March 2024 Updates to the Climate Case Charts
Each month, the Sabin Center for Climate Change Law collects and summarizes developments in climate-related litigation, which we also add to our U.S. and global climate litigation charts. If you know of any cases we have missed, please email us at [email protected].
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #180:
FEATURED CASE
Fossil Fuel Companies Asked U.S. Supreme Court to Consider Viability of Honolulu’s State-Law Climate Change Claims
On February 28, 2024, fossil fuel companies filed a petition for writ of certiorari in the U.S. Supreme Court seeking review of the Hawai‘i Supreme Court’s October 2023 decision allowing the City and County of Honolulu and the local water utility board (Honolulu) to proceed with state common law claims based on the companies’ alleged misrepresentations and concealment of their products’ contributions to climate change. The companies’ petition presented a single question: “Whether federal law precludes state-law claims seeking redress for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate.” The companies contended that the case presented the Court with “its only foreseeable opportunity in the near future to decide a dispositive question that is arising in every climate-change case.” They characterized the question as one “of extraordinary importance to the energy industry, which is facing dozens of lawsuits seeking billions of dollars in damages for the alleged effects of global climate change.” They argued that the Hawai‘i Supreme Court’s decision conflicted with the Second Circuit’s decision in City of New York v. BP p.l.c.—which held that federal law precluded similar claims by New York City—and also could not be reconciled with other federal circuit of appeals decisions regarding the application of state law to interstate pollution. The companies also argued that the Hawai‘i Supreme Court’s decision conflicted with U.S. Supreme Court precedent, which the companies summarized as providing that “regulation of interstate pollution is an inherently federal area necessarily governed by federal law, and Congress has not permitted—and indeed has preempted—resort to state law except for claims seeking redress for harms caused by in-state emissions.” The companies also argued that the Hawai‘i Supreme Court’s conclusion that Honolulu’s claims “did not fall within the inherently federal area of interstate pollution” was based on “a false dichotomy” between injury caused by failure to warn and deceptive promotion and injury caused by interstate and international emissions. The companies contended that the Supreme Court’s review was warranted because “[t]he stakes could not be higher”; they stated that the more than two dozen cases filed by states and municipalities against fossil fuel companies “present a serious threat to one of the Nation’s most vital industries.” They argued that allowing cases to proceed under state law was “a blueprint for chaos” and that Honolulu’s case was a “suitable vehicle” for reviewing the question presented. Sunoco LP v. City & County of Honolulu, No. 23-947 (U.S. Feb. 28, 2024)
Shell plc and two of its subsidiaries filed a separate petition for writ of certiorari. The petition presented two questions: (1) “Whether claims seeking damages for the effects of interstate and international emissions on the global climate are beyond the limits of state law and thus preempted under the federal Constitution,” and (2) “Whether the Clean Air Act preempts state-law claims predicated on damaging interstate emissions.” Shell plc v. City & County of Honolulu, No. 23-952 (U.S. Feb. 28, 2024)
DECISIONS AND SETTLEMENTS
Fourth Circuit Affirmed Remand of Anne Arundel County and Annapolis Climate Cases Against Fossil Fuel Companies
The Fourth Circuit Court of Appeals affirmed a district court’s decision remanding cases brought by Anne Arundel County and the City of Annapolis against fossil fuel companies to state court. The Fourth Circuit described the cases as two of the cases brought by state and local governments in recent years alleging that the defendants “misrepresented and concealed information about their fossil fuel products in violation of state tort and consumer protection laws.” The Fourth Circuit said the companies “have sought—over and over and over—to remove the cases to federal court” but that “that gambit has failed in at least ten cases already,” and “[t]he eleventh time is not the charm.” The Fourth Circuit noted that the district court in Anne Arundel County’s and Annapolis’s cases had rejected most grounds for removal as foreclosed by the Fourth Circuit’s 2022 decision in Mayor & City Council of Baltimore v. BP p.l.c. and that the district court also rejected a variation of one of those foreclosed grounds (federal-officer removal) as well as a new argument for removal related to the companies’ First Amendment defenses to the plaintiffs’ claims. Regarding the variation of the defendants’ federal-officer removal argument, the Fourth Circuit concluded that it did not supply a basis for jurisdiction because the actions that the companies said they did under federal authority—including production of fuels in connection with military activity in the 1940s and 1950s and extraction of fuels and operation of energy infrastructure under federal regulations or commercial relationships with the federal government—were not the activities that were the subject of the plaintiffs’ allegations, which concerned concealment or misrepresentation of information about fossil fuel products. Regarding the defendants’ new argument that courts would necessarily have to consider First Amendment questions regarding protection of commercial speech to resolve the localities’ misrepresentation claims, the Fourth Circuit agreed with two other circuit courts of appeals that the First Amendment issues were not “necessary elements” of the local government’s claims and therefore did not supply a basis for federal jurisdiction. Anne Arundel County v. BP p.l.c., No. 22-2082 (4th Cir. Feb. 26, 2024)
Vermont Federal Court Remanded State’s Consumer Protection Claims Against Fossil Fuel Companies to State Court
The federal district court for the District of Vermont granted the State of Vermont’s motion to remand to state court the State’s case asserting that fossil fuel company defendants violated the Vermont Consumer Protection Act (VCPA) by engaging in deceptive acts and unfair practices regarding their products’ contributions to climate change. The court noted that its review was guided by the Second Circuit’s September 2023 decision in Connecticut v. Exxon Mobil Corp., which addressed several of the jurisdictional questions raised in this case and answered them in favor of Connecticut. In Vermont’s case, the district court first found that, as in the Connecticut case, the Grable exception to the well-pleaded complaint rule did not apply because the VCPA claims could be resolved without addressing a federal issue and because no federal issue was necessarily raised. (The well-pleaded complaint rule provides “that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.”) The district court rejected the defendants’ contentions that Vermont’s claims regarding their advertising practices necessarily raised federal issues regarding compliance with federal environmental and fuel economy standards and that Vermont’s claims also necessarily raised federal policy issues regarding governmental promotion of fossil fuels. Second, the district court rejected the federal common law of transboundary pollution or foreign affairs as a basis for the complete preemption exception to the well-pleaded complaint rule; the court found that the complaint made clear that the case was about deception and unfair business practices in Vermont, not air pollution or international treaties. The court then cited the reasoning of the Second Circuit’s Connecticut decision to reject arguments that there was federal jurisdiction under the federal-officer removal statute or the Outer Continental Shelf Lands Act. In addition, the district court found that there was no federal enclave jurisdiction, rejecting the defendants’ argument that such jurisdiction was appropriate because the complaint alleged statewide climate change harms that would encompass harms in “a few isolated federal enclaves within Vermont” such as national forest and national park lands and ports of entry. In addition, the court found that there was no diversity jurisdiction. The court, however, denied Vermont’s request for costs and fees incurred as a result of removal, finding that the defendants did not lack an objectively reasonable basis for removal. Vermont v. Exxon Mobil Corp., No. 2:21-cv-00260 (D. Vt. Feb. 6, 2024)
Delaware Trial Court Denied Interlocutory Appellate Review for Its Decision Narrowing State’s Claims Against Fossil Fuel Defendants
The Delaware trial court hearing the State of Delaware’s climate change case against fossil fuel industry defendants denied the State’s application for interlocutory review by the Delaware Supreme Court of the trial court’s January 2024 decision narrowing the scope of the State’s claims. The trial court found that although its decision had determined “substantial issues of material importance,” the “likely benefits of interlocutory review do not outweigh the inefficiency, disruption, and probable costs.” The trial court said “[r]eliance on well-established federal precedent” and application of a recent Delaware Supreme Court decision (on nuisance) did not warrant interlocutory review as of right. The court also found that its opinion did not conflict with decisions of other Delaware trial courts and that interlocutory appeal “clearly will not terminate the litigation.” Two days earlier, the court denied five defendants’ motion for reargument related to Delaware’s failure to warn claim. The court rejected arguments that the claim required Delaware to allege that each individual defendant had “specific” or “special” knowledge regarding the products’ alleged dangers or to plead specific marketing efforts to Delaware consumers. State v. BP America, Inc., No. N20C-09-097 (Del. Super. Ct. Feb. 12 and 14, 2024)
Ninth Circuit Denied Request to Stay Litigation in Juliana While Petition for Writ of Mandamus Is Pending
The Ninth Circuit Court of Appeals denied the motion by the U.S. and other federal parties for a motion to stay proceedings in Juliana v. United States while the Ninth Circuit considers the government’s petition for writ of mandamus, which asks the Ninth Circuit to order the district court to dismiss the case. The stay motion was denied without prejudice to renewal following the district court’s decision on a pending stay motion. The Ninth Circuit also found that the petition for writ of mandamus “raises issues that warrant answer” and directed the real parties in interest (i.e., the plaintiffs) to file an answer within 21 days. United States v. U.S. District Court for the District of Oregon, No. 24-684 (9th Cir. Feb. 29, 2024)
Ninth Circuit Said Challenge to 2017 Rescission of Coal Leasing Program Was Moot
In an unpublished memorandum, the Ninth Circuit Court of Appeals held that a lawsuit challenging former Secretary of the Interior Ryan Zinke’s 2017 rescission of an Obama administration moratorium on the federal coal leasing program was moot because Secretary of the Interior Deb Haaland had “revoked” the Zinke order in April 2021. The Ninth Circuit said a district court had incorrectly concluded that Secretary Haaland’s failure to reinstate the moratorium meant that the Zinke order remained in partial effect; the Ninth Circuit said any injury related to the absence of a moratorium was not fairly traceable to the revoked Zinke order. The Ninth Circuit also found that the voluntary cessation exception to mootness did not apply. Citizens for Clean Energy v. U.S. Department of the Interior, No. 22-35789 (9th Cir. Feb. 21, 2024)
D.C. Circuit Granted EPA Request for Voluntary Remand of Challenges to 2020 Decision to Retain Ozone Standards
The D.C. Circuit Court of Appeals granted the U.S. Environmental Protection Agency’s (EPA’s) request for voluntary remand of challenges to EPA’s 2020 determination to retain the existing national ambient air quality standards (NAAQS) for ozone. EPA contended, and no party objected, that remand was appropriate because EPA had initiated a full review of the ozone NAAQS that would incorporate reconsideration of the 2020 determination. Although the 2020 determination, ensuing litigation, and full review of the NAAQS do not directly implicate greenhouse gases and climate change, the nonprofit group Energy Policy Advocates filed an amicus brief in 2021 contending that the challenges to the 2020 determination were part of a coordinated “backdoor” effort by EPA and the petitioners to regulate carbon dioxide and other greenhouse gases. The group also argued that the lawsuits also were motivated by a desire to provide a basis for private plaintiffs’ arguments in climate nuisance suits against private parties that the Clean Air Act did not displace their claims. New York v. EPA, No. 21-1028 (D.C. Cir. Feb. 2, 2024)
Fifth Circuit Said Repeal of Efficiency Standards for Short-Cycle Appliances Was Arbitrary and Capricious
The Fifth Circuit Court of Appeals held that a 2022 U.S. Department of Energy (DOE) acted arbitrarily and capriciously when it repealed energy efficiency standards adopted in 2020 for dishwashers and laundry machines with shorter cycle times. As a threshold matter, the Fifth Circuit rejected the federal defendants’ argument that the states challenging the 2022 rule lacked standing. On the merits, the Fifth Circuit first found that it was unclear whether DOE had statutory authority to regulate water use in dishwashers and laundry machines and that, even if it did, the agency “failed to adequately consider the negative consequences” of repealing the 2020 standards, including the substitution effects of energy-and-water-wasting rewashing, prewashing, and handwashing,” and also failed to adequately consider the “impact of the energy conservation program on ‘performance characteristics,’” such as cycle time. The Fifth Circuit also held that DOE’s belief that the 2020 standards were legally invalid was an insufficient basis for repealing the standards and that DOE should have considered alternatives to complete elimination of standards for short-cycle appliances. Louisiana v. U.S. Department of Energy, No. 22-60146 (5th Cir. Jan. 8, 2024)
New Jersey Federal Court Dismissed Challenge to Incidental Take Authorizations for Offshore Wind Projects
The federal district court for the District of New Jersey dismissed a challenge brought by an environmental group and its president to the National Marine Fisheries Service’s incidental take/ harassment authorizations (ITAs) for offshore wind projects for lack of subject matter jurisdiction. The plaintiffs’ allegations included claims that the climate change benefits of offshore wind were overstated and that the defendants failed to recognize “the immense carbon sequestration capacity of great whales.” The court found that the plaintiffs failed to allege injury-in-fact and therefore lacked standing. The court also found that challenges to pending incidental take authorizations were not ripe because the pending ITAs were not final agency actions. In addition, the court found that any challenge to an expired ITA was moot. Save Long Beach Island v. U.S. Department of Commerce, No. 3:23-cv-01886 (D.N.J. Feb. 29, 2024)
Federal Magistrate Recommended Dismissal of Challenge to Portland Restrictions on Fossil Fuel Terminals
A magistrate judge in the federal district court for the District of Oregon recommended that the court dismiss a lawsuit challenging a City of Portland ordinance restricting construction or expansion of bulk fossil fuel terminals. The lawsuit was brought by the State of Montana, several trade groups, and a Washington-based fuel distributor. Although the magistrate recommended that the court find that the distributor had standing based on the ordinance’s alleged negative impact on property value, the magistrate concluded that the plaintiffs failed to state any claims. The magistrate found that the ordinance did not discriminate against interstate commerce, that neither the Foreign Commerce Clause nor other federal law displaced or preempted the ordinance, and that the ordinance did not violate plaintiffs’ substantive due process rights. Montana v. City of Portland, No. 3:23-cv-00219 (D. Or. Feb. 26, 2023)
One Week After Filing of Lawsuit, Department of Energy Agreed to Withdraw Emergency Request for Cryptocurrency Energy Information
On February 22, 2024, a cryptocurrency industry group and a company that conducts bitcoin mining operations at a Texas facility filed a lawsuit in the federal district court for the Western District of Texas asserting that the Energy Information Administration (EIA) and the Office of Management and Budget violated the Paperwork Reduction Act and Administrative Procedure Act when EIA issued an information request for energy information from cryptocurrency mining companies. The plaintiffs alleged that EIA based its request for emergency approval of the information collection on a “facially absurd” contention that “public harm” would otherwise result due to potential strains on the electric grid that could result from increased energy consumption arising from mining activity and a “major cold snap.” The plaintiffs alleged that the emergency information collection request “was driven by forces outside of EIA”; they emphasized an excerpt from President Biden’s Executive Order 14067, “Ensuring Responsible Development of Digital Assets,” which expressed the U.S.’s interest in ensuring that digital asset technologies operate in a way that “reduces negative climate impacts and environmental pollution.” The complaint also cited concerns raised by certain senators and House of Representatives members regarding cryptocurrency’s impacts on climate change. On February 23, the court issued a temporary restraining order (TRO) barring the defendants from collecting data and directing the defendants to sequester and not share any data already received. The court found that the plaintiffs established that irreparable injury would result without a TRO based on their allegations of nonrecoverable costs of compliance, a credible threat of prosecution for failure to comply with the information collection request, and disclosure of proprietary information. The court also found that the plaintiffs were likely to be able to show that the defendants’ support for an emergency request fell “far short of justifying such an action” and that the balance of harms favored granting a TRO. On February 26, EIA notified OMB that it was immediately discontinuing the emergency collection and would instead proceed through the Paperwork Reduction Act’s notice-and-comment procedures. On March 1, the plaintiffs and defendants filed a notice memorializing an agreement that provides that EIA will destroy any information already received or received in the future pursuant to the emergency request. In addition, EIA will publish a new notice of proposed collection of information, and the plaintiffs and a proposed intervenor (Chamber of Digital Commerce) will withdraw the request for a preliminary injunction and not pursue further relief regarding the emergency collection request. The parties asked the court to stay and administratively close the case. Texas Blockchain Council v. Department of Energy, No. 6:24-cv-00099 (W.D. Tex. Feb. 23, 2024)
Alaska Federal Court to Hear Case Challenging Cancellation of Arctic National Wildlife Refuge Lease
The federal district court for the District of Alaska concluded that the September 2023 cancellation of the plaintiff’s oil and gas leases for the Coastal Plain of the Arctic National Wildlife Refuge did not moot the case challenging the Biden administration’s 2021 moratorium on ANWR leasing program activities while supplemental environmental review was conducted. The court also rejected the plaintiff’s motion requesting that it alter or amend its August 2023 decision rejecting the plaintiffs’ challenges to the moratorium. The plaintiff had asked the court to modify the decision to “recognize that the various follow-up matters ancillary to the issuance of the leases … must be addressed by the Federal Defendants with an urgency and timeliness proportional to the statutory deadline” of December 2021 established by the Tax Cuts and Jobs Act of 2017 for issuance of the leases. On February 23, 2024, the federal district court in the District of Columbia granted federal defendants’ motion to transfer to the District of Alaska a case in which the same plaintiff challenged the September 2023 lease cancellation. The court agreed with the defendants that the District of Alaska was “the superior forum” because it would make “little sense” to adjudicate the matter in the District of Columbia, to which the plaintiff had no connection, and when the lawsuit’s subject matter was in another state where a court already had ruled on a similar dispute involving the same parties. Alaska Industrial Development & Export Authority v. Biden, No. 3:21-cv-00245 (D. Alaska Feb. 22, 2024); Alaska Industrial Development & Export Authority v. U.S. Department of the Interior, No. 1:23-cv-03126 (D.D.C. Feb. 23, 2024)
Arizona Federal Court Ordered Preparation of EIS for Transfer of Colorado River Water Rights but Found that Agency Took Hard Look at Climate Change Cumulative Impacts
The federal district court for the District of Arizona set aside the U.S. Bureau of Reclamation’s (Reclamation’s) finding of no significant impact (FONSI) for the transfer of a farm’s Colorado River water entitlement to a town miles away. The court found that the plaintiffs raised at least two “substantial questions” regarding whether the transfer would have a significant effect on the environment. One, the plaintiffs showed that the transfer could establish a precedent for future water transfers with significant effects. Two, the plaintiffs showed that the water transfer might have a cumulatively significant impact on the growth of the town, which could cause significant effects. The court therefore remanded for preparation of an environmental impact statement (EIS) under the National Environment Policy Act. The court rejected the plaintiffs’ contentions regarding other shortcomings of the environmental review, including arguments that Reclamation’s analysis of cumulative impacts in the context of climate change, the ongoing megadrought, and resulting effects on the Colorado River was inadequate. The court found that even if Reclamation was required to consider cumulative impacts of climate change and the megadrought, the agency had analyzed these impacts to the extent they were applicable to the water transfer. The court also found that the plaintiffs did not raise a substantial question regarding unknown risks of the water transfer related to the long-term drought. County of Mohave v. U.S. Bureau of Reclamation, No. 22-cv-08246 (D. Ariz. Feb. 21, 2024)
California Federal Court Allowed Some Industry Claims to Proceed Against CARB’s “In-Use Locomotive Regulation”
The federal district court for the Eastern District of California granted in part and denied in part California officials’ motion to dismiss a lawsuit challenging the California Air Resources Board’s (CARB’s) “In-Use Locomotive Regulation,” which included four primary components: (1) Spending Account requiring annual deposits for use only for certain categories of projects related to clean locomotives; (2) In-Use Operational Requirements restricting use of older locomotives starting in 2030; (3) Idling Requirements regulating function and maintenance of locomotives; and (4) Reporting and Recordkeeping Requirements for annual reports of emissions information for non-zero emissions locomotives. In addition, the regulation’s Administrative Payment Provision requires an annual payment to CARB of $175 per locomotive that operates in the state. The court found that the plaintiffs’ claims challenging the Spending Account and In-Use Operational requirements were not ripe, including a dormant Commerce Clause claim and claims that those requirements were preempted by the Interstate Commerce Commission Termination Act (ICCTA) and Clean Air Act. The court found that the plaintiffs could not show that enforcement of these requirements was “sufficiently concrete or imminent” because California could not enforce them absent approval by EPA under Clean Air Act Section 209(e)(2), which is interpreted to bar California from regulating new locomotives. The court also found that the plaintiffs failed to sufficiently allege an economic injury for their Locomotive Inspection Act preemption challenge to the Idling Requirements because they did not allege how the purportedly preempted provision would impose news costs on the plaintiffs. The court found that the plaintiffs did have standing for their ICCTA and dormant Commerce Clause challenges to the Idling Requirements. The court dismissed facial ICCTA preemption and dormant Commerce Clause challenges to the Reporting and Recordkeeping Requirements but allowed as-applied challenges to proceed. The court also found that the plaintiffs stated a dormant Commerce Clause claim challenging the Administrative Payment Provision. Association of American Railroads v. Randolph, No. 2:23-cv-01154 (E.D. Cal. Feb. 16, 2024)
After Postal Service Increased Electric Vehicle Commitment, One NEPA Lawsuit Withdrawn and Two Continue
On January 30, 2024, the federal district court for the Southern District of New York so-ordered the dismissal without prejudice of a lawsuit brought by Natural Resources Defense Council and the UAW labor union asserting that the U.S. Postal Service (USPS) failed to comply with the National Environmental Policy Act (NEPA) in connection with the Next Generation Delivery Vehicles program to replace its fleet. The plaintiffs agreed to the dismissal of the lawsuit after USPS conducted supplemental environmental review and increased the percentage of electric vehicles to be procured from 10% to 62% of the total number of vehicles to be acquired. In two other lawsuits, the plaintiffs filed supplemental complaints alleging that USPS’s supplemental review again failed to consider a reasonable range of alternatives and failed to take a hard look at the impacts of alternatives, including climate change impacts. State plaintiffs, led by California, also alleged that USPS failed to consider inconsistencies between the new 62% plan and plaintiffs’ laws and policies to reduce fossil fuel consumption and to electrify the transportation sector. California v. U.S. Postal Service, No. 3:22-cv-02583 (N.D. Cal.); CleanAirNow v. DeJoy, No. 3:22-cv-02576 (N.D. Cal.); Natural Resources Defense Council, Inc. v. DeJoy, No. 1:22-cv-03442 (S.D.N.Y. Jan. 30, 2024)
California Federal Court Said Federal Laws Did Not Preempt South Coast Air Quality Management District
The federal district court for the Central District of California ruled that neither the Clean Air Act, the Federal Aviation Administration Authorization Act (FAAAA), nor the Airline Deregulation Act (ADA) preempted the South Coast Air Quality Management District’s (SCAQMD’s) Warehouse Actions and Investments to Reduce Emissions rule (WAIRE), which applies to owners and operators of warehouses with at least 100,000 square feet of indoor floor space in a single building. An owner or operator must earn a certain number of “WAIRE Points” based on the number and types of trucks that visit a warehouse annually. WAIRE Points are earned (1) by completing certain actions on a WAIRE Menu (e.g., acquisition of zero-emission (ZE) or near-zero-emission trucks (NZE); installation of zero-emission charging or fueling infrastructure; installation and use of onsite solar panels; and installation of air filters in residences, day care facilities, hospitals or community centers); (2) by performing actions in a Custom WAIRE Plan; or (3) by paying a mitigation fee. Regarding Clean Air Act preemption, the court found that the plaintiff and intervenor-plaintiff (plaintiffs) did not meet their burden of showing that WAIRE was a “standard” that the Clean Air Act expressly preempts; the court also found that WAIRE did not indirectly regulate within the preempted field “such that it effectively mandates a specific, preempted outcome” (i.e., the purchase of ZE or NZE trucks). In addition, the court found that the plaintiffs did not meet their burden of showing that WAIRE relates to the control of emissions from new motor vehicles or new motor vehicle engines. Regarding ADA and FAAAA preemption, the court found that the plaintiffs did not show that WAIRE’s effect on air carriers’ integrated air delivery system was “more than tenuous, remove and peripheral.” The parties subsequently agreed to the dismissal of state-law claims, which related to whether SCAQMD had statutory authority for WAIRE and whether it establishes an illegal tax, to permit final judgment as to all claims. California Trucking Association v. South Coast Air Quality Management District, No. 2:21-cv-06341 (C.D. Cal. Dec. 14, 2023)
California Appellate Court Said EIR Was Not Required for Construction Debris Recycling Facility
The California Court of Appeal found that the County of San Diego should have limited its California Environmental Quality Act (CEQA) review of a construction, demolition, and inert debris recycling facility proposed for a site designated for industrial use in the County’s 2011 General Plan Update (GPU). The court concluded that the proposed facility qualified for a CEQA exemption for projects that are consistent with a GPU and do not impose significant and peculiar environmental impacts not already contemplated by the environmental impact report (EIR) prepared for the GPU. The court did not find substantial evidence to support the County’s finding that the project would result in peculiar impacts in the areas of aesthetics, noise, traffic, greenhouse gas emissions, and air quality. Regarding greenhouse gas emissions, the appellate court further found that substantial evidence did not support the County’s determination that previously adopted uniform policies and procedures would not adequately mitigate the proposed project’s impacts. The Court of Appeal directed the trial court to direct the County to set aside its decision requiring preparation of an EIR. Hilltop Group, Inc. v. County of San Diego, No. D081124 (Cal. Ct. App. Feb. 16, 2024)
D.C. Court of Appeals Affirmed Attorneys’ Fees Awards Against Climate Scientist Who Voluntarily Withdrew Defamation Action
The District of Columbia Court of Appeals affirmed the awarding of attorneys’ fees in an action brought by a climate scientist who alleged that the defendants’ publication of an article in a scientific journal criticizing the scientist’s research paper constituted defamation. The plaintiff’s paper “concluded that the U.S. power grid could inexpensively move to “100% wind, water, and solar” energy sources by 2050 without the need for “natural gas, biofuels, nuclear power, or stationary batteries.” The article at issue—which was co-authored by one of the defendants and published in a journal published by the other defendant—contended that the paper “used invalid modeling tools, contained modeling errors, and made implausible and inadequately supported assumptions.” The plaintiff voluntarily dismissed his suit after a hearing at which the trial court hinted it was likely to grant the defendants’ special motions to dismiss under D.C.’s Anti-Strategic Litigation Lawsuits Against Public Participation Act (Anti-SLAPP Act). The trial court subsequently granted the defendants’ motions for attorneys’ fees under the Anti-SLAPP Act, finding that they had prevailed in whole or in part. The Court of Appeals first concluded that the Anti-SLAPP Act permitted an award of attorneys’ fees against a plaintiff who voluntarily dismisses his suit. The court further concluded that the defendants had prevailed under either the “merits-based” approach (whether the motion to dismiss would have succeeded but for the voluntary dismissal), the “catalyst” approach (whether the motion to dismiss prompted the voluntary dismissal), or a modified catalyst approach based on a rebuttable presumption that the defendant prevailed when the special motion to dismiss precedes the voluntary dismissal. Regarding the merits-based approach, the court found that the plaintiff “has no plausible hope” of showing that the defendants made a false and defamatory statement and did so with actual malice. The court said the plaintiff had instead asked the courts “to resolve a scientific debate, and that is something we are generally neither equipped to do, nor permitted to do by the First Amendment.” The court affirmed the award of $428,723 and $75,000 to the two defendants and remanded to the trial court for a determination of whether the defendants were entitled to additional attorneys’ fees incurred for the defense of the trial court’s award. Jacobson v. Clack, No. 22-CV-0523 (D.C. Ct. App. Feb. 15, 2024)
Maryland Court Upheld Baltimore Stormwater Permits
The Maryland Appellate Court upheld the Maryland Department of the Environment’s (DOE’s) issuance of municipal separate storm sewer system (MS4) permits to Baltimore City and Baltimore County. Among other things, the court rejected environmental advocacy groups’ contention that the permits were ineffective because they failed to include “climate change related conditions.” The court noted that DOE had concluded that adequate data regarding climate change effects did not exist at the time permits were issued and that DOE had said it would update its Stormwater Design Manual and practices to account for increased precipitation when more data was reported. The court found that the inclusion of reopener clauses in the permits to allow for modification based on such new data was a “flexible, iterative approach” that complied with the MS4 legal framework. In re Blue Water Baltimore, Inc., Nos. 1426, 1803 (Md. App. Ct. Jan. 31, 2024)
San Diego Agreed to Monitor Progress Towards Greenhouse Gas Emissions Reduction Goals in Settlement to Resolve Lawsuits Challenging Climate Action Plan
Environmental groups and the City of San Diego reached an agreement to settle a lawsuit challenging the City’s 2022 Climate Action Plan and a related lawsuit challenging the growth plan for the Mira Mesa community. The settlement agreement provided that the City would take certain steps to monitor progress toward the Climate Action Plan’s greenhouse gas emissions reduction targets for 2030 and 2035 based on a model linear trajectory of annual reductions. Beginning in 2026, if the annual emissions target is not met within a 12.5% margin of error, then the City must prepare an amendment to the Climate Action Plan. The settlement agreement also set a schedule for annual reporting and established requirements for public sharing of information related to implementation of the Climate Action Plan. Climate Action Campaign v. City of San Diego, No. 37-2022-00036430 (Cal. Super. Ct. Feb. 20, 2024); Coastal Environmental Rights Foundation v. City of San Diego, No. 37-2023-00006754 (Cal. Super. Ct. Feb. 20, 2024)
Jury Found Blog Post Authors Liable for Defamation of Climate Scientist Michael Mann, Awarded $1 Million in Punitive Damages
In the climate scientist Michael Mann’s defamation case against two writers who authored blog posts characterizing Mann’s work as fraudulent and attributing misconduct to him, a jury in D.C. Superior Court found that statements made by the writers were defamatory, relied on provably false facts, and were false. For the defendant who called Mann “the Jerry Sandusky of climate science, except for instead of molesting children, he has molested and tortured data,” the jury found that the plaintiff proved that the defendant acted with reckless disregard for whether the fact was false. The jury awarded Mann $1 in compensatory damages and $1,000 in punitive damages against that defendant. The jury found that the plaintiff proved that the other defendant made the defamatory statements with knowledge of their falsity and reckless disregard for whether they were false. The statements included the defendant’s quotation of the other defendant’s comparison of Mann to Jerry Sandusky and a statement describing him as “the man behind the fraudulent climate-change ‘hockey-stick’ graph, the very ringmaster of the tree-ring circus.” The jury awarded $1 in compensatory damages and $1 million in punitive damages against this defendant. Mann v. Simberg, No. 2012 CA 008263 B (D.C. Super. Ct. Feb. 8, 2024)
Virginia Court Said Lawsuit Challenging State’s Decision to Leave RGGI Could Proceed
Southern Environmental Law Center (SELC) announced that a Virginia Circuit Court had concluded that the Association of Energy Conservation Professionals had standing to challenge Virginia’s decision to remove the state from the Regional Greenhouse Gas Initiative (RGGI). SELC reported that the court would allow two claims to move forward: (1) a challenge to Virginia agencies’ authority to remove the state from RGGI and (2) a claim that the decision was not supported with the evidence required by the Virginia Administrative Process Act. The court dismissed a third claim and said it would take under advisement the request for suspension of the state’s action while the lawsuit is pending. Association of Energy Conservation Professionals v. Virginia State Air Pollution Control Board, No. __ (Va. Cir. Ct. Feb. 5, 2024)
NEW CASES, MOTIONS, AND OTHER FILINGS
Chicago Filed Lawsuit Alleging Fossil Fuel Industry’s “Deception Campaign” Caused Climate Change Harms
The City of Chicago filed a complaint in Illinois Circuit Court alleging that fossil fuel industry defendants engaged in a “successful climate deception campaign” since at least 1965 that misled consumers and the public about the impacts of greenhouse gas emissions from fossil fuels, which “had the purpose and effect of inflating and sustaining the market for fossil fuels, which—in turn—drove up greenhouse gas emissions, accelerated global warming, and brought about devastating climate change impacts to the City of Chicago.” The complaint alleged that Chicago and its residents have spent and will continue to spend substantial sums to recover from these impacts and to protect the City from future impacts, which include more frequent and intense storms, flooding, droughts, extreme heat events, and shoreline erosion. Chicago alleged that in the absence of the defendants’ “tortious and deceptive conduct and resultant contributions to global warming,” harmful climate change effects would have been “far less extreme” and “future harmful effects would also have been far less detrimental—or would have been avoided entirely.” The complaint alleged that quantification of greenhouse gas pollution attributable to fossil fuel companies’ products allows calculation of climatic and environmental response to emissions that can be attributed to fossil fuel defendants on an individual and aggregate basis. The complaint set forth 11 causes of action: strict products liability—failure to warn; negligent products liability—failure to warn; negligence; public nuisance; private nuisance; nuisance violations of the Municipal Code of Chicago (MCC); civil conspiracy; unjust enrichment; consumer fraud—misleading, unfair, and deceptive practices in violation of the MCC (Chicago Consumer Protection Law); misrepresentations in connection with sale or advertisement of merchandise in violation of the MCC (Sale or Advertisement of Merchandise Act); and recovery of city costs of providing services in violation of the MCC (Cost Recovery Ordinance). The plaintiffs request compensatory damages; equitable relief, including abatement of the nuisances; penalties and recovery for injury or loss under the Chicago Consumer Protection Law and other MCC provisions; disgorgement of profits; costs; and pre-judgment interest. City of Chicago v. BP p.l.c., No. 2024CH01024 (Ill. Cir. Ct., filed Feb. 20, 2024)
Updates in Other State and Local Government Climate Cases Against Fossil Fuel Industry Defendants
- A California Superior Court granted a petition for coordination of the climate cases against fossil fuel companies brought by the California attorney general and local governments in California and recommended the coordination proceedings be assigned to San Francisco Superior Court. The plaintiffs and fossil fuel industry defendants disagreed as to the selection of the best court in which to coordinate the actions. Some defendants requested assignment to Contra Costa County or, alternatively, to Sacramento County. People v. Exxon Mobil Corp., No. CGC-23-609134 (Cal. Super. Ct. Feb. 5, 2024)
- Fossil fuel companies removed cases brought by two Tribes to federal court in Washington. The companies contended that the cases were removable because they were brought by Tribes “for alleged damage to tribal lands and natural resources, including those held in trust by the United States, and thus invoke[] … federal question jurisdiction” and also because they implicate federal jurisdiction by seeking “to recoup health care costs that have allegedly been incurred in response to climate change” by the Tribes. Shoalwater Bay Indian Tribe v. Exxon Mobil Corp., No. 2:24-cv-00158 (W.D. Wash. Feb. 6, 2024); Makah Indian Tribe v. Exxon Mobil Corp., No. 2:24-cv-00157 (W.D. Wash. Feb. 6, 2024)
- A Colorado trial court held oral arguments on February 1, 2024 on motions to dismiss Boulder County’s case. Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.), Inc., No. 2018CV030349 (Colo. Dist. Ct. Feb. 1, 2024)
New York State Sued Beef Producer for Allegedly Misleading Claims Regarding Net-Zero Commitment
New York State Attorney General Letitia James filed a complaint in New York Supreme Court against JBS USA Food Company and JBS USA Food Company Holdings (JBS USA) alleging that the defendants—the “largest producer of beef products in the world”—made unsubstantiated and misleading environmental marketing claims about their commitment to reducing greenhouse gas emissions in violation of New York State’s consumer protection statutes. The complaint alleged that beef production contributes significantly to climate change through emissions of greenhouse gases and through land-use changes that reduce or eliminate carbon sinks, and that the top five meat and dairy corporations are responsible for more annual greenhouse gas emissions than ExxonMobil, Shell, or BP, individually, with JBS USA and its parents, subsidiaries, and affiliates (the JBS Group) being the top contributor. The complaint alleged that JBS USA knows that demand for its products will decrease if consumers view them as unsustainable and harmful to the environment and that the JBS Group had directed representations regarding its sustainability to New York consumers, including representations regarding the “Net Zero by 2040” commitment it made in 2021. New York alleged that self-regulating advertising industry groups had found this claim to be misleading. New York also contended that the JBS Group’s greenhouse gas emissions calculations have not accounted for Scope 3 emissions resulting from Amazon deforestation and other land use changes in its supply chain and that the Net Zero by 2040 commitment also was misleading based on the JBS Group’s plans to increase demand for its products. The complaint requested that the court enjoin JBS USA from violating the consumer protection statutes; order the defendants to disgorge profits traceable to these violations; grant civil penalties; perform independent audits of consumer-facing publications; and pay the State’s costs and attorneys’ fees. People v. JBS USA Food Co., No. __ (N.Y. Sup. Ct., filed Feb. 28, 2024)
Nonprofit Groups Challenged EPA Approval of Louisiana Permitting Authority for Geologic Carbon Sequestration Facilities
Two environmental organizations and a utility consumer advocacy group filed a petition for review in the Fifth Circuit Court of Appeals challenging the U.S. Environmental Protection Agency’s (EPA’s) final rule approving the State of Louisiana’s application to revise its underground injection control (UIC) program to include Class VI injection well primary enforcement responsibility (primacy). The final rule allows the Louisiana Department of Natural Resources to issue UIC permits for geologic carbon sequestration facilities and ensure compliance of Class VI wells under the UIC program. Deep South Center for Environmental Justice v. EPA, No. 24-60084 (5th Cir., filed Feb. 20, 2024)
Industry and Environmental Groups Challenged Outer Continental Shelf Oil and Gas Leasing Program for 2024-2029
Environmental groups and American Petroleum Institute filed separate petitions for review in the D.C. Circuit Court of Appeals challenging the Bureau of Ocean Energy Management’s approval of the 2024-2029 National Outer Continental Shelf Oil and Gas Leasing Program. The approved program scheduled three Gulf of Mexico oil and gas lease sales over the five years of the program. Healthy Gulf v. U.S. Department of the Interior, No. 24-1024 (D.C. Cir., filed Feb. 12, 2024); American Petroleum Institute v. Department of the Interior, No. 24-1023 (D.C. Cir., filed Feb. 12, 2024)
Lawsuit Said Forest Service Violated NEPA by Failing to Consider Annual “Timber Targets” Impact on Carbon Storage
A lawsuit filed in federal district court in the District of Columbia challenged the U.S. Forest Service’s alleged failure to account for the aggregate carbon effects of actions taken each year to fulfill annual “timber targets,” which the plaintiffs described as “mandatory performance metrics” that “drive logging levels on the National Forest System.” The plaintiffs—two environmental groups and a resident of Missouri—alleged that the failure to consider the impacts of national, regional, and unit-specific timber targets violated the National Environmental Policy Act (NEPA). They also alleged that project-level analyses for projects in Sumter National Forest, Nantahala National Forest, and Mark Twain National Forest violated NEPA and asked the court to enjoin the Forest Service from proceeding with the remaining commercial timber-harvest portions of these projects until it complies with NEPA. They also requested that the court enjoin the Forest Service from offering additional timber sales to fulfill fiscal year 2024 timber targets for Regions 8 and 9. The complaint alleged that failure to consider cumulative carbon emissions disproportionately affects forests in the East and the South because the volumetric timber targets incentivized logging in the most carbon-dense forests. Chattooga Conservancy v. U.S. Department of Agriculture, No. 1:24-cv-00518 (D.D.C., filed Feb. 26, 2024)
Environmental Groups Challenged Logging Projects in Wildfire Areas in California
Sierra Club and two other environmental organizations challenged the U.S. Forest Service’s authorizations of two logging and vegetation management projects in the footprints of two recent fires in the Giant Sequoia National Monument and the Sequoia National Forest. The complaint alleged that, contrary to the Forest Service’s assertion, these projects’ proposed removal of trees from thousands of acres was “not clearly needed for ecological restoration and maintenance.” The plaintiffs contended that environmental impact statements should have been prepared and that the analyses in the environmental assessments and findings of no significant impact were insufficient, including because they failed to adequately consider impacts on carbon storage. They also asserted that the Forest Service failed to comply with the National Forest Management Act. Sierra Club v. U.S. Forest Service, No. 3:24-cv-01080 (N.D. Cal., filed Feb. 22, 2024)
Lawsuit Challenged Failure to Protect Climate Change-Threatened Crayfish Under Endangered Species Act
Center for Biological Diversity filed a lawsuit in the federal district court for the District of Columbia challenging the U.S. Fish and Wildlife Service’s (FWS’s) decision not to list the Black Creek crayfish as endangered or threatened under the Endangered Species Act. The complaint alleged that the Black Creek crayfish, which lives only in the Lower St. Johns River Basin in northeastern Florida, is “among the most threatened aquatic invertebrates in the southeastern United States” and is “highly imperiled” due to threats including impacts of climate change such as sea level rise and severe weather events. The complaint said the FWS “discounted the threat of climate change-induced weather events” despite finding that climate change had already increased water temperatures in streams to temperatures surpassing the crayfish’s temperature tolerances. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 1:24-cv-00457 (D.D.C., filed Feb. 16, 2024)
Federal Lawsuit Challenged Adoption of Changes to Tahoe Regional Plan
A lawsuit filed in the federal district court for the Eastern District of California challenged the Tahoe Regional Planning Agency’s (TRPA’s) adoption of amendments to the Regional Plan and TRPA Code of Ordinances that the plaintiff alleged would accelerate high-density development with potentially significant impacts that had not been fully evaluated. The plaintiff asserted that TRPA failed to comply with the Tahoe Regional Planning Compact, the Regional Plan, and related regulations, including by failing to prepare a supplemental environmental impact statement (EIS) to consider “substantial changes in the circumstances and underlying scientific data regarding the Tahoe Basin environment” since an EIS was approved in 2012 for a Regional Plan Update. Those changes included “climate change and increased wildfire risk and attendant impacts to water temperature and quality, air pollution, and public safety.” Mountain Area Preservation Foundation v. Tahoe Regional Planning Agency, No. 2:24-cv-00441 (E.D. Cal., filed Feb. 9, 2024)
Montana Coal Mine Owner Asked Federal Court to Set Schedule for NEPA Review
A company that owns and operates an underground coal mine in Montana filed a lawsuit against federal defendants alleging that they had failed to act within NEPA’s statutory and regulatory deadlines to complete an EIS for a mining plan for federal coal in a third amendment to the company’s mining permit. The Office of Surface Mining Reclamation and Enforcement (OSMRE) determined in 2022 that an EIS would be required after the Ninth Circuit ruled in an earlier case that OSMRE had not adequately explained in an environmental assessment why it determined that the climate impacts of a 2018 mining plan would not be significant. The company alleged that OSMRE now projected that it will not complete the EIS until three and a half years after determining an EIS was required (past the two-year statutory deadline). The company alleged that the delay has caused substantial disruption to its operations and asked the court to set a schedule and deadline for OSMRE to act in compliance with the NEPA deadline. Signal Peak Energy, LLC v. Haaland, No. 1:24-cv-00366 (D.D.C., filed Feb. 7, 2024)
FOIA Lawsuit Sought to Compel Disclosure of Agency Records Regarding Approval of “Climate Friendly” Label for Beef Products
Environmental Working Group (EWG) filed a Freedom of Information Act (FOIA) lawsuit to compel disclosure of Food Safety and Inspection Service (FSIS) records concerning the decision to allow Tyson Foods, Inc., “one of the largest beef producers in the United States,” to market “industrially produced” beef as “climate friendly.” The complaint alleged that the failure to release documents “deprives consumers of information urgently needed to assess Tyson’s climate claims—and the government’s goal in approving them.” EWG alleged that FSIS had produced reports that redacted all information concerning greenhouse gas emissions in Tyson’s supply chain, all instances in which Tyson presented or applied its greenhouse gas emissions accounting methodology, and all explanations concerning Tyson’s ability to achieve greenhouse gas emissions reductions. FSIS cited FOIA’s exemption for protecting “commercial or financial information obtained from a person that is privileged or confidential” as the basis for these redactions. EWG asserted that the defendants failed to meet their burden of establishing that the exemption applied. Environmental Working Group v. Food Safety & Inspection Service, No. 1:23-cv-03806 (D.D.C., filed Dec. 22, 2023)
Colorado Landowners Filed Class Action to Hold Defendants Liable for Abandonment of Oil and Gas Wells
A class action complaint filed in Colorado District Court by Colorado landowners alleged that the defendants “conspired to avoid millions of dollars of oil and gas well asset retirement obligations by fraudulently transferring hundreds of defunct and uneconomic oil and gas wells to a shell company, which then filed bankruptcy.” The plaintiffs sought to hold the defendants accountable for obligations to plug the wells on the plaintiffs’ properties and reclaim and remediate surface properties. They also sought to hold the defendants liable for “ongoing torts committed daily by virtue of the unplugged, defunct oil and gas wells and related equipment” left on the plaintiffs’ land. Among the alleged harms of unplugged wells were methane emissions. The complaint asserted claims of trespass, violation of the Colorado Uniform Fraudulent Transfer Act, civil conspiracy to commit trespass, civil conspiracy to commit fraudulent transfer, unjust enrichment, aiding and abetting trespass, and negligence. McCormick v. HRM Resources, LLC, No. 2024CV30302 (Colo. Dist. Ct., filed Feb. 22, 2024)
HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART
FEATURED CASE
New Zealand: Māori Leader’s Suit Against Seven Largest Greenhouse Gas Emitters Allowed to Go to Trial
Michael Smith brought tort claims against New Zealand’s seven largest greenhouse gas (GHG) emitters, collectively responsible for one-third of all New Zealand’s GHGs. He argued their activities amount to torts of public nuisance, negligence, and a novel climate duty. Smith further argued that these emissions affect him personally. As a Māori leader with an interest in customary land, Smith argued that the defendants’ actions would harm him through impacts related to rising sea levels, loss of sites of cultural and spiritual significance, damage to fisheries, and adverse health impacts. Smith asked the Court to issue declarations against the defendants, and to require them to reduce emissions. Notably, Smith did not seek damages.
Two of Smith’s arguments were struck out by the trial court, though the third claim—the novel climate duty—was allowed to go to trial. New Zealand’s Court of Appeal, however, struck out all three claims, meaning that Smith would not receive his day in court. In this most recent ruling, the Supreme Court unanimously reversed that decision. All three of Smith’s claims will now proceed to what may be the first full climate tort claim in a common law jurisdiction.
In February 2024, the Supreme Court released its strike out decision. Rather than ruling on the merits of Smith’s argument, the Court considered whether the claims should be struck out before they even reached trial. Under New Zealand law, such arguments should be struck out only if they “disclose[] no reasonably arguable cause of action.” This is a high threshold, and surviving a strike out challenge is no guarantee of success at trial. The decision ultimately concerns whether Smith’s main claim in public nuisance amounts to a “reasonably arguable cause of action.” The Court clarified that a person is liable in public nuisance where they either (a) do an act not warranted by law, or (b) omit to discharge a legal duty; and further, where “the effect of the action or omission is to endanger the life, health, property or comfort of the public or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.” In other words, a public nuisance is something that endangers public interests or public rights.
First, the Court analyzed whether Smith had plausibly identified public rights that were being interfered with. The Court found that he had—the impacts of climate change would indeed engage rights that fit within the categories identified in existing case law. Secondly, the Court affirmed the appellate court’s finding that public nuisance need not involve otherwise illegal activity. In other words, the fact that the defendants’ GHG emissions were not illegal was not a basis for striking out the claim. Third, the court considered the “special damage” rule. This is a standing rule which requires that public nuisance claims only be brought by plaintiffs who are harmed in a way that is different from the general public. The Court queried whether this rule should remain part of the law; and even if it did, Smith’s material and cultural interests as a Māori coastal landowner were at least plausibly “special” enough to meet the rule’s requirements.
Finally, the Court considered causation. Demonstrating a specific causal chain between a defendant’s emissions and the plaintiff’s harm is extremely challenging. No single emitter is the cause of any person’s harm. Instead, any emitter’s GHG emissions mix with the emissions of millions of others, contributing to a global problem. How does one differentiate the defendants’ actions from those of any other, particularly given New Zealand’s globally small (though per capita large) contribution to GHG emissions?
The Court found that Smith had done enough for these questions to proceed to trial. Notably, the Supreme Court found that the causation problems presented by Smith’s claims were fundamentally similar to other public nuisances involving multiple contributors, such as Industrial Revolution-era air and water pollution cases. “Climate change,” the Court concluded, “engages comparable complexities, albeit at a quantum leap scale of enlargement.” “Cumulative causation” problems climate change presents should at least receive “evidence and policy analysis.” They should proceed to a full trial: “the common law must develop, if at all, in the fertile fields of trial, not on the barren rocks of a strike out application.”
Having found that Smith had done enough to show a reasonable public nuisance case, the Court permitted the two remaining causes of action—negligence and the proposed novel duty—to also progress to trial. The Court also rejected arguments that the common law claims were displaced by New Zealand’s statutory regime for climate torts. (Smith v. Fonterra, High Court of New Zealand, New Zealand)
DECISIONS & SETTLEMENTS
United Kingdom: Court Allowed Oil and Gas Exploration to Go Forward Despite Concerns from Local Government
In June 2022, the UK government granted an exploratory planning permission for UK Oil & Gas to explore for oil and gas near the village of Dunsfold in Surrey, close to an Area of Outstanding Natural Beauty (AONB). This came after Surrey County Council had refused the scheme, with the government thereby overturning the Council’s decision. The claimants are now challenging the government’s decision to grant the planning permission. In July 2023, the High Court dismissed the challenge. On January 9, 2024, it was reported that the Court of Appeal had refused the claimants permission to appeal, bringing their challenge to an end. (Protect Dunsfold Ltd v Secretary of State for Levelling Up, Housing and Communities; Waverley Borough Council v SSLUHC, High Court of Justice, United Kingdom)
United Kingdom: Court Rejected Claim that Oil and Gas Company Needed to Make Financial Disclosures About Climate-Related Risks
Ithaca Energy PLC is one of the largest independent oil and gas producers in the UK North Sea, with assets including the Cambo and Rosebank fields. In 2022, it sought and was ultimately granted listing on the London Stock Exchange. As part of that process, Ithaca submitted a “prospectus” for approval by the Financial Conduct Authority (FCA), the UK’s financial regulator. The FCA may only approve a prospectus if it satisfies the requirements of European Union Regulation 2017/1129. This Regulation remains UK law post-Brexit by virtue of Part 6 of the Financial Services and Markets Act 2000. The Regulation, aimed at investor protection, requires companies to disclose certain specific and material risks they face. The FCA approved Ithaca’s prospectus. In February 2023, ClientEarth filed a claim arguing that the FCA acted unlawfully by approving the prospectus because the prospectus failed to describe climate change-related risks adequately.
In May 2023, the High Court refused permission for the claim to proceed to trial. It made this decision “on the papers.” ClientEarth renewed its application, resulting in a permission hearing. In December 2023, following that hearing, the High Court gave judgment. While delay in bringing the claim was not a good reason for refusing permission (judgment paragraphs 4 to 6), and while ClientEarth had standing (paragraph 7), the grounds were not arguable so permission was denied.
The FCA had not arguably breached the Regulation. The approval of the prospectus could only be challenged on public law grounds. The Regulation’s requirements were not hard-edged, and determining whether they were met required evaluative judgment, which the court would only interfere with if irrational. Here, the FCA’s interpretation of the Regulation was plainly correct. While the Regulation required disclosure of those risk factors that were material, it did not require the issuer to disclose its assessment of risk and materiality/specificity. The prospectus plainly did address risks to Ithaca’s business and securities arising out of climate change factors, associated regulatory measures and changes in consumer use. The FCA considered that the risk factors were adequately described, and there was no arguable error in that decision. (Paragraphs 16 to 26).
Nor was it arguably irrational for the FCA to have concluded, pursuant to the Regulation, that the prospectus contained the necessary information material to an investor for making an informed assessment of Ithaca’s financial position and prospects. ClientEarth, relying on FCA guidance on climate change and other ESG-related matters, argued the prospectus did not adequately deal with the potential impacts of the Paris Agreement on Ithaca’s business, were it to be fully implemented. The court held, however, that this ground had “not come close” to demonstrating that the FCA had acted irrationally. (Paragraphs 27 to 29.)
The court also held that the claim was not caught by the Aarhus Convention. The relevant provisions of the Act and the Regulations were not provisions of national law related to the environment. As to the nature of the contraventions alleged, there was not a sufficiently close connection to the environmental factors regulated by the Aarhus Convention, and even if the claim succeeded, it would not have significant environmental benefit. ClientEarth did not, therefore, benefit from the limits on costs recoverable between parties in Aarhus claims. (Paragraphs 30 to 47.) (ClientEarth v. Financial Conduct Authority (Ithaca Energy plc listing on London Stock Exchange), High Court of Justice, United Kingdom)
Turkey: Climate Change Activists’ Suit Regarding Climate Inaction Rejected
Three young climate activists in Turkey brought a new case to the Council of State on May 8, 2023. Turkey submitted the country’s “Updated First NDC” to the UNFCCC Secretariat on April 13, 2023. The NDC states that “Turkey confirms to reduce its greenhouse gas (GHG) emissions by 41% through 2030 (695 Mt CO2 eq in year 2030) compared to the Business as Usual (BAU) scenario given in Turkey’s first NDC (also INDC) considering 2012 as the base year (reference year). Turkey’s updated first NDC is economy-wide and includes comprehensive mitigation and adaptation actions as well as consideration of means of implementation. Turkey intends to peak its emissions at the latest in the year 2038.”
Alleging that these goals are not sufficient, the Claimants applied to the Council of State and filed a lawsuit against President Recep Tayyip Erdoğan and the Ministry of Environment, Urbanization and Climate Change, requesting the annulment of the NDC. The Claimants asserted that the updated NDC submitted by Turkey is “climate inaction rather than climate action.” Underlining the lack of a transparent process in the preparation of the NDC, they demanded the annulment and renewal of Turkey’s unscientific, ineffective, and inadequate climate target.
Declaring that holding climate change at 1.5 degrees is a human right, the Claimants state that Turkey’s decision to increase greenhouse gas emissions, which is incompatible with the Paris Climate Agreement’s goal of holding climate change at 1.5 degrees, violates their human rights. The progress of the climate crisis violates the right to live, the right to intergenerational equality, the right to health, the right to live in a healthy and balanced environment, and many others which were protected by the Turkish Constitution, the United Nations Convention on the Rights of the Child, and the European Convention on Human Rights.
The case was rejected by the Council of State without examination. The high court of the Council of State did not notice the Presidency or the Ministry and did not ask for an answer about the claims in the case.
The cause for rejection was stated as follows: “The NDC, which was the subject of the claim, is a document concerning the commitments which were included in the Paris Climate Agreement and is a part and within the scope of the agreement. The NDC, alone, does not affect the national legal order. It’s only within the extent of a declaration of a pledge to prepare national legal regulations and therefore is not an administrative action. Consequently, it can’t be made a subject to an annulment of an administrative action case.” (A.S. & S.A. & E.N.B v. Presidency of Türkiye & The Ministry of Environment, Urbanization and Climate Change, Council of State, Turkey)
Brazil: Court Denied Injunction in Groups’ Challenge to Auction of Oil Exploration Blocks on Indigenous Land
On December 12, 2023, the NGO Instituto Arayara de Educação e Cultura para a Sustentabilidade, the Articulation of Indigenous Peoples of Brazil (APIB) and the Rio dos Pardos Indigenous Land Kupli Village filed a public civil action (environmental class-action) against the National Agency for Petroleum, Natural Gas and Biofuels (ANP), Brazil’s Federal Environment Agency (IBAMA), and the Federal Government. This lawsuit is part of a set of six environmental class-actions filed against the 4th Bid Cycle for oil exploration blocks. The aim is to challenge the auction of oil exploration blocks held through the 4th Cycle. The plaintiffs argue that the inclusion of a set of blocks located in the Paraná and Amazonas Basins is illegal, as they overlap with areas of influence or restriction of 23 indigenous lands, and there was no prior, free, and informed consultation process. They claim this is a case of environmental racism, since the proximity of the exploration blocks to indigenous lands poses risks to health, the environment, and the use of the territory by the peoples who live there. They state that the climate crisis scenario requires an energy transition towards clean energies and a reduction in GHG emissions, which is incompatible with the expansion of oil exploration. Furthermore, they affirm that indigenous lands are essential for combating this crisis, as they are barriers against deforestation and forest degradation and their inhabitants are the main guardians of the environment. As a preliminary injunction, the plaintiffs requested the suspension of the offer of the contested exploration blocks in the 4th Bid Cycle, until the protection of indigenous rights is observed. On a definitive basis, they request that the contested blocks be excluded from the Bid Cycle until the affected indigenous rights are consulted.
On December 19, 2023, the court rejected the request for an injunction and partially rejected the initial petition regarding the blocks located in the Paraná Basin, as it considered that they did not fall within its jurisdiction. The court ruled that there was no longer any procedural interest in challenging some of the exploration blocks since, when the auction took place, only two blocks (AM-T-107 and AM-T-133) were auctioned off, and the proceedings should continue only in relation to them. Also, Atem Participações S.A. was included as a necessary co-litigant, as it was the bidder for the exploration blocks. This preliminary injunction does not mention climate change. (Instituto Arayara, APIB and Rio dos Pardos Indigenous Land Kupli Village vs. ANP, IBAMA, Federal Government and others, Amazonas’s Federal Court, Brazil)
Colombia: Constitutional Court Admits Lawsuit Calling for Climate Change and Human Rights Protections to Environmental Impact Assessments
On July 24, 2023, a group of citizen members of two NGOs (Dejusticia and Ilex Acción Jurídica) filed a lawsuit against article 57 of Law 99 of 1993. The article establishes the definition and criteria of environmental impact assessments (EIAs) in Colombia, which includes biotic, abiotic, and socioeconomic elements. Plaintiffs argue that as it stands, this norm does not abide by the constitutional and international human rights standards, given the lack of consideration of climate change and human rights. Plaintiffs assert that even though climate change-related standards only appeared after the law was issued, failing to update the interpretation of this legal provision derives from unconstitutional restrictions and interpretation issues that prevent EIAs from complying with international commitments that have been ratified by Colombia and are part of the constitutional bloc.
The plaintiffs are not asking the Court to declare the unconstitutionality of the article since this would create a legal vacuum that could eventually result in more significant violations of constitutional rights. Instead, plaintiffs ask the Court to order that the provision should be interpreted as to include climate change and human rights protection as part of the criteria to be considered when conducting an EIA. In so doing, the legal provision is updated to comply with the currently admissible constitutional standard, while its interpretation is clarified, avoiding unconstitutional applications.
The plaintiffs’ arguments are twofold. First, article 57 violates articles 2, 79, 80, and 93.1 of the Colombian Constitution and articles 1.1 and 2 of the American Convention on Human Rights by failing to include impacts associated with climate change in the EIA criteria. Second, article 57 violates articles 7, 20, 74, 79, 80, and 334 of the Colombian Constitution, as well as articles 4.1, 5.1, and 13 of the American Convention on Human Rights, by failing to include human rights violations in the EIA criteria. Plaintiffs claim that human rights and the environment are interconnected, which should be reflected in the laws governing EIAs.
On January 12, 2024, the Constitutional Court declared the admissibility of the lawsuit, but only regarding the first argument supported in the alleged violation of articles 79 and 80 of the Colombian Constitution. The arguments related to the violation of the legal provisions of the American Convention on Human Rights were dismissed. The Court also ordered several governmental authorities, including the Ministry of Environment and Sustainable Development, as well as NGOs such as Greenpeace Colombia, the Colombian Association of Oil and Gas, and others to provide written comments on the impacts of climate change in the interpretation of the right to a healthy environment and article 57 of Law 99 of 1993. (Challenging Environmental Impact Assessment law for failing to consider climate change, Constitutional Court, Colombia)