May 2023 Updates to the Climate Case Charts

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

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #170:

Supreme Court Denied Fossil Fuel Companies’ Requests for Certiorari on Jurisdictional Issues in State and Local Government Climate Cases

On April 24, 2023, the U.S. Supreme Court denied fossil fuel industry defendants’ petitions for writ of certiorari seeking review of decisions affirming remand orders that sent climate change cases brought by state and local governments back to state courts. The fossil fuel companies had asked the Court to consider whether there was federal jurisdiction over state-law claims seeking redress for injuries allegedly caused by the effects of interstate or transboundary greenhouse gas emissions on the global climate because federal common law necessarily governs such claims. The petition in cases brought by the City and County of Honolulu and the County of Maui also presented a question regarding the application of the federal officer removal statute. Justice Alito did not participate in the consideration of or decision on the petitions. In the case brought by Colorado local governments, the order list noted that Justice Kavanaugh would have granted the petition. The April 24 denials of certiorari involved decisions by four circuit courts of appeals (First, Fourth, Ninth, and Tenth) and 11 cases. A petition for writ of certiorari was still pending for review of the Third Circuit’s decision affirming remand orders in cases brought by the City of Hoboken and State of Delaware. The petition was scheduled for the Court’s conference on May 11. Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County, No. 21-1550 (U.S. Apr. 24, 2023); BP p.l.c. v. Mayor & City Council of Baltimore, 22-361 (U.S. Apr. 24, 2023); Shell Oil Products Co. v. Rhode Island, No. 22-524 (U.S. Apr. 24, 2023); Chevron Corp. v. County of San Mateo, No. 22-495 (U.S. Apr. 24, 2023); Sunoco LP v. City & County of Honolulu, No. 22-523 (U.S. Apr. 24, 2023); BP America Inc. v. Delaware, No. 22-821 (U.S.)

Ninth Circuit Said Federal Law Preempts Berkeley Ban on Natural Gas Piping in New Construction

Reversing a district court’s decision, the Ninth Circuit Court of Appeals held that the Energy Policy and Conservation Act (EPCA) expressly preempts the City of Berkeley’s 2019 ordinance banning the installation of natural gas piping in newly constructed buildings. EPCA’s preemption provision provides that after a federal energy conservation standard becomes effective for a “covered product,” “no State regulation concerning the energy efficiency, energy use, or water use of such covered product shall be effective with respect to such product.” A “covered product” includes consumer products such as kitchen ovens. The Ninth Circuit concluded that Berkeley’s ordinance was a “regulation concerning the … energy use” of a covered product because the plain text and structure of EPCA’s preemption provision “encompasses building codes that regulate natural gas use by covered products,” including by eliminating the use of natural gas. The Ninth Circuit disagreed with the district court’s interpretation of EPCA preemption as limited to facial regulations of consumer products, finding that “EPCA preemption extends to regulations that address the products themselves and the on-site infrastructure for their use of natural gas.” The Ninth Circuit also rejected Berkeley’s argument that the plaintiff—the California Restaurant Association—lacked standing because it did not establish an imminent harm to its members. There were two concurring opinions. The first suggested a need for further guidance on the question of whether the presumption against preemption applies to express preemption provisions like the one in EPCA. The second concurrence expressed “reservations” about the plaintiff’s standing since the complaint did not identify an individual member injured by the ordinance; it also explained why the judge believed that the Berkeley ordinance “cuts to the heart” of what EPCA preemption was intended to prevent: “state and local manipulation of building codes for new construction to regulate the natural gas consumption of covered products when gas service is otherwise available to premises where such products are used.” Sabin Center Senior Fellow Amy Turner published a Climate Law blog post about the Ninth Circuit’s decision and its implications for other local laws. California Restaurant Association v. City of Berkeley, No. 21-16278 (9th Cir. Apr. 17, 2023)

 

DECISIONS AND SETTLEMENTS

Fourth Circuit Denied Rehearing of Decision Upholding NEPA Review of North Carolina Toll Bridge

The Fourth Circuit Court of Appeals denied a petition for rehearing and rehearing en banc of its February 2023 decision rejecting challenges to the National Environmental Policy Act (NEPA) review of a proposed toll bridge connecting North Carolina’s mainland to the Outer Banks. The plaintiffs’ arguments included that the defendants should have prepared a supplemental environmental impact statement to consider new sea-level rise data allegedly showing that the bridge would be inundated in less than 30 years. No Mid-Currituck Bridge-Concerned Citizens & Visitors Opposed to the Mid-Currituck Bridge v. North Carolina Department of Transportation, No. 22-1103 (4th Cir. Apr. 21, 2023)

Plaintiffs Withdrew Appeals of Denial of Preliminary Injunction in Willow Project Challenges

On April 19, 2023, the Ninth Circuit Court of Appeals denied emergency motions for an injunction pending appeal of the denial of a preliminary injunction to block work on the Willow Project, an oil and gas development project in the National Petroleum Reserve in Alaska. On April 28, the plaintiffs requested voluntary dismissal of their appeals of the denial of the injunction. The plaintiffs said they had conferred with the proponent of the project and learned that winter construction activities would be completed the week of May 1 and that major construction activities would not resume until the winter freeze-up in late 2023, allowing the plaintiffs to seek a briefing schedule that would make it possible for the district court to resolve the case before commencement of further ground-disturbing activities. Sovereign Iñupiat for a Living Arctic v. Bureau of Land Management, Nos. 23-35226, 23-26227 (9th Cir. Apr. 19, 2023)

Eleventh Circuit Said Challenge to Allocation of HFC Permits Should Be Heard by D.C. Circuit

The Eleventh Circuit Court of Appeals held that the allocation of hydrofluorocarbon (HFC) consumption allowances under the American Innovation and Manufacturing Act (AIM Act) was a “nationally applicable” action, and that the Clean Air Act therefore required that a Georgia-based manufacturer of refrigerants file a challenge to the allocation in the D.C. Circuit. The AIM Act requires the phasedown of domestic production and consumption of HFCs by capping the number of allowances allowed each year. The law directed the U.S. Environmental Protection Agency (EPA) to establish an allowance allocation and trading program to implement the phasedown. The Eleventh Circuit concluded that EPA’s allocation notice was nationally applicable because it allocated allowances nationwide and did not geographically restrict them. RMS of Georgia, LLC v. EPA, No. 21-14213 (11th Cir. Apr. 13, 2023)

Magistrate Recommended Denial of Motion to Dismiss NEPA Challenge to Timber Harvest Plan for BLM Lands in Oregon

A magistrate judge in the federal district court for the District of Oregon recommended that the court determine that conservation groups had standing to challenge the Siuslaw Harvest Land Base Landscape Plan Environmental Assessment and that the challenge was ripe. The Landscape Plan was a programmatic document prepared by the U.S. Bureau of Land Management (BLM) that would authorize logging within a 13,225-acre area. The conservation groups alleged that the defendants violated the National Environmental Policy Act (NEPA), including by failing to give “in-depth consideration” to the project’s impacts on carbon sequestration and greenhouse gas emissions and by failing to prepare an environmental impact statement. The magistrate judge found that the conservation groups had demonstrated that their members had concrete interests in the entire 13,225-acre area. The magistrate also concluded that the groups’ procedural NEPA claims were ripe pursuant to Ninth Circuit precedent that “unambiguously regards such challenges as ripe as soon as the alleged procedural failure occurs.” Cascadia Wildlands v. Adcock, No. 6:22-cv-1344 (D. Or. Apr. 21, 2023)

California Federal Court Declined to Dismiss Lawsuit Seeking to Compel Review of Offshore Development and Production Plans from 1980s

The federal district court for the Central District of California found that Center for Biological Diversity (CBD) adequately stated claims under the Outer Continental Shelf Lands Act (OCSLA) and the Administrative Procedure Act that the Secretary of the Interior, the Bureau of Ocean Energy Management (BOEM), and the BOEM Pacific Regional Director had failed to review development and production plans (DPPs) for offshore platforms established in the 1980s off Los Angeles and Orange Counties. The complaint included allegations that drilling off the California coast “contributes to the climate emergency.” The court ruled that OCSLA’s citizen suit provision permitted CBD to bring its claim for relief. The court also found that OCSLA created a discrete and mandatory duty for the Secretary of the Interior to review approved DPPs and that CBD therefore stated a claim under the Administrative Procedure Act for agency action “unlawfully withheld or unreasonably delayed.” Center for Biological Diversity v. Haaland, No. 2:22-cv-06996 (C.D. Cal. Apr. 17, 2023)

Fish and Wildlife Service Agreed to May 2023 Deadline for Designating Critical Habitat for Miami Tiger Beetle

Conservation groups and federal defendants agreed to a settlement agreement pursuant to which the U.S. Fish and Wildlife Service (FWS) must submit for publication in the Federal Register a final determination of critical habitat for the Miami tiger beetle by May 8, 2023. The beetle was listed as endangered in October 2016, at which time the FWS concluded that critical habitat was not determinable. The FWS published a proposed rule in September 2021 to designate 1,977 acres in Miami-Dade County as critical habitat for the beetle. The conservation groups filed this lawsuit in November 2022 to compel final designation of critical habitat, citing the Endangered Species Act’s requirement that a final regulation implementing critical habitat designation be published within one year of the publication of the proposed regulation. They alleged that the beetle and its habitat were threatened by urban development and other factors, including climate change and sea level rise. Center for Biological Diversity v. Haaland, No. 1:22-cv-23765 (S.D. Fla. Apr. 10, 2023)

Federal Court Not Persuaded by Claim that NEPA Review Did Not Take Hard Look at Colorado River Water Transfer’s Cumulative Impacts with Respect to Climate

The federal district court for the District of Arizona denied an application for a preliminary injunction blocking U.S. Bureau of Reclamation (Reclamation) approval of a partial assignment and transfer of a Colorado River water entitlement to an Arizona town from a company that diverts water for agricultural purposes. The plaintiffs alleged that Reclamation should have prepared an environmental impact statement under NEPA. The court first found that two of the plaintiffs—Mohave County and La Paz County—failed to establish that it was reasonably probable that the water transfer would harm their concrete interests. The court found that the remaining plaintiffs—the City and County of Yuma—had standing but that they failed to establish a likelihood of success on the merits of their claims under NEPA and the Administrative Procedure Act, including their claim that Reclamation failed to adequately consider the water transfer’s cumulative impacts as to the effects of climate change and the ongoing drought. The court found that NEPA and its regulations did not require Reclamation to conduct an analysis of these “complex and amorphous issues” but that Reclamation had nevertheless included a brief analysis of these factors that would have satisfied the agency’s “hard look” obligation under NEPA if the analysis were required. County of Mohave v. U.S. Bureau of Reclamation, No. 22-cv-08246 (D. Ariz. Apr. 6, 2023)

Federal Court Vacated NEPA Categorical Exemption for Loans to Medium-Sized CAFOs

The federal district court for the District of Columbia vacated provisions of a Farm Service Agency (FSA) 2016 final rule that established a categorical exemption from NEPA review for loan actions to medium-sized concentrated animal feeding operations (CAFOs). Medium-sized CAFOs stable or confine 200 to 699 mature dairy cows, 300 to 999 veal calves, 300 to 999 cattle, or 37,500 to 124,999 chickens. The court found that FSA had not provided notice that it would exempt all such loan actions from any NEPA review, had provided no opportunity for public comment on this change, and had provided “essentially no reasoning” for the change. The plaintiffs’ allegations included that CAFOs are one of the largest sources of air pollution in the U.S. and that “CAFOs and CAFO waste disposal also release the powerful greenhouse gases methane and nitrous oxide,” contributing to climate change. Dakota Rural Action v. U.S. Department of Agriculture, No. 1:18-cv-02852 (D.D.C. Apr. 4, 2023)

Federal Court Cited Center for Biological Diversity’s Climate Change Expertise as Factor in Allowing Intervention in Arctic Ringed Seal Case

The federal district court for the District of Alaska granted Center for Biological Diversity’s (CBD’s) motion to intervene as a defendant in a lawsuit challenging the National Marine Fisheries Service’s (NMFS’s) rejection of a petition to delist the Arctic ringed seal under the Endangered Species Act. NMFS listed the Arctic ringed seal as threatened in 2012. The court found that CBD satisfied the requirements to intervene as of right. First, CBD demonstrated through its efforts to obtain and defend the listing of the Arctic ringed seal significant protectable interests in the species’ protection under the Endangered Species Act. The court further found that these interests had a relationship to the claims at issue because a ruling for the plaintiffs would make it more difficult for CBD to protect these interests. Second, the court found that disposition of the action might impair or impede CBD’s ability to protect its interests even though there were other means by which CBD could protect its interests. Third, the court found that CBD had overcome the presumption that its interests would be adequately represented by existing parties, including NMFS. The court said there was no guarantee that NMFS would make arguments “concerning what [CBD] views as the ‘overwhelming scientific consensus’ that climate change will harm the Arctic ringed seal’s habitat, the inadequacy of existing regulatory mechanisms to address the threat of climate change, and reasons why the species must remain listed.” The court also noted that CBD had “developed independent expertise on specific issues facing the Arctic ringed seal and the science surrounding the climate impacts that threaten its critical habitat” and that “[t]his scientific expertise … , coupled with [CBD’s] extensive involvement in this specific listing decision, should help elucidate the issues before the Court.” The court also found “no indication” that the plaintiffs or NMFS had demonstrated the same degree of expertise. Alaska v. National Marine Fisheries Service, No. 3:22-cv-00249 (D. Alaska Apr. 5, 2023)

Ohio Federal Court Ruled for Plaintiff on NEPA Challenge to Timber Harvest Project but Said Forest Service Responded Adequately to Climate Change Issue

An Ohio federal court briefly mentioned climate change in its decision on NEPA and National Forest Management Act claims challenging a project that authorized 2,485 acres of timber harvest in Wayne National Forest in southeast Ohio. The court found that the U.S. Forest Service responded adequately to issues the plaintiff raised about the project’s impact on fungal networks and their role in “carbon storage and sequestration … and [] forest health and resiliency in the face of climate change.” The court ruled for the plaintiff on other aspects of its NEPA claim but denied the plaintiff’s NFMA claim. Ohio Environmental Council v. U.S. Forest Service, No. 2:21-cv-04380 (S.D. Ohio Mar. 30, 2023)

California Appellate Court Rejected Challenges to Department of Water Resources’ 2008 Consideration of Potential Climate Change Impacts on Oroville Dam Operations

The California Court of Appeal rejected challenges to the California Environmental Quality Act (CEQA) review that had been completed by the Department of Water Resources (DWR) more than a decade ago for renewal of a federal license for operation of the Oroville Dam and related facilities. The Court of Appeal made its decision on remand from a California Supreme Court decision holding that the Federal Power Act did not completely preempt the CEQA review. Among the CEQA arguments rejected by the Court of Appeal were challenges to the discussion of climate change and its potential impacts on hydrological conditions and how those impacts could affect project operations. DWR found that uncertainties regarding climate change’s potential effects would make any analysis of impacts on project operations speculative. The Court of Appeal found that the record supported these findings, and that DWR “reasonably concluded that the potential impacts were too speculative to warrant further evaluation” based on information available at the time the environmental impact report (EIR) was prepared in 2008. Regarding the petitioners’ references to scientific authorities showing that climate change modeling was not speculative, the Court of Appeal found that even experts who believed at the time that preparation for potential hydrologic changes attributable to climate change was necessary did not believe that climate change’s impacts on local hydrologic conditions could be accurately forecasted. The Court of Appeal also was not persuaded by arguments that DWR failed to disclose scientific authorities that rejected its findings on climate change; that the EIR did not disclose DWR’s own rejection of “sole reliance on twentieth-century hydrology”; and that DWR’s determination that climate impacts would be speculative was at odds with federal case law finding that agencies’ consideration of climate change was inadequate. The appellate court rejected, however, a contention that an EIR was not required to analyze potential future effects of climate change on projects—the court noted that in this case the petitioners were not merely arguing that consideration of climate change’s effects on the project was required but instead that consideration of the project’s effects on the environment under future climate change conditions was required. County of Butte v. Department of Water Resources, No. C071785 (Cal. Ct. App. Apr. 7, 2023)

Maine Jury Found That Hydropower Transmission Line Developer Had Vested Rights

A jury issued a unanimous verdict finding that the developers of the New England Clean Energy Connect (NECEC) project—which would deliver hydropower from Canada to New England—had proved that they “undertook significant, visible construction” on the project prior to the November 2, 2021 vote approving a ballot initiative that blocked the project. The jury also found that the construction was undertaken in reliance on the Certificate of Public Convenience and Necessity issued by the Maine Public Utilities Commission and “according to a schedule that was not created or expedited for the purpose of generating a vested rights claim.” NECEC Transmission LLC v. Maine Public Utilities Commission, No. BCD-CIV-2021-58 (Me. Bus. & Consumer Ct. Apr. 20, 2023)

Massachusetts Court Upheld Denial of Approval for Martha’s Vineyard Residential Project but Rejected Project’s Propane Use as Basis for Denial

A Massachusetts Superior Court upheld the Martha’s Vineyard Commission’s denial of a proposal for a residential project at a 54.26-acre site. The project included 28 single-family house lots and 14 affordable townhouses and was the largest residential development considered by the Commission in at least a decade. The Commission found that criteria for project approval under the law governing the Commission were not met, including the criterion that “the probable benefit from the proposed development will exceed the probable detriment” based on an evaluation of eight factors. Regarding one of those factors, “impact upon the environment,” the Commission found an overall detrimental impact, including because the project would contribute to greenhouse gas emissions through use of “considerable amounts of propane” even though it also would include on-site renewable energy generation. The court found that to the extent the conclusion regarding a detrimental effect on the environment was based on use of propane, it was “contrary to the parties’ stipulation that energy was not a factor” in the denial of approval. The court found, however, that other findings by the Commission of detrimental impacts to the environment were supported. The court also found that evidence supported the Commission’s central conclusions that the project was an inappropriate form of development because it “would commit significant acreage towards luxury homes in a suburban setting, which would not be a prudent use of the island’s dwindling supply of remaining developable land.” Meeting House Way, LLC v. Martha’s Vineyard Commission, No. 2020-33 (Mass. Super. Ct. Apr. 20, 2023)

New York Court Rejected Green Amendment Challenge to Manhattan Development

A New York trial court dismissed a case brought by plaintiffs who contended that development of a large residential project on Manhattan’s Lower East Side would violate the New York State Constitution’s new Environmental Rights (or “Green”) Amendment, which provides that “each person shall have a right to clean air and water, and a healthful environment.” Noting that a New York appellate court had previously rejected other challenges to the project, the court declined to allow the plaintiffs in this case to use the Green Amendment as means to obtain “another ‘bite at the apple’ under circumstances where every previous request has proved unsuccessful and where, on this record, nothing substantive has changed in the intervening years.” The court found that the plaintiffs’ alleged harms, including increased carbon dioxide emissions, were concerns that had been addressed in environmental reviews under the State Environmental Quality Review Act and City Environmental Quality Review, and that there was “no basis to revisit” the environmental analysis. The plaintiffs appealed the dismissal. Marte v. City of New York, No. 159068/2022 (N.Y. Sup. Ct. Apr. 17, 2023)

Montana Court Said Montana Environmental Policy Act Required Consideration of Power Plant’s Greenhouse Gas In-State Impacts

A Montana District Court vacated a permit granted by the Montana Department of Environmental Quality (DEQ) for construction and operation of a gas-fired power plant on the Yellowstone River in eastern Montana. The court found that DEQ violated the Montana Environmental Policy Act (MEPA) by excluding the analysis of greenhouse gas emissions from their environmental review. The court held that DEQ based its decision to exclude this analysis on a misinterpretation of a 2011 statute that provides that an environmental review conducted pursuant to MEPA “may not include a review of actual or potential impacts beyond Montana’s borders” or “actual or potential impacts that are regional, national, or global in nature.” The court found that this provision “does not absolve DEQ of its MEPA obligation to evaluate a project’s environmental impacts within Montana” and that DEQ “must take a hard look at the greenhouse gas effects of this project as it relates to impacts within the Montana borders.” The court also found that DEQ failed to take a hard look at lighting impacts. The permit applicant said it would appeal the decision and seek a stay. Montana Environmental Information Center v. Montana Department of Environmental Quality, No. DV 21-1307 (Mont. Dist. Ct. Apr. 6, 2023)

California Court Vacated Approvals for Los Angeles County Development Project

A California trial court vacated approvals for the Centennial at Tejon Ranch project—a multi-use development on 12,323 acres on Los Angeles County’s border with Kern County—more than two years after finding that the environmental impact report for the project contained flawed analyses of greenhouse gas emissions because it improperly relied on California’s cap-and-trade program to mitigate emissions. The court also found that analysis did not support the conclusion that wildfire risk impacts would not be significant. A December 2021 settlement resolved one organization’s California Environmental Quality Act (CEQA) claims, with the developer committing to measures to achieve net-zero greenhouse gas emissions and to implement wildfire resilience measures. In a press release after the approvals were vacated, the developer said further review of the project would assume implementation of the settlement. The developer also noted that it had the option of appealing the judgment, as well as a 2022 decision that gave one of the remaining petitioners prevailing party status for the successful CEQA claims. Center for Biological Diversity v. County of Los Angeles, No. 19STCP02100 (Cal. Super. Ct. Mar. 22, 2023)

 

NEW CASES, MOTIONS, AND OTHER FILINGS

Lawsuits Challenged County Ordinances Regulating Carbon Dioxide Pipelines

The developer of a proposed interstate pipeline that would transport captured carbon dioxide across Iowa, Illinois, Minnesota, Nebraska, and South Dakota from emitting facilities to storage filed lawsuits in federal court in Iowa challenging two counties’ zoning ordinances that the developer said unlawfully usurped federal and state regulatory authority. The complaint asserted that both federal and state law preempted the ordinances and sought a declaration that the ordinances had no effect because they were unlawful exercises of power. The developer also asserted claims of inverse condemnation and tortious interference with contractual relationships and prospective business advantages. The developer sought preliminary and permanent injunctive relief enjoining the counties from enforcing or implementing the ordinances, similar ordinances, or any other requirement that would regulate any aspect of the project, including safety, location, or routing. Navigator Heartland Greenway LLC v. Emmet County, No. 3:23-cv-03013 (N.D. Iowa, filed Apr. 12, 2023); Navigator Heartland Greenway LLC v. Bremer County, No. 6:23-cv-2030 (N.D. Iowa, filed Apr. 12, 2023)

In a third lawsuit, the developer of another interstate carbon dioxide pipeline and a farmer and part-owner of an ethanol production facility challenged a county ordinance concerning pipeline permitting and safety. They argued that that ordinance was preempted by the federal Pipeline Safety Act and Iowa’s hazardous liquid pipelines and storage facilities statute. These plaintiffs previously challenged another county’s law regulating the pipeline. Couser v. Emmet County, No. 3:23-cv-03007 (N.D. Iowa, filed Mar. 28, 2023)

Plaintiffs Said FEMA Failed to Conduct Adequate Review of Environmental Impacts of Disaster Aid to Rebuild Fossil Fuel-Based Electricity Systems in Puerto Rico

Community and environmental groups filed a lawsuit against the Federal Emergency Management Agency (FEMA) and related defendants alleging that they prepared flawed environmental assessments of the impacts of using federal disaster aid to repair, reconstruct, and relocate Puerto Rico’s “outdated, inefficient, and centralized fossil fuel-based electricity infrastructure and to ensure various public facilities in Puerto Rico had “continued access to the centralized fossil fuel power system.” The complaint alleged that the defendants failed to consider reasonable alternatives such as reliance on distributed renewable energy systems. Alleged flaws in the environmental assessments included failures to consider climate change impacts, including failure to consider how climate change would affect the proposed actions. The plaintiffs contended that reconstruction of existing powerlines and other infrastructure would not reduce the power grid’s vulnerability to problems that are expected to increase as a result of climate change such as wind, flooding, and corrosion from saltwater exposure. In addition, the plaintiffs alleged the disaster aid projects would “actively exacerbate the climate crisis” by investing billions of dollars in Puerto Rico’s fossil fuel-based electricity system, which the plaintiffs alleged would “necessarily prolong the archipelago’s dependence on fossil fuels and lock in years if not decades worth of unnecessary greenhouse gas emissions and co-pollutants that overburden nearby communities.” In addition, the complaint alleged that the environmental assessments did not consider how harms from climate change could disproportionately affect environmental justice communities. The complaint also cited climate change risks to endangered and threatened species. Comité Dialogo Ambiental v. Federal Emergency Management Agency, No. 1:23-cv-00984 (D.D.C., filed Apr. 11, 2023)

Alaska Tribal Consortia Said Environmental Review of Groundfish Catch Limits Failed to Consider Climate Change Effects

Two consortia with members that are federally recognized tribes filed a lawsuit in federal district court in Alaska asserting that the National Marine Fisheries Service (NMFS) violated the National Environmental Policy Act when it adopted annual catch limits for groundfish fisheries of the Bering Sea and Aleutian Islands. The consortia alleged that NMFS improperly based its environmental review on a 2007 environmental impact statement and 2023 supplemental information report that did not analyze the annual groundfish harvest specifications decision in light of climate-induced changes. The consortia contended that the determination that no supplemental environmental impact statement was required was arbitrary, capricious, and not in accordance with law. Association of Village Council Presidents v. National Marine Fisheries Service, No. 3:23-cv-00074 (D. Alaska, filed Apr. 7, 2023)

Lawsuit Alleged Failure to Comply with NEPA for Confined Aquatic Disposal Facility in California

A lawsuit filed in the federal district court for the Central District of California sought to vacate a U.S. Army Corps of Engineers permit for a confined aquatic disposal (CAD) facility in Newport Harbor in California for disposal of dredged sediment deemed unsuitable for open ocean disposal. The plaintiff alleged that the Corps violated NEPA and the Administrative Procedure Act by issuing the permit without preparing an environmental assessment or any other type of NEPA document and had therefore failed to review the CAD’s environmental impacts, including greenhouse gas impacts. The complaint also asserted a claim under the Clean Water Act. Friends of Newport Harbor v. U.S. Army Corps of Engineers, No. 5:23-cv-00591 (C.D. Cal., filed Apr. 4, 2023)

Lawsuit Filed Asserting that Incidental Take/Harassment Authorizations for Offshore Wind Violated Marine Mammal Protection Act

The nonprofit corporation Save Long Beach Island filed a lawsuit seeking to reverse and set aside the National Marine Fisheries Service’s incidental take/ harassment authorizations for offshore wind, which the plaintiff alleged were issued in violation of the Marine Mammal Protection Act, NEPA, and the Administrative Procedure Act. The plaintiff alleged that the authorizations would have more than a “negligible” impact on North Atlantic Right Whale and Humpback Whale species. The plaintiff contended that offshore wind would not have the climate change mitigation benefits that the defendants claimed and that the project would only delay, not reduce, future sea level rise. The complaint further alleged that the defendants and offshore wind advocates failed to recognize “the immense carbon sequestration capacity of great whales” as well as whales’ “multiplicative effect on phytoplankton generation, which offset global CO2 production levels by an incredible 40% annually through capturing 30-50 billion metric tons of CO2 per year.” Save Long Beach Island v. U.S. Department of Commerce, No. 3:23-cv-01186 (D.N.J., filed Apr. 4, 2023)

Lawsuit Challenged Plans for Off-Highway Vehicle Use in Red Rock Canyon State Park

Center for Biological Diversity (CBD) challenged the approval of a General Plan Revision for Red Rock Canyon State Park that CBD said would authorize non-street legal, off-highway vehicle (OHV) use of two roads and OHV access to a campground in the park. CBD alleged that the California State Park and Recreation Commission approved the General Plan Revision without adequate analysis of environmental impacts, including cumulative impacts of climate change that would heighten the effects of habitat loss due to impacts to habitat connectivity and wildlife linkages. Center for Biological Diversity v. California Department of Parks & Recreation, No. 20230403210137 (Cal. Super. Ct., filed Apr. 3, 2023)

 

HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART

 

Mexican Supreme Court Denied Claim that Elimination of Climate Change Fund Violated Constitutional Right to Healthy Environment

The General Law on Climate Change in Mexico was issued in 2012. This law contemplated the Climate Change Fund, a public trust fund created to increase the existing resources to address climate change. According to article 80 of the Law, it had the objective of attracting and channeling public, private, national, and international financial resources to support the implementation of actions to address climate change. However, in 2020 the Mexican Congress reformed the Law and eliminated the Climate Change Fund.

In December 2020, the Mexican Center for Environmental Law (CEMDA) filed a complaint challenging the amendments, arguing among other things, that it violates the constitutional right to a healthy environment. CEMDA requested an injunction to suspend the effects of the amendments, asking the Court to stop the elimination of the Fund. The injunction was denied, and CEMDA appealed the decision before a Collegiate Tribunal. The Tribunal decided in August 2021 to send the appeal to the Mexican Supreme Court.

On April 12, 2023, the Supreme Court decided that it is not up to the judges to evaluate whether a public policy, in a broad sense, is suitable to fulfill a specific purpose, since these decisions correspond to the executive and legislative branches of government. Considering that the modification of the strategy to combat climate change (to extinguish the Climate Change Fund and transfer that budget directly assigned to the Environmental Secretariat) is a matter of public policy, this modification cannot be analyzed by judges. Legislators have ample freedom to determine the mechanisms they deem appropriate to direct the policy to combat climate change.

Furthermore, it was determined that it was not demonstrated that the Fund’s resources, after the modification, will not be used in a correct, transparent, and equitable manner. Therefore, the lower court’s decision was confirmed, and the claim was denied. Mexican Center for Environmental Law (CEMDA) v. Mexico (on the Climate Change Fund) (Supreme Court, Mexico)

 

DECISIONS & SETTLEMENTS

Colombia Constitutional Court Ordered Government to Ensure Protection of Islanders’ Human Rights Threatened by Climate Change in Aftermath of Hurricane Iota

On November 16, 2020, citizen Josefina Huffington Archbold filed a “tutela” against the office of the President of Colombia, the National Unit for Risk Management, the Ministry of Interior, and the Ministry of Housing seeking the constitutional protection of their fundamental rights as well as those of the Afro-Caribbean ethnic group inhabiting the islands of Providencia and Santa Catalina. Plaintiff invoked a violation of the rights to housing, drinking water, basic sanitation, healthy environment, health, access to public information, free, prior and informed consultation, and cultural identity. Claimant argued that defendants violated their fundamental rights during the planning and execution of the action plan set in motion to aid the islands after being hit, in November 2020, by Hurricane Iota, which destroyed 98% of the islands.

The case was heard by a lower court judge, who denied the protection on the basis of a lack of violation. The decision was supported on reports that showed the defendants took some actions to respond to the hurricane and guarantee the fundamental rights of the islanders. Plaintiff appealed, and the Tribunal upheld this decision.

On September 26, 2022, the Constitutional Court (the Court) decided to exercise its judicial review and overturned the previous decisions. The Court found that the violation of the fundamental rights of the plaintiff and the Afro-Caribbean ethnic group was substantiated, and that some of these violations continued to this day, two years after the Hurricane Iota’s devastating pass through the islands.

The Court ordered defendants to ensure the protection of the rights of islanders. The Court highlighted the differentiated impact of climate change on communities in vulnerable situations and invoked the obligations of the Colombian state in the protection of human rights affected by the climate crisis. The Court explicitly mentioned the obligations under the Paris Agreement (ratified by Colombia and included in the domestic legal framework through Law 1844 of 2017), particularly those obligations related to adaptation measures and efforts towards communities in vulnerable situations.

Furthermore, the Court cited Resolution 3/21 (issued by the Inter-American Commission on Human Rights and REDESCA (the Office of the Special Rapporteur on Economic, Social, Cultural and Environmental Rights)) quoting the grave risk countries in the Caribbean experience due to sea level rise and the increase in hurricanes and tropical storms. The Court also mentioned the Inter-American Court of Human Rights’ Advisory Opinion 23/17 to underscore the vulnerable situation in which Caribbean communities in Colombia live and the obligation of states to guarantee the right to public participation in decision-making, among other environmental human rights.

The Court found that the violation of the fundamental rights of the islanders was the result of a lack of compliance by the Colombian government with its domestic and international obligations. The Court issued specific orders to make sure the government’s response is adequate and highlighted that the comprehensive action plan to restore the islands had to consider Colombia’s obligations towards climate change mitigation and adaptation. In the Court’s reasoning, climate change is the biggest threat to the enjoyment of human rights, which extends to mitigation and adaptation measures with a special emphasis on communities in vulnerable situations due to socioeconomic and geographic factors. Josefina Huffington Archbold v. Office of the President and others (Constitutional Court, Colombia)

Supreme Court of Estonia Rejected Claim that Planned Offshore Wind Turbines Would Violate Rights of Coastal Landowner

In 2022, the Government of Estonia imposed a thematic maritime planning which broadly determines areas suitable for the development of wind parks and lays down the general principles and parameters for wind parks in those areas. Mihkel Undrest, a resident whose land on the coast is about 11 kilometers from where the closest wind turbines could be constructed, filed a complaint to the Tallinn Administrative Court and requested the annulment of the planning insofar as it restricts his right to enjoy his home and the right to property.

The Tallinn Administrative Court returned the complaint to the plaintiff owing to a lack of locus standi. The plaintiff appealed the decision to the Tallinn Circuit Court which rejected the appeal.

On March 14, 2023, the Supreme Court of Estonia considered the appeal and rejected it, but amended the arguments of the courts of lower instance. The Supreme Court ruled that very broad planning such as the one in question can interfere with a person’s rights and therefore give locus standi, but the Court did not detect a breach of rights in this case. The Court also stated that for a person to claim that wind turbines breach their rights, the wind turbines must be in their immediate vicinity and that a distance of more than 10 kilometers does not amount to it. Additionally, the breach of rights must be greater than merely theoretical. Mihkel Undrest vs. Government of Estonia (Supreme Court of Estonia, Estonia)

New Zealand Court Rejected Claim Challenging National Land Transport Programme for Inconsistency with Emission Reduction Requirements

The respondent, Waka Kotahi, is New Zealand’s national transport agency. The petitioner Movement challenged a decision by Waka Kotahi to approve a National Land Transport Programme 2021-2024 (NLTP), a three-year plan which sets out how the agency will allocate its resources. Movement argued that the approval of the plan was unlawfully inconsistent with New Zealand legislation (the Land Transport Management Act 2003 (LTMA)), as well as New Zealand’s Government Policy Statement (GPS) on land transport, another regulatory instrument which is legally binding on Waka Kotahi. Movement consequently sought directions from the Court for the NLTP to be reconsidered, as well as guidance to inform the preparation of future NLTPs. The Court rejected all three of the applicant’s causes of action discussed below, and upheld the NLTP.

In the first action, Movement argued that Waka Kotahi was required to ensure that the NLTP contributed to the purposes of the LTMA, and gave effect to the GPS. Movement argued that this included an obligation to ensure that the NLTP would reduce emissions, and that the NLTP approved by Waka Kotahi failed to do so. In particular, Movement argued that this failure violated the purpose of the LTMA, which was “to contribute to an effective, efficient, and safe land transport system in the public interest,” and further, that it violated directives in the GPS to plan for “a reduction in greenhouse gas emissions … through action across all priorities, programmes and activity classes.” The Court rejected the claim that the LTMA’s purpose implied an obligation to consider “environmental benefits” or “climate change,” relying in large part on recent amendments to the statute. The Court also found that the NLTP complied with the GPS directives to support emissions reductions. The first cause of action was consequently rejected.

Secondly, Movement argued that Waka Kotahi’s decision-making was procedurally deficient. Specifically, Movement argued that the priority-setting methods used in the preparation of the NLTP failed to assess whether the overall effect of the NLTP’s investment decisions would achieve the emissions reduction target recommended by New Zealand’s Climate Change Commission (CCC). Movement argued that this was inconsistent with the GPS, which requires real-term reductions in greenhouse gas emissions. Instead, Movement argued that Waka Kotahi was required to make a quantitative assessment to determine the baseline quantum and trajectory of transport emissions; understand how different components of the land transport system would contribute to the reduction of emissions contemplated by CCC; make an “ambitious assessment” as to which reductions are required under the NLTP; assess the carbon emissions of activities in the 2021-2024 period; and ultimately, ensure that the NLTP’s contribution to emissions reductions was consistent with the magnitude of emissions reductions contemplated by the CCC. The Court found, however, that Waka Kotahi was not required under the LTMA or GPS to undertake either a baseline or predictive quantitative assessment of emissions. Instead, it cited precedent that “courts have cautioned against requiring decision-makers to carry out a quantitative analysis in the absence of express directions to do so,” and that Waka Kotahi had satisfied its legal obligations by undertaking qualitative assessments as to how the NLTP would give effect to the GPS “It was not required to ensure that all or any investment decisions supported a mathematical reduction in emissions, but rather it was required to consider the programme as a whole and balance the strategic priorities.” In this case, Waka Kotahi had relied on experts and sufficiently addressed climate change as a strategic priority.

Thirdly, Movement argued that Waka Kotahi had committed an error of law by failing to show that it had considered alternative courses of action that would meet the objectives set out in the GPS. This was because Waka Kotahi was a “funding applicant” for the purposes of the GPS, and was accordingly required to show that “they have considered alternatives and ‘how they compare’” in achieving various objectives identified in the GPS. The Court found that this obligation applied only in funding applications made by Waka Kotahi, and not in the preparation of a NLTP. Movement v. Waka Kotahi (High Court of New Zealand, New Zealand)

Mexican District Court Dismissed Claim that Mexico’s Energy Sector Program Violates Human Rights by Promoting Fossil Fuel Use at the Expense of Investments in Renewable Energy, GHG Emissions Reduction, and Adaptation

In August 2020, Greenpeace Mexico filed a complaint in the District Court in Mexico City against Mexico’s new Energy Sector Program for 2020-2024. The Program was finalized on July 8, 2020. The complaint alleges that the Program violates human rights—including the right to a healthy environment and right of access to electricity based on renewable sources—by promoting fossil fuel use at the expense of investments in renewable energy, greenhouse gas emissions reduction, and adaptation.

In September 2020, the Court issued a preliminary injunction temporarily suspending the program pending resolution of the case. The Court suspended the program, in part, because it prioritized fossil fuels in a way that could constitute imminent danger that is difficult to repair.

In February 2021, Greenpeace expanded its complaint against the Federal Expenditure Budget for the Federation for the fiscal year 2021, annexes 15 and 16.

On March 31, 2023, in relation to the Energy Sector Program for 2020-2024, the Court determined that the lawsuit was filed outside the deadline established by law. Regarding the complaint against the Federal Expenditure Budget for the Federation for the fiscal year 2021, the Judge declared the lawsuit inadmissible because the budget for that year is no longer in effect. Therefore, the case was dismissed. Greenpeace Mexico v. Ministry of Energy and Others (on the Energy Sector Program) (District Court in Mexico City, Mexico)

Colombian Council of State Upheld Tribunal’s Determination that Ministry of Environment Failed to Comply With Obligations Under Climate Action Law

In 2022, the Office of the Inspector General of Colombia and the Office of the Inspector in Environmental Matters filed a joint lawsuit before the Administrative Tribunal of Cundinamarca seeking the declaration of non-compliance by the Ministry of Environment and Sustainable Development (the Ministry) and the President of their obligations under Law 1931 of 2018. The 2018 climate action law, as it is also known, establishes guidelines for climate action in Colombia. The statute’s main goals are to put forth climate change adaptation measures, mitigate greenhouse gas (GHG) emissions, reduce the population’s and ecosystem’s vulnerabilities and promote a just transition towards decarbonization. Plaintiffs claim that it has been four years since the climate action law was issued and the government (represented by the Ministry and the President) has failed to comply with articles 15, 18, 19, 26, and 29.

The Tribunal held that defendants had failed to fully comply with the obligations encompassed in articles 15, 19, 26, and 29 of the 2018 climate action law. Despite some initial efforts to set forth climate action-related activities, the Tribunal found that the Colombian government has to date failed: (i) to regulate goals related to national determined contributions; (ii) to issue a legal document to guide territorial entities and authorities in incorporating climate change in their regulatory and planning instruments; (iii) to regulate the National Information Service on Climate Change (draft legislation is in process); and (iv) to establish GHG quotas (draft legislation is in process). As a result, the Tribunal ordered the Ministry and the President to fully comply with 2018 climate action law obligations and established a new term of six months from the time the decision is final and enforceable.

The defendants filed an appeal before the Council of State. On April 27, 2023, the Council of State upheld the Tribunal’s decision regarding the obligations of the Ministry of Environment to comply with Law 1931 of 2018. The Council of State also found that the office of the President lacked legal standing, so orders are directed only towards the Ministry of Environment, who has six months to comply with the judgment. Office of the Inspector General and Others v. Ministry of Environment and Sustainable Development and Others (Council of State, Colombia)

Climate Protesters Convicted of Aggravated Trespass by UK Court for Obstructing Operations at an Esso Fuel Terminal

On February 16, 2023, seven protesters were found guilty of aggravated trespass by obstructing operations at an Esso fuel terminal in Birmingham. The campaign group, Just Stop Oil, held a protest at an Esso fuel terminal in Birmingham on April 3, 2022. They were demanding an end to governmental support of new fossil fuel licenses and projects. The 12-hour action meant that the fuel terminal was unable to operate as the protesters gathered within the site and in front of security barriers. The protest was part of a larger action taking place across England in conjunction with Extinction Rebellion.

The defendants were sentenced at the Wolverhampton Magistrates Court. Although a guilty verdict was reached for 7 of the 9 defendants, the judge was sympathetic to the cause of the protesters. There was a dispute as to what his sentencing remarks were. According to Just Stop Oil, he said, when noting the defendants’ “admirable aims,” that: “When the United Nations Secretary General gives a speech saying that the activity of fossil fuel companies is incompatible with human survival, we should all be very aware of the need for change.” The BBC followed up with an article setting out what the Judicial Office understood to be the judge’s comments. That version was also sympathetic to the defendants however, noting their explanations for their actions were “deeply emotive” which “moved” the judge.

The convicted were given a 12-month conditional discharge and ordered to pay costs. R v. Brewer and others  (Just Stop Oil protest, Esso terminal, Birmingham) (Magistrates Court, England and Wales, U.K.)

 

NEW CASES

French NGOs Sued BNP Paribas for Alleged Responsibility in Amazon Deforestation and Human Rights Violations

On October 11, 2022, NGOs Comissão Pastoral da Terra and Notre Affaire à Tous sent a notice of intent to sue BNP Paribas in relation to its financing of businesses allegedly responsible for the deforestation of the Amazon and violations of human rights. Considering the answer by BNP Paribas as largely insufficient and non-satisfactory, the NGOs decided to bring suit before the Judicial Court of Paris. The notice of intent to sue—which was the first, and necessary, pre-trial stage—and the subsequent summons filed before the Judicial Court of Paris, claim BNP Paribas violated the loi sur le devoir de vigilance of 2017 (law on the duty of vigilance; incorporated in articles L. 225-102-4 and 225-102-5 of the French Commercial Code).

The law on the duty of vigilance provides that specific companies (those who employ “at least five thousand employees within the company and its direct and indirect subsidiaries, whose head office is located on French territory, or that has at least ten thousand employees in its service and in its direct or indirect subsidiaries, whose head office is located on French territory or abroad”) must establish a plan to prevent the violation of human rights and environmental damage that may occur in the course of their business. The plan must “include reasonable vigilance measures to identify risks and prevent serious violations of human rights and fundamental freedoms, the health and safety of individuals and the environment, resulting from the activities of the company and those of the companies it controls ... as well as from the activities of subcontractors or suppliers with whom there is an established business relationship, when these activities are related to that relationship.” If the plan is not correctly drafted or is inadequate to measure and prevent these risks, the company is liable for the damages that it might have prevented. Anyone with a legitimate interest can also ask for injunctive relief to force the company to comply with the law, a groundbreaking preventative mechanism for French legal proceedings.

The summons sent by Comissão Pastoral da Terra and Notre Affaire à Tous to BNP Paribas asserts multiple violations of the law, stating that the bank’s vigilance plan is not adequate to prevent the violations of human rights. In particular, the summons asserts that BNP Paribas provides financial services without adequate due diligence to corporations, such as Marfrig, one of the world’s largest producers of beef. Suppliers to Marfrig have allegedly engaged in severe deforestation of the Amazon, land-grabbing of protected indigenous territories, and forced labor in cattle farms. The beef sector is the largest driver of deforestation in the Amazon, and it is also among the largest sources of methane emissions.

The violations relate not only to how BNP Paribas’s plan is drafted but also the lack of clarity concerning environmental commitments and the fact that the plan identifies as a risk only deforestation, and not also the seizure of indigenous peoples’ land, forced labor, and methane emissions. Moreover, the plan does contain adequate measures to mitigate the aforementioned risks of human rights’ violations. Therefore, the plaintiffs claim that the Court has to order BNP Paribas to fulfill its obligation relating to the duty of vigilance and, therefore, to implement a new plan.

In this plan, BNP Paribas would:

- group together all the elements relating to the law on the duty of vigilance within its plan;

- put an end to the ambiguity of its environmental commitments within its vigilance plan and in its public communication, which contributes to greenwashing;

- identify the risks of invasion of indigenous territories, slavery-like practices, and methane emissions, particularly from cattle farming and in Brazil, and adopt appropriate risk mitigation and prevention measures accordingly;

- measures to assess the situation of suppliers and take appropriate risk mitigation and prevention actions to ensure that its customers’ supply chains do not contribute to deforestation, use slavery-like practices, or infringe on the rights of indigenous peoples;

- establish an easily accessible alert and reporting mechanism for third parties who are or may be affected by negative impacts caused by BNP Paribas activities and customers.

- establish a specific system for monitoring the measures implemented and evaluating their effectiveness.

Comissão Pastoral da Terra and Notre Affaire à Tous v. BNP Paribas (Judicial Court of Paris, France)

Greenpeace Canada Submitted Complaint Against Oil Producers Coalition Alleging False, Misleading Representations in “Let’s Clear the Air” Advertising Campaign

Greenpeace Canada submitted a complaint to the Competition Bureau of Canada in March 2023 alleging that the Pathways Alliance’s “Let’s clear the air” advertising campaign makes false and/or misleading representations to the public. Formed in 2021, the Pathways Alliance (Pathways) is a coalition of six of Canada’s largest oil sands producers: Canadian Natural Resources Limited, Cenovus Energy, ConocoPhillips Canada, Imperial, MEG Energy, and Suncor Energy. Collectively, these six companies produce 95% of Canada’s oil sands production and are responsible for 63% of Canada’s total daily oil production.

Greenpeace Canada alleges that Pathways’ claim that they are actively reducing emissions and helping Canada achieve its climate targets are false and misleading for the following four reasons: (1) Pathways’ net-zero plan fails to incorporate the lifecycle of their production and does not account for more than 80% of their emissions, meaning that their own calculations do not result in them achieving net zero; (2) Pathways members claim to be “making strides toward net zero” but at the same time are expanding their fossil fuel production; (3) Pathways has indicated that the only issues facing their carbon capture and sequestration project are related to financing and regulatory approval but the technologies themselves are speculative; and (4) the representations give the impression that Pathways is a climate leader, but individually and through industry affiliation, Pathways members have advocated, advertised, and/or spoken against climate action in Canada.

Greenpeace Canada has asked the Competition Bureau to have Pathways: (1) remove all the representations about reducing emissions, achieving net zero, cleaning air, and combating climate change; (2) issue a public retraction of these statements; and (3) pay a fine that is the greater of $10 million or 3% of worldwide gross revenues to organizations for the rehabilitation and cleanup of oil sands production. The Competition Bureau has not yet made a determination. Greenpeace Canada v. Pathways Alliance (Competition Bureau of Canada, Canada)

Austria Brought Action Against European Commission Demanding Annulment of Regulation Classifying Fossil Gas and Nuclear Energy Investments as Environmentally Sustainable

On October 7, 2022, Austria brought an action against the European Commission. It demanded the General Court annul Commission Delegated Regulation (EU) 2022/1214 of March 9, 2022, which qualifies investments in fossil gas and nuclear energy as “environmentally sustainable.” In 2020, the European legislature adopted the Taxonomy Regulation (EU) 2020/852 to direct investments toward sustainable projects and activities. Thereby, investments are considered environmentally sustainable if they involve one or several economic activities that qualify as environmentally sustainable under the criteria provided for in the Taxonomy Regulation. In 2021, the European Commission published Commission Delegated Regulation (EU) 2021/2139, which specified technical screening criteria to determine whether an economic activity substantially contributes to climate change adaptation and causes no significant harm to other environmental objectives. In 2022, the Commission amended the delegated legal act and released Commission Delegated Regulation (EU) 2022/1214, which includes specific activities relating to nuclear energy and fossil gas in the list of activities covered by the EU taxonomy. Nuclear energy and fossil gas investments thus qualify as “environmentally sustainable” investments under the Taxonomy Regulation.

Austria raised an action for annulment against Delegated Regulation (EU) 2022/1214 for violating primary and secondary EU law. It relied on 16 pleas in law, eight of which relate to nuclear energy, the other eight to fossil gas. Austria claimed a violation of several provisions of Regulation (EU) 2020/852, based on which Regulation (EU) 2022/1214 was adopted, as well as a violation of other (procedural) requirements and primary law. In concrete terms, the following claims were raised:

First, Austria claimed a breach of procedural rules—allegedly, the Commission did not comply with the principles and procedural rules enshrined in the Taxonomy Regulation and the Interinstitutional Agreement on better law-making. In particular, the Commission wrongly omitted to conduct an impact assessment and public consultation. Also, it did not assess the compatibility of Regulation (EU) 2022/1214 with the European Climate Change Act, as required by Art 6 para 4 of the Act.

Second, Austria asserted that the Commission was not competent to enact Regulation (EU) 2022/1214. According to the requirement of materiality under Art 290 TFEU, the Union legislature would have had to decide to include nuclear energy in the taxonomy. It did not adopt such a decision; therefore, Austria contended that nuclear energy does not qualify as environmentally sustainable under the Taxonomy Regulation. Further, it considered the precautionary principle to be violated.

With regard to nuclear energy, Austria asserted that the qualification of nuclear energy as “environmentally sustainable” violates the “do no significant harm-principle” (DNSH principle) pursuant to Art 17 Regulation (EU) 2020/852 as well as the precautionary principle under primary law. The Commission allegedly failed to recognize the risk of significantly impairing protected environmental objectives due to severe reactor accidents and high-level radioactive waste. In addition, Austria asserted a violation of individual requirements for technical screening criteria under Art 19 Regulation (EU) 2020/852 as well as a violation of Art 10 para 2 and Art 11 Regulation (EU) 2020/852. Arguably, nuclear energy does not meet the criteria set out in Art 10 para 2 Regulation (EU) 2020/852 and does not substantially contribute to climate change adaptation as required by Art 11 Regulation (EU) 2020/852.

In terms of fossil gas, Austria asserted a violation of the DNSH principle since qualifying fossil gas as “environmentally sustainable” aggravates climate change. Besides, Austria considered Art 10 para 2 Regulation (EU) 2020/852 and the precautionary principle to be violated as technologically and economically feasible low-carbon alternatives to fossil gas already exist. In addition, Austria claimed that several of the requirements for technical screening criteria according to Art 19 Regulation (EU) 2020/852 were violated and brought forward a violation of Art 11 Regulation (EU) 2020/852 as economic activities relating to fossil gas do not substantially contribute to climate change adaptation. Austria v. European Commission (General Court, E.U.)

Environmental Organizations Filed Challenges to UK Government Decision to Grant Planning Permission for New Coking Coal Mine

In January 2023, two environmental organizations—Friends of the Earth (FoE) and South Lakeland Action On Climate Change (SLACC)—filed public law challenges to the UK Government’s decision to grant planning permission for a new coking coal mine in the UK. The decision to grant planning permission was made in December 2022 by the Secretary of State (SoS) for Levelling Up, Housing and Communities, on the recommendation of a planning inspector after a planning inquiry held in 2021.

FoE challenged the decision as unlawful on the following grounds:

- The SoS’s conclusion that the mine would be a “net-zero” mine for the purpose of reaching the UK’s Sixth Carbon Budget (covering the period of 2033-37, and as established under the UK’s Climate Change Act 2008) was unlawful. International carbon offset credits, which the mining company undertook to buy to offset the mine’s residual emissions, do not count towards the UK’s carbon budgets.

- The SoS failed to lawfully address the international impact of this decision, despite the evidence given on this issue by highly qualified people, like the former chair of the Intergovernmental Panel on Climate Change.

- The SoS erred in his approach to the extent to which the coal would “substitute” for other coal in the global market or be “additional” to it, resulting in the unlawful conclusion that there would be no net emissions increase because of the mine.

- FoE also reserved the right to argue a point on the SoS’s approach to downstream emissions, depending on the UK Supreme Court’s decision in R (Finch) v Surrey County Council & ors, to be heard in June 2023.

SLACC challenged the decision as unlawful on the following grounds:

- The SoS failed to deal with the principal issue of whether or not there would be perfect substitution, which would determine the extent of the climate impact of the mine.

- The SoS failed to deal with the principal issue of the international impact of granting planning consent.

- The SoS incorrectly determined whether downstream emissions are indirect significant environmental effects of the mine.

- The SoS applied a different threshold to the opposing parties’ evidence and arguments at the planning inquiry, and imposed the unlawful burden on the claimant of disproving the mine company’s case.

In April 2023, the High Court refused both claimants permission to proceed to a full hearing. The claimants will ask the court to reconsider that refusal at a permission hearing, likely to be held in May 2023. Friends of the Earth v. Secretary of State for Levelling Up, Housing and Communities; and South Lakeland Action on Climate Change v. SSLUHC (High Court of Justice, England and Wales, U.K.)

Climate Group Sued UK Government Over Decision to Disregard Net-Zero Standards in Construction of Planned Garden Village

In April 2023, rights and climate collective Rights: Community: Action (RCA) issued a legal challenge to a decision by two of the government’s planning inspectors. The planning inspectors had reviewed the West Oxfordshire District Council’s Area Action Plan (AAP) for a planned new garden village in Salt Cross and decided that the village does not need to be built to the net-zero standards suggested by the Council.

The inspectors questioned whether the policies in the AAP relating to net-zero carbon development, zero waste, green infrastructure, and protecting and enhancing environmental assets were justified, effective, and consistent with national and local policy. They said the standards demanded by the AAP are significantly higher than those required in the 2013 Building Regulations and conflict with national policy on energy efficiency contained in a 2015 Written Ministerial Statement (WMS). The policies set out in the AAP include that the village should be fossil fuel free, and able to supply 100% of the energy needed from on-site renewable energy sources.

RCA argues that:

- The WMS is out of date and has been overtaken by law and policy since 2015;

- The inspectors misinterpreted the WMS, and neither the WMS nor national policy conflict with the AAP;

- The zero carbon homes policy was abandoned against what is written in the WMS;

- The inspectors’ misinterpretation also affected the approach to the question of whether there was a sound evidence base to justify the zero carbon homes policy.

Rights: Community: Action v. Secretary of State for Levelling Up, Housing and Communities (Action Plan for Salt Cross Garden Village) (High Court of Justice, England and Wales, U.K.)

NGO Challenged Approval of UK Coal Mine Expansion that Would Increase GHG Emissions

In 2020, private company Energybuild Ltd applied to the UK Coal Authority for a coal mine extension license in Aberpergwm, Wales. Emissions relating to the extension are estimated to be around 100 million tons of CO2 from combustion of the coal and 1.17 million tons of methane gas, until the license expires in 2039. In response, in 2021, Coal Action Network, a group that aims to end coal use within the UK, started a campaign, calling on Welsh and UK ministers to intervene against the Coal Authority and stop the coal mine expansion. Yet ministers of the Welsh and the UK-wide governments were in disagreement over who had the jurisdiction to make the decision to stop the coal mine extension.

In January 2022, the Coal Authority approved the license, resulting in a public law challenge by Coal Action Network. In July 2022 that challenge was given permission to proceed to a full hearing. Coal Action Network alleges:

1. Welsh ministers had the statutory power to refuse to approve the authorization.

2. The Coal Authority interpreted its own statutory powers too narrowly. It had broad discretion to consider any relevant matters when making licensing decisions, and it did have discretion to refuse to approve this authorization.

The hearing took place in March 2023, with judgment reserved. CAN (Coal Action Network) v. Coal Authority and Welsh Ministers (High Court of Justice, England and Wales, U.K.)

Climate Groups Challenged UK Government’s “Jet Zero” Strategy as Violating Climate Change Act, Public Law Principles

In October 2022, climate charity Possible as well as Group for Action on Leeds Bradford Airport (GALBA) filed separate claims for judicial review in the High Court for England and Wales against the Secretary of State for Transport (SoS Transport), challenging the UK government’s “Jet Zero” strategy. The “Jet Zero” strategy is the UK’s strategy to decarbonize the aviation sector to achieve net zero in aviation by 2050.

The strategy is alleged to:

- breach the UK’s Climate Change Act of 2008 since the SoS Transport did not ensure that it would enable the UK’s carbon budgets to be met, which would result in a failure to deliver net zero;

- breach public law principles, because the SoS Transport a) departed from advice given by the Climate Change Committee (the UK’s statutory advisory body on climate change) on reducing demand without giving lawful reasons, b) did not lawfully consult on the strategy, c) failed to take into account emissions other than CO2 caused by flights.

GALBA makes an additional claim on the effects of the strategy on local planning applications for airports. It was announced in March 2023 that the two cases will proceed to a joint hearing. Possible v. Secretary of State for Transport; and GALBA v. SST (High Court of Justice, England and Wales, U.K.)

UK Decision to Permit Construction of Major New Road Challenged for Failure to Consider Cumulative Environmental Effects, Including Increased Carbon Emissions

In January 2023, the Campaign to Protect Rural England (CPRE), Peak District and South Yorkshire branch, launched a legal challenge against the Secretary of State for Transport’s decision in November 2022 to grant development consent for a major new dual carriageway known as the trans-Pennine link road. The consent was granted via the A57 Link Roads Development Consent Order 2022. When making this Order the Transport Secretary accepted the scheme would “result in an increase in carbon emissions” but concluded that the “proposed development is consistent with existing and emerging policy requirements to achieve the UK’s trajectory towards net zero.”

The challenge alleges the Transport Secretary failed to consider the environmental impacts of the scheme, including cumulative carbon emissions. Challenges of this nature require the court’s permission to proceed to trial, with permission applications usually dealt with early on. Here, however, the court has ordered a “rolled up” hearing, where both the permission application and the substantive hearing will be heard together. It is not known whether a date has been set for the rolled up hearing. Construction, due to start in Spring 2023, has been put on hold due to the legal challenge. Campaign to Protect Rural England v Secretary of State for Transport (challenge to the A57 Link Roads Development Consent Order 2022) (High Court of Justice, England and Wales, U.K.)

ClientEarth Filed Claim in UK Alleging Ithaca Energy Did Not Adequately Disclose Climate Risks as Required by EU Regulation

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 satisfied it meets the requirements of EU Regulation 2017/1129 (which remains UK law post-Brexit). That Regulation, aimed at investor protection, requires companies to disclose certain specific and material risks they face.

The FCA approved Ithaca’s prospectus. This resulted, in February 2023, in ClientEarth issuing a claim for judicial review. ClientEarth argued the climate risks associated with Ithaca’s business were not adequately disclosed, putting the FCA in breach of the Regulation when approving the prospectus. In particular:

- Although Ithaca’s prospectus includes a climate-related risk factor, the risks disclosed are of too general a nature to leave investors fully informed or to meet the Regulation requirements. Ithaca does not appear to explain how these risks affect its business specifically, or how significant these risks are for the company.

- The prospectus does not address the apparent conflict between Ithaca’s intention to develop new fossil fuel assets that would operate for decades and the International Energy Agency’s conclusion that no new fuel fossil fuel infrastructure can be built if the world is to meet a 1.5℃ warming target.

- Ithaca fails to explain how its business model and financial prospectus would need to change, or be affected, if the Paris Agreement goals are to be achieved and what impact that would have on their key assets, which include Cambo and Rosebank.

- The above information is vital to investors if they are to make an informed assessment of the company’s financial position and therefore should have been provided in the prospectus.

The High Court’s permission is required for the claim to proceed to trial. A decision on permission is pending. ClientEarth v. Financial Conduct Authority (Ithaca Energy plc listing on London Stock Exchange) (High Court of Justice, England and Wales, U.K.)

Greenpeace and Uplift Challenged UK Environmental Assessment and Other Actions for Failure to Assess Downstream Emissions from Oil and Gas

In September 2022:

- The Secretary of State adopted the “Climate Compatibility Checkpoint.” The purported aim of this policy was to ensure that, before a new North Sea oil and gas licensing round is offered, “the compatibility of future licensing with the UK’s climate objectives is evaluated.”

- The Secretary of State’s officials completed the fourth offshore energy strategic environmental assessment (OESEA4). This was to enable, among other activities, further offshore oil and gas licensing in the North Sea. It was produced pursuant to the Environmental Assessment of Plans and Programmes Regulations 2004.

- The Secretary of State also endorsed a further licensing round being launched by the North Sea Transition Authority (NSTA, the trading name of the Oil and Gas Authority).

- The NSTA announced it was satisfied a further licensing round met the Checkpoint’s requirements.

In October 2022, the NSTA, pursuant to its powers under Part 1 of the Petroleum Act 1998, launched the 33rd Offshore Oil and Gas Licensing Round. This is expected to result in the grant of a further 100 licenses.

As a result of the above, in December 2022, separate claims for judicial review were launched by environmental charities Greenpeace and Uplift. In April 2023, both claims were granted permission to proceed to trial. It is not known whether a trial date has been set.

Greenpeace contends that the government did not take account of downstream emissions, i.e., from ultimate use of the oil and gas, for example in fueling cars. Greenpeace states that “this is a glaring omission from the government’s decision making, including its climate compatibility check.” In its written response the government argued there was an “insufficient causal connection between the extraction of oil and gas and the downstream emissions arising from its consumption to enable a meaningful assessment of the environmental effects of the latter.”

Uplift argues:

- The adoption of OESEA4 was unlawful because, among other matters, the Secretary of State failed to take into account expert advice on industry targets, failed to assess downstream emissions, and failed to properly assess reasonable alternatives.

- The endorsement of the 33rd licensing round was unlawful because the Secretary of State failed to provide any reasons for a new licensing round being compatible with the Checkpoint and the UK’s climate objectives.

- The decision to adopt the Checkpoint was unlawful because it excluded a test that would have required the Secretary of State to consider downstream emissions on the basis of reasons that were legally irrelevant and irrational. A further test, which would have required consideration of the “global production gap” was also unlawfully excluded, on the basis of an erroneous interpretation of the obligations imposed by the Paris Agreement.

To the extent both challenges include arguments on the assessment of end-use emissions, they will potentially be impacted by outcome of the appeal in R (Finch on behalf of the Weald Action Group & Others) v. Surrey County Council (& Others). The Supreme Court will hear that appeal on June 21, 2023. Greenpeace Ltd v (1) Secretary of State for Business, Energy and Industrial Strategy and (2) the Oil and Gas Authority; and Uplift v (1) SSBEIS and (2) the OGA (North Sea oil and gas licensing) (High Court of Justice, England and Wales, U.K.)

Renewables Developer Sued French Government for Failure to Implement Renewable Energy Development

Based on its assessment that France was not following a trajectory that would enable it to meet its climate objectives, on October 5, 2022, Eolise submitted to the French Government 10 legislative and regulatory proposals concerning renewable energies. The Government has refused to consider these proposals (the lack of answer is administratively considered an implicit refusal). Eolise argues that the so-called “renewable energy acceleration law” that has been subsequently approved will not allow the development of renewable energies in France and the achievement of the planned objectives.

Eolise argues that the law does not address the concrete and indispensable measures to implement the objective to accelerate the transition to renewable energies law and has decided to sue the French government, asking the Council of State to annul the implicit refusal to consider its 10 propositions.

Eolise asks the Council of State to order the French State to take all useful measures in favor of the development of renewable energies to achieve the binding objectives set by the applicable laws and treaties and, even more, to accelerate the development of these energies in the public interest, within a maximum period of six months. A financial penalty for every six months of delay has been requested. Eolise v. France (Council of State, France)

NGOs Sued Food Company in France for Inadequately Addressing Risks Related to its Plastic Pollution

In September 2022, NGOs ClientEarth, Surfrider Foundation Europe, and Zero Waste France sent a notice of intent to sue to Danone. The companies claimed that the company does not adequately address the risks related to the plastic pollution it produces. Considering the answer by Danone to be insufficient and non-satisfactory, the NGOs decided to bring suit before the Judicial Court of Paris.

The notice of intent to sue—which was the first, and necessary, pre-trial stage—and the summons filed before the Judicial Court of Paris claim Danone violated the loi sur le devoir de vigilance of 2017 (Law on the duty of vigilance; incorporated in articles L. 225-102-4 and 225-102-5 of the French Commercial Code).

The law on the duty of vigilance provides that specific companies (those who employ “at least five thousand employees within the company and its direct and indirect subsidiaries, whose head office is located on French territory, or that has at least ten thousand employees in its service and in its direct or indirect subsidiaries, whose head office is located on French territory or abroad”) must establish a plan to prevent the violation of human rights and environmental damage that may occur in the course of their business. The plan must “include reasonable vigilance measures to identify risks and prevent serious violations of human rights and fundamental freedoms, the health and safety of individuals and the environment, resulting from the activities of the company and those of the companies it controls ... as well as from the activities of subcontractors or suppliers with whom there is an established business relationship, when these activities are related to that relationship.” If the plan is not correctly drafted or is inadequate to measure and prevent these risks, the company is liable for the damages that it might have prevented. Anyone with a legitimate interest can also ask for injunctive relief to force the company to comply with the law, a groundbreaking preventative mechanism for French legal proceedings.

NGOs claim that the company, which is among the top 10 biggest plastic polluters worldwide, uses far too much plastic and has never adopted adequate measures to address the harm related to its use of plastics. Plastics are present throughout its supply chain, with a huge amount used to package its products, including water bottles and yogurt pots.

The NGOs seek an injunction to force the company to:

1. Map the impacts its use of plastics has on the environment, climate, health, and human rights from production to end-of-life.

2. Provide a complete assessment of its plastic footprint, including plastics used in producing the products it sells, plastics used in logistics and promotions, and plastic packaging.

3. On the basis of this assessment, put together a “deplastification” plan with quantified and dated objectives and act on it. 

ClientEarth, Surfrider Foundation Europe, and Zero Waste France v. Danone (Judicial Court of Paris, France)

Coalition of Swiss-Based Civil Society Organizations Filed Claim Against FIFA for Making Misleading Carbon-Neutral Claims About 2022 World Cup

In a concerted action with similar actions filed in the UK, France, Belgium, and the Netherlands, Klima-Allianz, a Swiss-based coalition of 140 civil society organizations, filed a claim at the False Advertising Commission against FIFA claiming that FIFA’s advertising of the 2022 Football World Cup in Qatar as carbon neutral was misleading athletes, football fans, and the five billion people expected to follow the event (which was held from November 20, 2022 until December 18, 2022 as the first “winter” world cup ever). Counsel for the case are Avocat.e.s pour le Climat. The Fair Advertising Commission is a non-judicial body that examines complaints alleging violations of the Swiss Fairness Principles in Commercial Communication. KlimaAllianz v. FIFA (Fair Advertising Commission, Switzerland)