleged that there is no scientific proof of the relationship between climate change, pandemics, and coal power plants.
The Court rejected the case, finding that (1) the allegations made by the claimants do not constitute a legal ground for the annulment of the license of the power plant and (2) the claimants have not initiated any legal procedures against the production license, environmental assessment report, and the documents on environmental permitting and license. In its decision dated March 28, 2022, the Court also stated that the license which has been granted in accordance with the legal regulations cannot be annulled upon abstract grounds and therefore the tacit rejection by the Presidency cannot be deemed illegal.
The case has been brought before the Regional Administrative Courts by the Claimants for appeal and in February 2023, this appeal was rejected on the ground that the decision given by 11th Administrative Court of Ankara was found to be lawful. Applicants are now preparing to bring the case before Court of Cassation. Yeşil Artvin Derneği and others v. Presidency of the Republic of Türkiye, Ministry of Environment, Urbanization and Climate Change and Energy Market Regulatory Authority (Administrative Court of Ankara, Turkey)
Permission to Appeal to the UK Supreme Court Sought in Challenge Against UK Export Finance’s Decision to Provide over $1 Billion of UK Taxpayers’ Money to Help Finance a Liquefied Natural Gas Project Off the Coast of Mozambique
In September 2020, Friends of the Earth England Wales and Northern Ireland brought a legal challenge against UK Export Finance’s decision (the “Decision”) to provide over $1 billion of UK taxpayers’ money to help finance a liquefied natural gas (LNG) project off the coast of Mozambique. Through the project, the energy company Total (an interested party) aims to extract 43 million tons of LNG per year for 32 years. This will result in total combustion emissions of 4.3 billion tons of CO2e: more than the total annual emissions for all 27 countries within the EU. This case is not concerned with whether, or the extent to which, the UK government should have considered the Paris Agreement in reaching its decision. Rather, it is concerned with whether, having concluded that both the project and its financing were compatible with the UK and Mozambique’s obligations under the Agreement, and having taken the decision on that basis, the decision was lawful.
In March 2022, the High Court issued a judgment with a split two-judge court. One of the judges ruled: (a) the government erred as it had no rational basis to conclude financing the project was consistent with article 2(1)(c) of the Paris Agreement; (b) government ministers approving the deal were misled; and (c) for finance flows to be aligned to the Paris Agreement, they must be demonstrably aligned with the Agreement’s temperature goals. The second judge ruled the decision was lawful. He held the court should give the government latitude in deciding for itself what inquiry to make, for example when quantifying climate impacts, and that the court should only scrutinize the government’s decision lightly. The claim proceeded to the Court of Appeal.
In January 2023, the Court of Appeal gave judgment, unanimously dismissing Friends of the Earth’s appeal. The court held that:
1) On the standard of review, the government was only required to adopt a “tenable” view of what the Paris Agreement meant. It was not required to adopt a correct view, as Friends of the Earth had argued (relying on the Vienna Convention).
2) In this case the government had adopted a tenable view.
3) It was not irrational to make the decision to fund such a project without quantifying its scope 3 emissions. The project would have gone ahead with or without finance from UK Export Finance, the absolute quantification of scope 3 emissions would not have answered the nuanced question of whether the financing was compatible with the UK’s obligations under the Paris Agreement, and the obligations in question were not absolute requirements to restrict the increase in global average temperature and to make finance flows consistent with a low-emissions pathway and climate-resilient development, but rather, these were only some of the purposes of the Paris Agreement.
Though the court declined to construct the Paris Agreement’s precise meaning, it held that:
1) The actions required by Articles 4, 7, 9, 10, 11, and 13 are not merely aims and aspirations, as one of the lower judges held, but are to be taken with the aim of strengthening the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty and for purposes including achieving the temperature goals and making finance flows consistent with a low-emissions pathway.
2) The temperature goal in article 2(1)(a) is a clear objective of the Paris Agreement, to which all parties committed.
3) It was not clear to what extent the project would contribute to the fossil fuel transition, and it was not necessary for the respondents to take any firm view as to the precise nature of the UK’s obligations under the Paris Agreement, only as to what was not required of the UK, namely that article 2(1)(c) does not create an obligation for the UK to show that its decision on overseas funding is consistent with a low-emissions pathway. Because the respondents were advised that the project could, in some scenarios, align with the UK’s obligations under the Paris Agreement, the decision was not irrational.
Friends of the Earth have applied for permission to appeal to the UK Supreme Court. Friends of the Earth v. UK Export Finance (Court of Appeal (Civil Division), U.K.)
NEW CASES, MOTIONS, AND OTHER FILINGS
FIFA Sued for Allegedly Misleading Consumers by Claiming That 2022 World Cup Was Carbon-Neutral
In November 2022, the New Weather Institute submitted a complaint against FIFA to the Advertising Standards Authority (ASA), the self-regulatory organization of the advertising industry in the UK. The complaint alleges that FIFA’s claims that the 2022 World Cup in Qatar was carbon-neutral are wrong and likely to mislead consumers in the UK, therefore breaching multiple provisions of the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (“the Code”), and specifically the provisions on misleading advertising and on environmental claims. FIFA presented the 2022 Qatar World Cup as “fully carbon-neutral” in its online presence. It operated a “climate pledge” mechanism targeting ticket holders, requesting them to make efforts towards reducing their carbon footprint in their daily life, and informing those taking the pledge that their emissions were offset by FIFA.
In particular, the complaint alleges that FIFA:
- Firstly, ignored emissions reductions as an essential part of carbon neutrality; it did not demonstrate that it has done everything it can to reduce its own emissions prior to compensating for the remaining emissions (e.g., when it decided to award the 2022 World Cup to Qatar, a country with little football infrastructure in place).
- Secondly, used unsound methodology for its GHG accounting, breaching the Code by only partially accounting for the life cycle of the stadiums, by sending wrong signals regarding the stadiums’ impact on the environment, and by not taking into account day shuttle flights advertised by Gulf regional airlines when calculating flight emissions of ticket holders.
- Thirdly, and more broadly, generally claimed that a mega-event like the World Cup can be compensated with offsetting. The carbon credits bought by FIFA fail to meet some of the carbon market standards, as they lack additionality and do not permanently remove carbon. Further, the Code was allegedly breached by FIFA by failing to reach the level of substantiation required for an absolute statement like that of carbon neutrality.
By claiming carbon neutrality in this way, FIFA allegedly gave ticket holders the impression that attending the World Cup does not have an impact on the environment. New Weather Institute v. FIFA (Advertising Standards Authority, UK)
Lawsuit Filed in Germany to Compel Alignment of New Energy Policies with Emission Reduction Targets Set Out in Climate Protection Act
In September 2022, environmental organization Deutsche Umwelthilfe (DUH) filed a case against the State Office for Mining, Energy and Geology at the Federal Administrative Court in Leipzig. The suit aims to limit the permit given for the transport of liquefied natural gas (LNG) to 10 years, to align with the overall climate targets as set by the Climate Protection Act. DUH also submits that from January 1, 2033 onwards, the pipeline may only be operated with green hydrogen or its derivatives. Deutsche Umwelthilfe (DUH) v. State Office for Mining, Energy and Geology (Federal Administrative Court, Germany)
Romania Court to Decide Whether the Mitigation and Adaptation Targets Undertaken by the Romanian Government Violate the Paris Agreement, and European and Domestic Law
On January 31, 2023, the NGO Declic and a number of individuals lodged a case before the Cluj Court of Appeal against the Romanian Government, the Ministry of Energy, and the Ministry of Environment, Water and Forests, seeking a court order directing the authorities to take all necessary measures to reduce GHG emissions by 55% by 2030 compared to 1990 levels and to achieve climate neutrality by 2050. They also demand that the court order the Romanian Government to take adequate measures to increase the share of renewable energy in final energy consumption to 45% and to increase energy efficiency by 13% by 2030. Further, they requested the court to order the Romanian authorities to implement concrete and coherent climate change mitigation and adaptation plans, including annual carbon budgets, within a maximum of 30 days from the final judgment, in order to meet the objectives of the Paris Agreement.
The plaintiffs have asked the court to answer three questions:
1. Whether national authorities are in breach of their legal obligations by applying GHG emission reduction targets for 2030 that are significantly lower than the target agreed at EU level for 2030.
2. Whether, according to objective standards (such as the reasonableness tests applied by the UN Committee on Economic, Social and Cultural Rights), the measures taken by central authorities are sufficient and proportionate and will result in limiting global warming to 1.5-2 degrees Celsius?
3. Whether the measures taken by the defendants are compatible with the rights and freedoms guaranteed by the Romanian Constitution, the EU Charter of Fundamental Rights, and the European Convention on Human Rights (right to a future in accordance with human dignity, right to health and an ecologically balanced environment, right to life and privacy).
The claimants argue that the defendants have both general and specific legal obligations to mitigate and adapt to climate change. The general obligation stems from a number of sources of law, namely: (i) the Constitution of Romania, which provides that the Romanian government shall ensure a better quality of life for its citizens, and restore and protect the environment, (ii) the Paris Agreement, and (iii) the European Climate Law. They highlight that the public property does not mean that the government can exploit it with no regard to the consequences, but rather in the public interest. Natural resources such as soil, water, air, and wildlife are part of an enduring heritage, and the government has a statutory duty to preserve them in order to safeguard citizens’ constitutional rights to a healthy environment, to life, and the like. Specific obligations derive from European and national secondary legislation and soft law instruments (Repower EU and domestic plans) and deal with increasing the share of renewables in the national energy grid and energy efficiency. For instance, in the field of renewable energy, it can be observed that Romania’s ambitions are falling (38% for 2020, compared to 30.07% for 2030). Overall, the claimants conclude that the Romanian government has taken meager measures, and is therefore failing to meet its legal obligations. Declic et al. v. The Romanian Government (Cluj Court of Appeal, Romania)