May 2022 Updates to the Climate Case Charts
Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts. If you know of any cases we have missed, please email us at [email protected].
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #158:
FEATURED CASES
Fourth Circuit Affirmed Order Remanding Baltimore’s Climate Case to State Court
For a second time, the Fourth Circuit Court of Appeals ruled that the City of Baltimore’s lawsuit seeking to hold oil and gas companies liable for climate change harms should proceed in state court. In its first decision in 2020, the Fourth Circuit concluded that it could only address whether the case had been properly removed under the federal-officer removal statute and found that the case had not been properly removed. The Supreme Court vacated that decision in 2021, holding that federal appellate courts could consider all grounds for removal when federal-officer removal is one of the asserted grounds for removal. In this second decision, the Fourth Circuit again rejected federal-officer removal as a basis for subject matter jurisdiction based on its earlier analysis and also rejected the seven other grounds for removal asserted by the oil and gas companies. First, the Fourth Circuit rejected the contention that Baltimore’s claims were necessarily governed by federal common law, finding that the well-pleaded complaint rule would bar removal because Baltimore’s complaint did not expressly invoke federal common law and also that it was not appropriate to create federal common law for the issues raised by the complaint. The court found that even if control of interstate pollution, energy independence, and multilateral treaties qualified as “uniquely federal interests” that could justify creation of federal common law, the companies failed to establish a significant conflict between state-law claims and the federal interests. In addition, the Fourth Circuit concluded that removal based on federal common law would not be proper where any previously existing federal common law had been displaced by the Clean Air Act and Clean Water Act. Second, the Fourth Circuit found that the companies failed to establish Grable jurisdiction because Baltimore’s complaint did not “necessarily raise” any of the federal issues identified by the companies, including balancing of the costs and benefits of fossil fuel extraction or federal duties to disclose. The court also found that the companies “wrongly” relied on the foreign-affairs doctrine in the Grable context as a basis for federal jurisdiction. Third, the Fourth Circuit held that the Clean Air Act did not completely preempt Baltimore’s state-law claims. Fourth, the court rejected the companies’ argument that their operations within federal enclaves conferred federal jurisdiction. The court noted that all of Baltimore’s alleged harms were pleaded “within the confines and boundaries of Baltimore City” and specifically to non-federal lands. Fifth, the Fourth Circuit found no jurisdiction under the Outer Continental Shelf Lands Act, holding that the companies did not demonstrate the required but-for connection between Baltimore’s claims and the companies’ exploration and production of fossil fuels on the Outer Continental Shelf. Sixth, the Fourth Circuit concluded that the bankruptcy removal statute did not provide grounds for removal. The court found both that the defendants failed to show that Baltimore’s lawsuit had a “close nexus” or was “related” to any bankruptcy involving predecessors, subsidiaries, or affiliates of the defendants and also that an exception to bankruptcy removal was applicable because Baltimore was a governmental unit exercising its police power. Seventh, the Fourth Circuit rejected admiralty jurisdiction as a basis for removal, finding that the defendants did not show how their floating rigs and platforms qualified as “vessels” for the “location test” of admiralty jurisdiction. Mayor & City Council of Baltimore v. BP p.l.c., No. 19-1644 (4th Cir. Apr. 7, 2022)
Ninth Circuit Said California Localities’ Climate Cases Should Return to State Court
The Ninth Circuit also affirmed, for a second time, a district order remanding to state court climate lawsuits brought by California local governments against fossil fuel companies. The Ninth Circuit previously affirmed the remand order in 2020 but only reviewed the propriety of removal under the federal-officer removal statute. After the Supreme Court ruled in the Baltimore case that the scope of appellate review included all grounds for removal when one of the grounds is federal-officer removal, the Ninth Circuit in this second decision reviewed the fossil fuel companies’ other bases for removal and rejected their “broad interpretations of removal jurisdiction,” even in a case where the plaintiffs “raise novel and sweeping causes of action.” First, the Ninth Circuit applied the same analysis that it used in City of Oakland v. BP p.l.c. and found that the companies did not establish prerequisites for the Grable exception to the well-pleaded complaint rule for cases that raise a substantial federal issue. Second, the Ninth Circuit held, as it had in City of Oakland, that the Clean Air Act did not completely preempt the plaintiffs’ state-law claims. Third, the Ninth Circuit concluded the connection between the defendants’ conduct on federal enclaves (such as a naval petroleum reserve and naval installations) and the plaintiffs’ alleged injuries was “too attenuated and remote” to be governed by federal law applicable to federal enclaves. Fourth, the Ninth Circuit rejected the Outer Continental Shelf Lands Act (OCSLA) as a basis for jurisdiction. The Ninth Circuit noted that other circuit courts, including the Fourth Circuit (see the Baltimore opinion above), required “only a ‘but-for’ connection between operations on the outer Continental Shelf and a plaintiff’s alleged injuries,” but the Ninth Circuit concluded that jurisdiction under OCSLA was governed by a limiting principle consistent with federal enclave jurisdiction and required that claims “arise from actions or injuries occurring on the outer Continental Shelf.” The Ninth Circuit found that the connections between the defendant companies’ operations on the outer Continental Shelf and the plaintiffs’ claims was “too attenuated” to provide a basis for jurisdiction. Fifth, the Ninth Circuit found that the companies did not establish that they were “acting under” a federal officer in connection with three agreements with the federal government and therefore did not satisfy requirements for removal under the federal-officer removal statute. Sixth, the Ninth Circuit found that bankruptcy jurisdiction did not apply because there was not a “close nexus” between the plaintiffs’ complaints and the coal company Peabody Energy’s bankruptcy or Texaco, Inc.’s bankruptcy. Seventh, the Ninth Circuit held that admiralty jurisdiction did not provide a basis for removal because pursuant to the “saving to suitors” clause of the admiralty jurisdiction statute, maritime claims brought in state court require an independent basis for federal jurisdiction. County of San Mateo v. Chevron Corp., No. 18-15499 (9th Cir. Apr. 19, 2022)
DECISIONS AND SETTLEMENTS
Fifth Circuit Denied Rehearing on Stay of Preliminary Injunction Barring Use of Social Cost of Greenhouse Gases; States Sought Relief from Supreme Court
On April 14, 2022, the Fifth Circuit Court of Appeals denied a petition for rehearing en banc of its order staying a district court order that enjoined federal agencies from relying on the work product of the Interagency Working Group on Social Cost of Greenhouse Gases (IWG) and from using any social cost of greenhouse gases (SC-GHG) estimates based on the global effects of greenhouse gases. The Fifth Circuit had concluded that the states were unlikely to succeed on the merits of their lawsuit because they lacked standing. On April 27, the states submitted an application to vacate the stay to Justice Alito. They argued that the Fifth Circuit’s stay order allowed “an agency created out of whole cloth issue what might be the most significant rule in American history” without statutory authority, adherence to notice-and-comment rulemaking procedures, or pre-enforcement judicial review, and the states would suffer irreparable harm because use of the IWG’s SC-GHG estimates would “increase States’ energy costs, decrease their tax revenues, compound their burdens in cooperative federalism programs, threaten their coastline restoration and protection projects, divest them of administrative process and consultation rights, and impose economic harms on their citizens that States have a parens patriae right to protect.” Justice Alito requested that the federal government respond to the application by May 9. Louisiana v. Biden, No. 22-30087 (5th Cir. Apr. 14, 2022), No. 21A658 (U.S. Apr. 27, 2022)
Supreme Court Declined to Review D.C. Circuit Decision Vacating St. Louis Pipeline Authorization
The U.S. Supreme Court denied a gas utility and natural gas pipeline company’s petition for writ of certiorari seeking review of a D.C. Circuit order that vacated the Federal Energy Regulatory Commission’s authorization of a natural gas pipeline in the St. Louis region. The petition presented the question of “whether remand without vacatur is the appropriate remedy where the record indicates that an agency’s inadequately reasoned decision could be corrected on remand and vacatur of the decision could result in serious, and potentially life-threatening, disruptive consequences.” Spire Missouri Inc. v. Environmental Defense Fund, No. 21-848 (U.S. Apr. 18, 2022)
Center for Biological Diversity and Fish and Wildlife Service Agreed to Timelines for Endangered Species Act Decision-Making, Including for Climate-Threatened Species
The Center for Biological Diversity and the U.S. Fish and Wildlife Service (FWS) entered into settlement agreements to resolve claims that the FWS violated the Endangered Species Act by failing to complete listing determinations or to designate critical habitat for listed species. The species addressed in the litigation and in the settlements included species that the Center for Biological Diversity alleged were threatened by climate change, including the monarch butterfly, the San Francisco Bay-Delta population of the longfin smelt, the Bethany Beach firefly, the Las Vegas bearpoppy, and the Mojave poppy bee. The settlements provided for the dismissal with prejudice of claims with respect to species for which the FWS had taken action since the lawsuits were filed. For other species, the settlements set deadlines for 12-month findings on the listings of species or proposed determinations concerning critical habitat. Center for Biological Diversity v. Haaland, No. 1:20-cv-00573 (D.D.C. Apr. 26, 2022); Center for Biological Diversity v. Haaland, No. 1:21-cv-00884 (D.D.C. Apr. 26, 2022)
EPA and Biofuel Trade Association Agreed to Timeframe for Establishing Renewable Fuel Obligations
The federal district court for the District of Columbia entered a consent decree pursuant to which the U.S. Environmental Protection Agency (EPA) committed to sign final rules by June 3, 2022 determining renewable fuel obligations for the 2021 and 2022 calendar years. Plaintiff Growth Energy, a biofuel trade association, alleged in its complaint that EPA “repeatedly failed” to meet the November 30 deadline for promulgating annual Renewable Fuel Standard regulations and that its members suffered irreparable injuries as a result of EPA’s failures to comply with the statutory deadlines. The consent decree indicated that EPA intended to complete its reconsideration of 2020 renewable fuel obligations concurrently with establishment of the 2021 and 2022 obligations. On April 29, Growth Energy filed a new lawsuit to compel EPA to promulgate the 2023 renewable fuel obligations. Growth Energy v. Regan, No. 1:22-cv-00347 (D.D.C. Apr. 22, 2022); Growth Energy v. Regan, No. 1:22-cv-01191 (D.D.C., filed Apr. 29, 2022)
Louisiana Federal Court Declined to Consolidate Trade Groups’ Challenge to Leasing Moratorium with States’ Ongoing Lawsuit
On April 18, 2022, the federal district court for the Western District of Louisiana denied a motion by the American Petroleum Institute and other oil and gas trade associations to consolidate their lawsuit challenging the Biden administration’s “indefinite moratorium” on onshore and offshore oil and gas leasing with an earlier lawsuit filed by Louisiana and other states. The court found that consolidation was inappropriate. Factors cited by court included that the overlap of issues of law and fact in the two cases was “far from complete” and that there was “little risk of inconsistent results” since the same judge was adjudicating both cases. The court also said consolidation could risk “injecting new issues” in the states’ case that could “slow the progress toward resolution of the unique legal issues raised in that matter.” The court also noted that none of the plaintiffs were the same in the two cases, and that the cases were not in the same phase since the court had already issued a preliminary injunction and ruled on a motion to dismiss in the states’ case. On April 29, 2022, the court denied environmental groups’ motion to intervene, finding that the government defendants adequately represented the groups’ interests in maintaining the moratorium. American Petroleum Institute v. U.S. Department of Interior, No. 2:21-cv-02506 (W.D. La. Apr. 18, 2022)
New York Federal Court Dismissed Lawsuit Alleging that Company Made Misleading Carbon Footprint Claims for Wool Shoes
The federal district court for the Southern District of New York dismissed a lawsuit alleging that the shoe company Allbirds, Inc. made misleading claims regarding the environmental impacts of its wool shoes as well as misleading animal welfare claims. The plaintiff asserted claims under New York General Business Law §§ 349 and 350, which prohibit deceptive acts or practices and false advertising. The court found that the plaintiff failed to plausibly allege that the company’s statements were materially misleading. The court noted that the plaintiff took issue with tools and methodologies used by the company to calculate its product’s environmental impact—the life cycle assessment (LCA) used to estimate its products’ carbon footprint and the Higg Material Sustainability Index (Higg MSI) developed by the Sustainable Apparel Coalition—but did not allege that the calculations were wrong or that the company falsely described them. Nor did the plaintiff allege that a reasonable consumer would expect the company to use another methodology or that a reasonable consumer would be misled by the defendant’s use of the LCA tool or the Higg MSI. The court also rejected the contention that the defendant had improperly omitted information related to the wool industry’s methane emissions, land occupation, and eutrophication; the court found that the plaintiff “provides no basis to find it plausible that a reasonable consumer would expect that calculation to include non-atmospheric effects or effects from the farming that precedes the production of the raw materials.” The court also dismissed claims for breach of express warranty, fraud, and unjust enrichment on the same grounds and also because they were inadequately pleaded. Dwyer v. Allbirds, Inc., No. 7:21-cv-05238 (S.D.N.Y. Apr. 18, 2022)
Arizona Federal Court Dismissed Arizona’s NEPA Challenges to Biden Administration Immigration Actions
The federal district court for the District of Arizona granted in part the federal government’s motion to dismiss Arizona’s lawsuit contending that the federal government failed to comply with the National Environmental Policy Act (NEPA), acted arbitrarily and capriciously, and failed to comply with the Constitution’s Take Care Clause when the Biden administration took immigration-related actions to implement what Arizona called a “Population Augmentation Program.” Actions challenged included the halt of construction on the border wall and the rescission of the Migrant Protection Protocols (which required migrants who passed through Mexico on their way to the U.S. to remain in Mexico during immigrating proceedings). The State alleged that these actions would result in additional migrants entering the United States and Arizona, which would have a “direct and substantial impact on the environment in Arizona,” including increases in “the release of pollutants, carbon dioxide, and other greenhouse gases into the atmosphere, which directly affects air quality.” The court found that Arizona failed to state a claim that defendants violated NEPA by failing to prepare a programmatic environmental impact statement and also dismissed, on standing grounds, claims stemming from the termination of border wall construction due to a failure to establish that the termination caused the alleged injuries. The court alternatively found that the complaint failed to state NEPA or Take Care Clause claims with respect to the termination of border wall construction. The court allowed Arizona to amend its complaint to attempt to cure the deficiencies related to standing for the arbitrary-and-capricious challenge to the termination of border wall construction, but denied Arizona’s motion to conduct jurisdictional discovery. The court also directed the parties to file supplemental briefing on whether claims related to the MPP were moot due to intervening judicial decisions and Biden administration actions. Arizona v. Mayorkas, No. CV-21-00617-PHX-DWL (D. Ariz. Apr. 28, 2022)
Plaintiffs Voluntarily Dismissed Challenge to Keystone XL Authorizations
On April 12, 2022, plaintiffs challenging federal authorizations for the Keystone XL pipeline project filed a notice of voluntary dismissal “on the sole grounds of mootness, and without prejudice.” The plaintiffs filed their lawsuit in December 2020 and asserted claims under NEPA, the Endangered Species Act, the Administrative Procedure Act, the Mineral Leasing Act, and the Federal Land Policy Management Act. They challenged actions by the U.S. Army Corps of Engineers, President Trump, the U.S. Department of State, and the U.S. Bureau of Land Management. Indigenous Environmental Network v. U.S. Bureau of Land Management, No. 4:20-cv-00115 (D. Mont. Apr. 12, 2022)
Climate Change and Precipitation Trends Cited as Reason for Allowing Clean Water Act Citizen Suit to Proceed
The federal district court for the Eastern District of Virginia allowed two environmental organizations to proceed with claims for injunctive relief in a citizen suit alleging violations of the Clean Water Act at the Henrico County Water Reclamation Facility. The court found that the plaintiffs “sufficiently alleged a state of intermittent violation” at the facility over a period of almost three decades and noted that the County and the Virginia Department of Environmental Quality “themselves appear to express doubt that the effluent limit violations remain wholly in the past.” In particular, the court cited the County’s acknowledgement that certain violations coincided with “wet weather conditions” and the County’s assertion that this challenge was “compounded by the recent effects of climate change, including more frequent severe weather events and increased amounts of precipitation.” The court wrote that “[s]uch trends suggest to the Court that Henrico may yet violate its effluent limitation limits in the intervening years” before completion of required upgrades to manage increased precipitation. The court found that these “reasonable doubts as to future compliance” were sufficient to conclude that violations were not “wholly past” and that the County remained in violation of Clean Water Act standards. Chesapeake Bay Foundation, Inc. v. County of Henrico, No. 3:21-cv-752 (E.D. Va. Apr. 11, 2022)
California Appellate Court Directed County to Recirculate Discussion of Bottling Plant’s Greenhouse Gas Emissions
The California Court of Appeal held that the County of Siskiyou did not properly evaluate the climate change impacts of a facility that extracted groundwater to produce bottled water. The appellate court found that the County should have allowed an additional opportunity for the public to comment after it disclosed that the project would result in nearly double the greenhouse gas emissions that were disclosed before the initial public comment period. The appellate court also found that the stated project objectives were “unreasonably narrow” but rejected other arguments challenging the California Environmental Quality Act review, including arguments that the County potentially understated the project’s greenhouse gas emissions and that greenhouse gas mitigation measures were not enforceable. We Advocate Through Environmental Review v. County of Siskiyou, No. C090840 (Cal. Ct. App. Apr. 20, 2022)
Chancery Court Rejected Claims of Breach of Fiduciary Duty in Tesla Acquisition of SolarCity
The Delaware Court of Chancery ruled for Elon Musk and members of the Tesla board of directors on claims that they breached their fiduciary duties and engaged in other wrongdoing in connection with Tesla’s 2016 acquisition of the solar energy company SolarCity Corporation, which had liquidity issues. At the time, Musk was the chairman of the SolarCity board of directors and its largest stockholder. The court noted that Musk had authored and released a “Master Plan” in 2006 that declared that Tesla would “accelerate the world’s transition to sustainable energy,” and that SolarCity was “part of this vision” and “specifically mentioned in the Master Plan.” The judge concluded that Musk “was undoubtedly involved in the deal process in ways he should not have been, but fortunately, the Tesla Board ensured nevertheless that the process led to a fair price.” Among other things, the judge concluded that “synergies,” including creation of an “integrated sustainable energy company,” were “a strong rationale” for the acquisition. The court found that “there can be no doubt that the combination with SolarCity has allowed Tesla to become what it has for years told the market and its stockholders it strives to be—an agent of change that will ‘accelerate the world’s transition to sustainable energy’ by ‘help[ing] to expedite the move from a mine-and-burn hydrocarbon economy towards a solar electric economy.’” The court found no basis to conclude that a “fairer price” was available and therefore concluded that the price paid was “entirely fair,” which was not consistent with a breach of fiduciary duty. In re Tesla Motors, Inc. Stockholder Litigation, No. 12711-VCS (Del. Ch. Apr. 27, 2022)
Temporary Block on Publication of Pennsylvania RGGI Regulations Expired; Oil and Gas Industry Group Challenged Regulations
On April 5, 2022, the Pennsylvania Commonwealth Court issued an order temporarily blocking the publication of regulations to implement Pennsylvania’s participation in the Regional Greenhouse Gas Initiative (RGGI) cap-and-trade program for carbon emissions from power plants. The court issued the order in a lawsuit brought by Governor Wolf’s administration against the Legislative Reference Bureau to seek a faster timeframe for publication. State legislators intervened and requested a preliminary injunction barring publication. The stay was deemed dissolved as of April 11, and the regulations were published on April 23. On April 25, oil and gas industry trade groups filed a separate proceeding challenging the regulations. McDonnell v. Pennsylvania Legislative Reference Bureau, 41 MD 2022 (Pa. Commw. Ct., filed Feb. 3, 2022), 45 MAP 2022 (Pa.); Pennsylvania Independent Oil & Gas Association v. Commonwealth, No. 249 MD 2022 (Pa. Commw. Ct., filed Apr. 25, 2022)
Agreement Reached to Resolve CEQA Litigation Over Fontana Warehouse Project
Sierra Club, the California Attorney General, the City of Fontana, and the developer of a warehouse project in Fontana agreed to a settlement that resolved CEQA lawsuits brought by Sierra Club and the Attorney General in 2021. The City agreed defend and enforce compliance with an ordinance adopted on April 12, 2022 that establishes additional sustainability standards for warehouses in Fontana. The standards include requirements that rooftop solar panels supply 100% of power for non-refrigerated portions of facilities with buildings over 400,000 square feet, trees in automobile parking areas, zero emission motorized operational equipment, other equipment electrification requirements, and solar-ready buildings roofs. Sierra Club v. City of Fontana, No. CIVSB2121605, CIVSB2121829 (Cal. Super. Ct. Apr. 14, 2022)
NEW CASES, MOTIONS, AND OTHER FILINGS
States Urged D.C. Circuit to Consider Constitutionality of California’s Clean Air Act Waiver
After EPA reinstated California’s authority under the Clean Air Act to implement its own greenhouse gas emission standards and zero emission vehicle mandate, states that had intervened in challenges to the Trump administration’s revocation of the waiver argued to the D.C. Circuit Court of Appeals that reinstatement of the waiver did not moot the case. The states contended that there was a reasonable prospect that the 2019 revocation would go back into effect, and that the D.C. Circuit should return the case to the active docket to consider the states’ argument that the waiver is unconstitutional because it violates the equal-sovereignty issue. Union of Concerned Scientists v. National Highway Traffic Safety Administration, No. 19-1230 (D.C. Cir. Apr. 11, 2022)
NEPA Lawsuits Challenged Postal Service Plan for New Vehicle Fleet
On April 28, 2022, three lawsuits were filed in federal district courts alleging that the U.S. Postal Service failed to comply with NEPA in connection with its Next Generation Delivery Vehicles program, which would replace the Postal Service’s fleet with up to 90% internal combustion vehicles and at least 10% electric vehicles. Two of the lawsuits were filed in the Northern District of California (one by CleanAirNow, Center for Biological Diversity, and Sierra Club and the other by 16 states, the District of Columbia, New York City, and the Bay Area Air Quality Management District). The third lawsuit was filed in the Southern District of New York by Natural Resources Defense Council and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). In all three lawsuits, the plaintiffs alleged that the Postal Service violated NEPA by awarding a contract and issuing a task order prior to initiating the NEPA review. The three sets of plaintiffs also asserted that the Postal Service failed to analyze reasonable alternatives and failed to take a hard look at environmental impacts, including greenhouse gas emissions. The state plaintiffs also alleged that the Postal Service failed to consider its plan’s inconsistencies with state and local laws and plans to reduce greenhouse gas emissions and fossil fuel consumption and to electrify the transportation sector. CleanAirNow v. DeJoy, No. 3:22-cv-02576 (N.D. Cal., filed Apr. 28, 2022); Natural Resources Defense Council, Inc. v. DeJoy, No. 1:22-cv-03442 (S.D.N.Y., filed Apr. 28, 2022); California v. U.S. Postal Service, No. 3:22-cv-02583 (N.D. Cal., filed Apr. 28, 2022)
FOIA Lawsuit Sought Records Related to Department of Interior Report on Oil and Gas Leasing
Friends of the Earth (FOE) filed a Freedom of Information Act (FOIA) lawsuit against the Council on Environmental Quality (CEQ) to compel disclosure of information that FOE alleged might reveal “potential political interference” in the preparation of a report by the U.S. Department of Interior on federal oil and gas permitting and leasing practices, “including potential climate and other impacts associated with oil and gas activities on public lands or in offshore waters.” President Biden directed the Secretary of the Interior to prepare the report in his Executive Order 14008 on “Tackling the Climate Crisis at Home and Abroad.” FOE alleged that the resulting report, released in November 2021, was “underwhelming” and entirely failed to discuss the “the federal leasing program’s causal role in accelerating climate change.” FOE alleged that it believed the report “may have been modified significantly in response to political pressure from the White House and CEQ, acting at the behest of oil-and-gas industry interests and oil-producing states.” FOE submitted a FOIA request seeking records and documents related to the report in January 2022, including communications between CEQ or the White House and other agencies and “records with trade associations of oil and gas operators/lessees.” FOE alleged that it had yet to receive any response to its request. Friends of the Earth v. Council on Environmental Quality, No. 1:22-cv-001128 (D.D.C., filed Apr. 25, 2022)
Lawsuit Challenged Failure to Make Listing Determination for Climate Change-Threatened Suckley’s Cuckoo Bumblebee
Center for Biological Diversity filed a lawsuit in the federal district court for the District of Arizona alleging that the U.S. Fish and Wildlife Service had failed to make a mandatory finding of whether the Suckley’s cuckoo bumblebee should be listed as endangered or threatened under the Endangered Species Act. The complaint alleged that climate change was among the threats to both the Suckley’s cuckoo bumblebee—which is “a social parasite relying on host bumblebee colonies to care for its young”—and to its host, the western bumblebee. In particular, the complaint alleged that “[e]xtreme temperatures threaten [the bees’] ability to fly and forage” because at temperatures above 75°F, “they are unable to control their body temperature and cannot fly” and because “[r]ising temperatures also cause droughts, which leads to the depletion of floral resources.” Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 4:22-cv-00192 (D. Ariz., filed Apr. 21, 2022)
Conservation Groups Challenged Reviews for Southern Arizona Highway Project
Four conservation groups filed a lawsuit in the federal district court for the District of Arizona alleging that the Federal Highway Administration (FHWA) had conducted an inadequate review for a proposed 280-mile interstate corridor in southern Arizona. Climate change-related allegations included that FHWA failed to quantify and analyze greenhouse gas emissions from increased traffic, construction and long-term maintenance of the project, suburban and exurban development spurred by the project, and an increase in idling trucks at the Mexico border. In addition, the complaint alleged a failure to examine “the cumulative effects of the wildfire risk and climate change on the integrity of the Sonoran Desert ecosystem.” The complaint asserted violations of NEPA, Section 4(f) of the U.S. Department of Transportation Act, the Fish and Wildlife Coordination Act of 1958, and the Administrative Procedure Act. Coalition for Sonoran Desert Protection v. Federal Highway Administration, No. 4:22-cv-00193 (D. Ariz., filed Apr. 21, 2022)
Sierra Club Challenged Repowering Project at Glendale Power Plant
Sierra Club filed a CEQA challenge to the City of Glendale’s approval of a project to repower a power plant with five new natural gas-fired engines. Sierra Club alleged that the project description “paints an inaccurate and incomplete picture of the Project that dramatically inflates Glendale’s energy needs,” which provided a basis for the arbitrary rejection of viable alternatives that could accelerate the City’s transition from fossil fuels. Sierra Club also alleged that the environmental impact report overlooked the projects’ impacts on environmental justice communities. Sierra Club v. City of Glendale, No. 22STCP00983 (Cal. Super. Ct., filed Mar. 18, 2022)
D.C. Circuit Held Challenge to Energy Conservation Standards Interpretive Rule in Abeyance
In February 2022, a petition for review was filed in the D.C. Circuit Court of Appeals challenging a U.S. Department of Energy final interpretive rule regarding what constitutes a “feature” for purposes of establishing energy conservation standards under the Energy Policy and Conservation Act. The final rule reinstated, for residential furnaces, commercial water heaters, and similar products, a long-standing interpretation under which heat exchanger technology used to supply heated air or hot water is not a performance-related “feature” that provides a distinct consumer utility. The petitioners were trade associations representing energy companies that deliver natural gas and publicly owned natural gas distribution systems, natural gas utilities, and a manufacturer of heating and cooling equipment. Twelve states, the District of Columbia, and New York City moved to intervene in support of the respondents, as did Natural Resources Defense Council, Sierra Club, and Consumer Federation of America. On April 8, the D.C. Circuit granted the petitioners’ unopposed motion to hold the case in abeyance pending issuance of final efficiency regulations issued in reliance on the interpretive rule. American Gas Association v. U.S. Department of Energy, No. 22-1030 (D.C. Cir., filed Feb. 25, 2022)
HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART
FEATURED CASES
Mexico’s Amendments to Electric Industry Act Ruled Constitutional
On March 9, 2021, Mexico published amendments to Mexico’s Electric Industry Act. One of the amendments established that the allocation of Clean Energy Certificates will no longer be conditioned on ownership or utilities’ start date of commercial operations. On April 8, 2021, members of the Senate’s minority filed an action challenging the constitutionality of several amendments to the Electric Industry Act, including those that change the rules of operation for Clean Energy Certificates. On April 7, 2022, seven out of the 11 Supreme Court Justices decided that the amendments to the Electric Industry Act are unconstitutional. Among other reasonings, the Justices considered that the amendments do not comply with the principle of sustainability in the Mexican electric system and violate the right to a healthy environment. However, eight votes were required for the law to be declared invalid. Since only seven Justices voted for the unconstitutionality of the law, the Electric Industry Act was declared valid. Challenge to the constitutionality of amendments to the rules governing Clean Energy Certificates (Mexico, Supreme Court)
Osaka High Court Upheld Environmental Assessment for New Coal-Fired Units
On November 19, 2018, 12 residents of the Japanese city of Kobe filed an administrative action against the government seeking more ambitious action on climate change. The plaintiffs asked the Osaka District Court to compel the government to cancel the Notice of Finalization of an environmental assessment of two new coal-fired units, which the plaintiffs allege would emit about 7 million tons of carbon dioxide per year. The plaintiffs also sought an order finding that the government has unlawfully failed to establish regulatory standards consistent with the Paris Agreement. On March 15, 2021, the Osaka District Court rejected the plaintiffs’ request to cancel the Notice of Finalization. On April 26, 2022, the Osaka High Court upheld the judgment by the Osaka District Court. In this judgment, the Osaka High Court discussed whether the appellants had standing under administrative law and whether the Notice of Finalization was illegal. Regarding the first point of the dispute, the court stated that there must a legally protected individual interest to have standing under administrative law. While the court recognized the standing of the appellants in relation to air pollution, the court ruled that the interest of the appellants do not include climate damage and that CO2 emissions are not recognized as a legally protected interest in the current society. The court further states that this interest should be pursued in the policy-making process as a general public interest. However, the court does not deny the possibility of a future change in this interpretation. If there is a change in the social situation or understanding, the interest to not incur damage through climate change and the CO2 emissions may be recognized as a legally protected individual interest.
Regarding the second point, the legality of the Notice of Finalization, the court was not able to determine its legality based on the CO2 emissions as this was a policy issue. Moreover, concerning the lack of consideration of PM 2.5 emissions and concerns related to the emissions of other pollutants, the court stated that there was no deviation or abuse of the discretionary power. Thus, the Notice of Finalization was legal. The citizens expressed their intent to bring the case to the Supreme Court. Citizens’ Committee on the Kobe Coal-Fired Power Plant v. Japan (Japan, Osaka High Court)
DECISIONS & SETTLEMENTS
Grand Chamber of European Court of Human Rights to Hear Swiss Senior Women’s Climate Case
After having exhausted all national remedies available, with the final decision from the Austrian Supreme Court communicated to the parties in May 2020, on November 26, 2020 an association of senior women (Senior Women for Climate Protection Switzerland) took the Swiss government to the European Court of Human Rights because their health is threatened by heat waves made worse by the climate crisis. They also requested the case be treated under the expenditure procedure pursuant to Article 41 of the Rules of the Court. On April 26, 2022, the Chamber of the European Court of Human Rights (ECtHR) relinquished jurisdiction in favor of the Grand Chamber of the Court. The case is now going to be examined by the ECtHR’s Grand Chamber of 17 judges on account of the fact that the case raises a serious question affecting the interpretation of the European Convention on Human Rights (Art 30 ECHR). Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others (ECtHR)
Judge in Papua New Guinea Ruled that EIA Should Assess Climate Harms
On December 18, 2020, the Managing Director of the Conservation and Environmental Protection Authority of Papua New Guinea issued an environmental permit for the Wafi-Golpu Mining Project as a precondition for the issuance of a special mining lease. The plaintiffs—the Morobe Provincial Government on its own behalf and on behalf of the people of Morobe—applied for a stay of the permit arguing that there was no proper review and consultation as required in the constitution and that the decisions were unreasonable as they would create irreparable environmental damage. The defendants argued for a dismissal of the application for stay. On September 20, 2021, the judge granted the application for stay. The judge held that the plaintiffs and other members of the public were denied natural justice as the Minister failed to provide fully the information required and in easily understandable language or incorporate the matters raised in consultations or review meetings. The defendants failed to consider the climate change goals that informed the adoption of the Environment Act when issuing the permit. There was a risk of irreparable damage as the defendants failed to demonstrate how the environmental impact assessment and the permit meet the requirements of the Act. Furthermore, the permit was granted for 50 years, 20 years more than the estimated 30-year life of a mine. Citing the global impacts of greenhouse gas emissions, the judge noted that the parties did not provide any information on whether the environmental impact assessment (EIA) considered levels of CO2 emissions and impacts on local and global environment and proposed measures to minimize such emissions. As part of an EIA analysis, the court noted that the assessment should include a question on “What climate change related risks have been identified and what adaptation and mitigation programs if any have been built into the EIS and the deep sea tailings placement (DSTP) and how will that be monitored and reviewed and enforced?” The judge thus issued an order of stay of the two decisions pending a hearing and determination of the substantive review. Saonu and Morobe Provincial Government v. Minister for Environment and Conservation and Climate Change and Others (Papua New Guinea, Court of Justice at Waigani)
Ecuadorian Court Ordered Gradual and Progressive Elimination of Gas Flares
On February 18, 2020, a group of nine girls from the provinces of Sucumbíos and Orellana filed a constitutional injunction (acción de protección) against the government of Ecuador. In their lawsuit, plaintiffs claimed that gas flaring is unlawful, although it can be authorized by exception, and that despite this, the State has made it a common practice, which constitutes a violation of the rights to health, water, and food sovereignty, the right to a healthy environment and the rights of nature. They furthermore argued that pollution of gas flaring causes serious impacts on the environment and on people’s health, damage to biodiversity and the cycles of nature, and contributes to climate change. Plaintiffs requested, inter alia, the annulment of all gas flaring authorizations, the immediate elimination of all flaring towers located in various areas of the Amazon where there is oil activity, and the prohibition of new oil-related flares in the region.
On July 29, 2021, the Provincial Court of Justice of Sucumbío declared that “the Ecuadorian State has ignored the right of the plaintiffs to live in a healthy and ecologically balanced environment and their right to health by promoting polluting activities, and by refusing to use environmentally clean and energy-efficient technologies.” The Court indicated that the authorizations for gas flaring, as an activity associated with hydrocarbon production carried out by the Ecuadorian State, disregards various international commitments made by Ecuador in environmental matters. Among the most important of those commitments are Ecuador’s Nationally Determined Contributions, carried out during the COP 21 to the United Nations Framework Convention on Climate Change. As a result, the Court ordered an update to the plan to provide for the gradual and progressive elimination of the gas flares, with those located in places close to the populated centers being the first to be removed, for which a period of 18 months is granted; with respect to the other gas flares, they should proceed to their progressive elimination until December 2030. In addition, the Ministry of Energy and Non-Renewable Natural Resources may grant authorizations for new clean technologies located away from populated centers. Herrera Carrion et al. v. Ministry of the Environment et al. (Caso Mecheros) (Ecuador, Provincial Court of Justice of Sucumbíos)
In Gas Flaring Case, Ecuadorian Court Said Plaintiffs Failed to Demonstrate Violation of Rights of Nature
On December 10, 2020, members of the Waorani Nation located in the Miwaguno community, alongside the nongovernmental organizations Acción Ecológica, Unión de Afectados y Afectadas por las Operaciones de Texaco (UDAPT), and the International Federation of Human Rights (FIDH), filed a constitutional injunction called “acción de protección” against the Chinese oil company PetroOriental S.A. The plaintiffs argued that the gas flaring emanating from an oil concession operated by PetroOriental S.A. is an act that causes constitutional rights violations, specifically because it emits greenhouse gases (GHG) that contribute to climate change. Applicants claimed that climate change produces irregular and unpredictable floods, disturbance in the natural cycles of plants, loss of ancestral knowledge, droughts and other climatic phenomena, all of which have human rights implications. Based on provisions from the Ecuadorian Constitution, national environmental law, the United Nations Declaration on the Rights of Indigenous Peoples, and case law from the Inter-American Court of Human Rights, applicants stressed that the defendant had violated several human rights. The plaintiffs requested that the court (i) declare that the constitutional rights mentioned were infringed, (ii) order the prohibition of gas flaring where the defendant operates; and (iii) order the defendant pay reparations by financing projects designed by the community to adapt to climate impacts in their territory. On July 15, 2021, the judge did not admit the constitutional action since the plaintiffs had not sufficiently demonstrated how the actions of the defendant violate the rights of nature or any constitutional right deriving therefrom. Baihua Caiga et. al., v. PetroOriental S.A. (Ecuador, Family, Women, and Children Judicial Unit from Francisco de Orellana Canton)
ISDS Claim Against Canada Dismissed
In November 2018, the mining company Westmoreland Coal Company submitted a notice of arbitration and statement of claim under Chapter 11 of the North American Free Trade Agreement. In it, the company argued that it was unlawfully excluded from a scheme developed to compensate investors for losses associated with the Alberta government’s Climate Leadership Plan, which accelerated the deadline for the phaseout of coal power to 2030. In January 2022, the arbitral tribunal dismissed the claim. Following the initial filing of the claim by the Westmoreland Coal Company, control of the relevant assets had changed hands during bankruptcy proceedings, and the purchaser, Westmoreland Mining Holdings LLC, had sought to continue the claim. The arbitrators concluded that the new entity was no longer entitled to pursue the claim, with no substantial discussion of the substantive merits in the matter. Westmoreland v. Canada (ICSID)
Smith v. Fonterra Case Headed to the New Zealand Supreme Court
Michael John Smith (Ngāpuhi, Ngāti Kahu), climate change spokesperson for the Iwi Chairs’ Forum, a Māori development platform, filed a case against seven high-emitting New Zealand companies in the agriculture and energy sectors, including the dairy farming conglomerate Fonterra, oil refinery NZ Refining Company, and petrol seller Z Energy. Smith claimed that the defendants’ actions constituted public nuisance, negligence, and breach of a duty to cease contributing to climate change.
On October 21, 2021, the Court of Appeal held that tort law was not the appropriate vehicle for dealing with climate change, noting that “every person in New Zealand — indeed, in the world — is (to varying degrees) both responsible for causing the relevant harm, and the victim of that harm.” In late 2021, Mr. Smith applied for leave to bring an appeal to the New Zealand Supreme Court. On March 31, 2022, the Supreme Court granted leave to appeal, on the question of whether the Court of Appeal was correct to dismiss the appeal and allow the cross appeal. Smith v. Fonterra Co-Operative Group Limited (New Zealand, High Court of New Zealand)
Hearing Held on New Zealand Case Against Climate Change Commission and Ministry
On July 1, 2021, a group of hundreds of New Zealand lawyers sued the country’s Climate Change Commission and the Minister for Climate Change alleging that the Commission’s recommendations to the Minister violated New Zealand law and the Paris Agreement. Plaintiffs allege that the Commission’s carbon budgets are inconsistent with holding warming to 1.5C, that it understated required emissions reductions under the Paris Agreement by applying the Intergovernmental Panel on Climate Change’s pathways to gross rather than net CO2 emissions, and that the Commission unlawfully relies on the uncertain prospect of paying other countries to reduce their emissions. The plaintiffs allege that, taken together, these actions violated New Zealand’s Climate Change Response Act and its obligations under the Paris Agreement. The applicants seek relief including orders that the Commission re-consider the first three emissions budgets and their advice relating to the 2030 NDC, and that the Minister re-consider the updated nationally determined contribution. The hearing took place from February 28 to March 3, 2022. Lawyers for Climate Action NZ v. The Climate Change Commission (New Zealand, High Court of New Zealand)
ClientEarth Appealed Court’s Rejection of Application Against Belgian National Bank
On April 13, 2021, ClientEarth filed suit against the Belgian National Bank for failing to meet environmental, climate, and human rights requirements when purchasing bonds from fossil fuel and other greenhouse gas-intensive companies. ClientEarth alleges that the Belgian National Bank’s participation in the European Central Bank’s Corporate Sector Purchase Program—by not taking into account climate, environment, and human rights impacts—violated Article 11 of the Treaty on the Functioning of the EU and Article 37 of the EU Charter of Fundamental Rights (both concern the obligation to integrate environmental protection into EU policies). In December 2021, the Brussels Tribunal of First Instance rejected ClientEarth’s application on procedural grounds. ClientEarth announced in early 2022 that it appealed the judgment. The appeal procedure is now pending before the Brussels Court of Appeal. ClientEarth v. Belgian National Bank (Belgium, Court of First Instance)
Mexican Collegiate Tribunal Dismissed Claim Questioning Rules on Methane Emissions Reductions
In June 29, 2016, Mexico made a joint declaration with the governments of Canada and the United States pledging to reduce methane emissions by between 40 and 45% by 2025. Mexico, through the National Agency for Industrial Security and Environmental Protection in the Hydrocarbon Sector (ASEA) and the Ministry of Environment and Natural Resources (SEMARNAT), adopted its national guidelines for the integral prevention and control of methane emissions from the hydrocarbon sector as a way to implement this decision. The guidelines stipulate that any entity or person regulated by ASEA, such as private companies or state-owned companies in the hydrocarbon sector, must establish a program for the monitoring, prevention, and control of methane emissions for both new and existing facilities. On August 7, 2020, the Mexican Center for Environmental Law (CEMDA) challenged the modification for the submission of programs by suing ASEA and SEMARNAT. On March 17, 2022, the Collegiate Tribunal confirmed the district court’s ruling, deciding that CEMDA lacked legal standing to challenge the modifications. Therefore, the case was dismissed. Mexican Center for Environmental Law (CEMDA) v National Agency for Industrial Security and Environmental Protection in the Hydrocarbon Sector (ASEA) (Mexico, District Court)
Brazilian Appellate Court Scheduled Hearing in Key Climate Case
On October 8, 2020, the Institute of Amazonian Studies (Instituto de Estudos Amazônicos - IEA) filed a Public Civil Action (class action) against the Federal Government of Brazil, seeking recognition of a fundamental right to a stable climate for present and future generations under the Brazilian Constitution, and seeking an order to compel the federal government to comply with national climate law. Plaintiffs allege that the federal government has failed to comply with its own action plans to prevent deforestation and mitigate and adapt to climate change, violating national law and fundamental rights. On March 29, 2022, the federal appellate court (TRF4) issued a decision delimiting the powers of the amicus curiae, given their inability to appeal the decisions of the process. The judge considered the request for the National Institute for Space Research (INPE) to act as amicus curiae in the case to be unfounded, given that the entity did not show interest. Furthermore, the decision called for a conciliation hearing and judgment of the case to be scheduled within 30 days and for the parties, the Attorney General’s Office, and the Federal Public Ministry to be summoned regarding the date and time of the hearing. It is worth mentioning that the order also deals with the possibility of the parties being accompanied by technicians in order to clarify any points on the subject. Two days after the dispatch of the order, the parties were summoned and the hearing was scheduled for May 18, 2022 in the courtroom of the 11th Federal Court. Institute of Amazonian Studies v. Brazil (Brazil, TRF4)
NEW CASES, MOTIONS, AND OTHER FILINGS
New Case Filed by Traditional Group on Pipeline in South Korea
On March 23, 2022, one Korean national and three Australian nationals, who are members of the indigenous community in the Tiwi Islands, Northern Territory, brought a claim against the Korea Trade Insurance Corporation and Korea Export Import Bank, Korean public financial institutions that are functioning as export credit agencies planning to provide financial support to the development project for the Barossa fossil gas reserve off the coast of Northern Territory, Australia, near the Tiwi Islands (Barossa Gas Project). The Barossa Gas Project is being developed by SK E&S (Korea), Santos (Australia), and JERA (Japan). SK E&S purchased 37.5% of the stake in the project in June 2012, reached a final investment decision in March 2021, and applied to the defendants for an export credit guarantee. The plaintiffs are seeking preliminary injunction against the defendants not to provide any financial support in relation to the Barossa Gas Project. The plaintiffs argued that the project will cause significant environmental harm due to (i) 15Mt of CO2 emissions annually throughout the entire life cycle of the fossil gas produced and consumed and (ii) environmental harm to the marine ecosystem impacting the endangered sea turtle species and the livelihood of the indigenous communities. Plaintiffs also argued that the project has significant legal risk (i) as the developer companies have not completed the requisite consultation process with the indigenous communities and (ii) due to potential disputes over the control of the gas field with Indonesia as it is located within the Indonesian Exclusive Economic Zone. Plaintiffs further argued that the project has significant financial risk as (i) development of new fossil gas wells is incompatible with the climate goals under the Paris Agreement, (ii) the demand for fossil gas is expected to fall 55% by 2050 according to the International Energy Agency projection of the 2050 Net Zero scenario, and (iii) carbon capture and sequestration technologies are not mature enough to guarantee reliable capture and storage of the CO2 emissions, creating serious risk of cost overrun. The claim is based on the environmental rights stipulated under Article 35 of the Korean Constitution and property rights of the indigenous individuals living in the Tiwi Islands. Plaintiffs also invoked Article 100 of the National Finance Act, which permits citizens to demand corrective measures against unlawful spending of public funds. Kang et al. v. KSURE and KEXIM (South Korea, Seoul District Court)
Challenge to Road in New Zealand Leads to Dismissal of Project
In March 2021, a coalition of climate and transport advocacy groups, All Aboard Aotearoa, filed a judicial review claim against Waka Kotahi/New Zealand Transport Agency. The claimants seek an order setting aside Waka Kotahi’s decisions to fund and build Mill Road, a 21.5 km road in southeast Auckland. The claimants asserted that the decisions undermined the government’s commitments under the Paris Agreement and the Climate Change Response Act 2002, and that the decision-maker did not properly consider the greenhouse gas emissions of the project. In 2021, the Government announced it would not go ahead with the Mill Road project. All Aboard Aotearoa v Waka Kotahi (New Zealand, High Court, 2021)
Advocacy Group Challenges Transport Plan for Emissions Increase
All Aboard Aotearoa, a coalition of climate and transport advocacy groups, filed an application for judicial review against decisions of Auckland Transport, the Regional Transport Committee for Auckland, and Auckland Council to adopt the Regional Land Transport Plan 2021-2031 (RLTP). Under the RLTP, Auckland’s transport emissions are expected to increase by 6% between 2016 and 2031, and vehicle kilometers travelled per capita are not expected to decrease. The claimant seeks orders setting the decisions aside, and for Auckland Transport and the Regional Transport Committee to prepare and approve a new regional land transport plan. All Aboard Aotearoa v Auckland Transport (New Zealand, High Court, 2021)
Two Cases Brought by Italian Youth Against EU States at the European Court of Human Rights
In 2021, two Italian youth filed similar complaints with the European Court of Human Rights against 33 countries. The applicants, who are both Italian, claim that health conditions have worsened with the effects of climate change. Relying on Articles 2, 8, 13, and 14 of the European Convention on Human Rights, they complain that the 33 States parties to the Convention which are also parties to the 2015 Paris Agreement (including Turkey, Switzerland, Portugal, Austria, Norway and France) have not taken sufficient measures to implement the latter. They claim the countries have violated (i) the positive obligations of States under Articles 2 and 8 to protect the environment; (ii) Article 14, since the harmful effects of global warming would hit the younger generations harder; and (iii) Article 13, alleging that the domestic remedies would not be effective since they would be forced to lodge a complaint in the courts of 33 States, a burden which it would be impossible for them to bear because of their young age and limited financial resources. De Conto v. Italy and 32 Other States (European Court of Human Rights); Uricchio v. Italy and 32 Other States (European Court of Human Rights)
Mayor of Grande-Synthe Brings Claim at the European Court of Human Rights
The application was introduced by the former mayor of the city of Grande-Synthe in France. In 2019 the municipality of Grande-Synthe, which is located in an area considered at very high risk of exposure to climate risks, and the applicant, acting in his capacity of Grande-Synthe Mayor and as a private resident, asked the Council of State to cancel the Government’s refusal to take additional measures to meet the Paris Agreement objective of reducing GHG emissions by 40% by 2030. The cities of Paris and Grenoble, as well as several environmental protection associations, have intervened in the procedure. In its first decision, dated November 19, 2020, the Council of State declared the application admissible insofar as it was introduced by the municipality of Grande-Synthe and allowed the interventions of Paris, Grenoble, and the environmental nongovernmental organizations. The court rejected, however, the application insofar as it was brought by the applicant, on the grounds that he did not show any interest in the case since his claims were limited to the argument that, as an individual, his home was situated in an area likely to be subject to flooding by 2040 (see Commune de Grande-Synthe v. France). Relying on Article 8 of the ECHR, the applicant complains that the Council of State erred in rejecting his action on the ground that he had no interest in the proceedings, even though he was clearly exposed to climate risk caused by insufficient government action. He further argues that the authorities’ failure to act constitutes a violation of their obligation to protect the right to private and family life, within the meaning of Article 8 and to guarantee the right to life, within the meaning of Article 2. Carême v. France (European Court of Human Rights)