May 2024 Updates to the Climate Case Charts

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

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #182:

FEATURED U.S. CASES

Delaware Supreme Court Denied State’s Request for Interlocutory Review of Decision Limiting Climate Claims Against Fossil Fuel Industry Defendants

The Delaware Supreme Court denied the State of Delaware’s application for interlocutory review of a trial court decision that narrowed the scope of claims the State could bring against fossil fuel industry defendants to hold them liable for damages resulting from climate change. The Supreme Court agreed with the trial court that interlocutory review was not warranted. The Supreme Court concluded that no “[e]xceptional circumstances” existed; that the potential benefits of interlocutory review did not outweigh the “inefficiency, disruption, and probable costs” of interlocutory appeal; and that interlocutory review “would further complicate and delay an already complex litigation.” State v. BP America Inc., No. 54, 2024 (Del. May 8, 2024)

D.C. Circuit Upheld EPA’s Reinstatement of Federal Preemption Waiver for California Vehicle Standards

The D.C. Circuit Court of Appeals denied petitions for review challenging the U.S. Environmental Protection Agency’s (EPA’s) 2022 reinstatement of the 2013 waiver under the Clean Air Act of federal preemption for California’s Advanced Clean Car Program regulations. The California regulations included greenhouse gas emissions requirements for automobiles for Model Years 2017 to 2025 and a requirement that around 15% of manufacturers’ fleets be zero-emissions vehicles by Model Year 2025. The D.C. Circuit found that neither state petitioners nor fuel petitioners (entities and trade associations involved in the production or sale of liquid fuels) had standing for statutory claims because they failed to allege that a favorable decision would redress their alleged economic injuries. The court said there was no basis to conclude that third-party automobile manufacturers “would, in fact, change course with respect to the relevant model years” if the court vacated the waiver. The D.C. Circuit therefore did not consider the merits of the fuel petitioners’ argument that California’s regulations did not meet the Clean Air Act’s criteria for a waiver of preemption or the merits of the state petitioners’ argument that the waiver was contrary to the Energy Policy and Conservation Act’s preemption of state fuel economy standards. The D.C. Circuit found that the state petitioners did have standing for their constitutional claim that the waiver provision of the Clean Air Act violated the “equal sovereignty principle.” The court, however, rejected this claim on the merits, concluding that the principle did not extend to laws enacted under Congress’s Commerce Clause power. Ohio v. EPA, No. 22-1081 (D.C. Cir. Apr. 9, 2024)

U.S. DECISIONS AND SETTLEMENTS

Ninth Circuit Directed District Court to Dismiss Juliana v. United States

On May 1, 2024, the Ninth Circuit Court of Appeals granted the federal government’s petition for writ of mandamus and directed the federal district court for the District of Oregon to dismiss Juliana v. United States for lack of Article III standing, without leave to amend. The Ninth Circuit noted that it had held in 2020 that the plaintiffs lacked standing and had remanded to the district court with instructions to dismiss the case on that basis. The Ninth Circuit further stated that mandamus was appropriate remedy when “sought on the ground that the district court failed to follow the appellate court’s mandate.” Although the district court had concluded that amendment of the complaint “was not expressly precluded” by the Ninth Circuit’s mandate, the Ninth Circuit’s May 1 order stated that “[n]either the mandate’s letter nor its spirit left room for amendment.” The Ninth Circuit also disagreed with the district court’s conclusion that an intervening change in the law made it permissible to allow the plaintiffs to amend their complaint. The Ninth Circuit found that the U.S. Supreme Court decision cited by the district court did not change the law with respect to prospective relief, and therefore did not affect the redressability of the plaintiffs’ claims.

In April, the federal district court for the District of Oregon had denied the federal government’s motion to stay proceedings while the Ninth Circuit considered the government’s petition for writ of mandamus. In a supplemental order issued the same day, the district court responded to the Ninth Circuit’s invitation to address the petition for writ of mandamus. The district court stated that although the case raised “legal issues of first impression,” the matters the district court had addressed were “the bread-and-butter of daily trial court work: injury, causation, and redressability under Article III; justiciability; viability of claims under Federal Rules of Procedure 12(b); standards for injunctive and declaratory relief—foundational inquiries necessary to proceed to any factfinding phase reaching the heart of plaintiffs’ novel claims.” The district court maintained that the issues raised in the mandamus petition (whether the district court violated the writ of mandate, and the district court’s findings that the plaintiffs had standing and had stated plausible due process and public trust doctrine claims) were “better addressed through the ordinary course of litigation” than in a petition for writ of mandamus. United States v. U.S. District Court for the District of Oregon, No. 24-684 (9th Cir. May 1, 2024); Juliana v. United States, No. 6:15-cv-01517 (D. Or. Apr. 19, 2024)

D.C. Circuit Rejected Challenges to FERC’s NEPA Review of Natural Gas Infrastructure

The D.C. Circuit Court of Appeals found that the Federal Energy Regulatory Commission (FERC) properly applied the National Environmental Policy Act (NEPA) when it issued a certificate of public convenience and necessity for the Evangeline Pass Expansion Project, which included expanded pipelines, compression facilities, and meter stations in the southeastern United States to transport more natural gas. First, the court found that the environmental impact statement did not exclude “connected” actions, rejecting the petitioner’s claim that the NEPA review’s scope should have included four other natural gas projects. Second, the court agreed with FERC that NEPA did not require consideration of indirect environmental effects of exported gas that would flow through the project’s pipeline system. The court reasoned that Congress gave export authorization to the U.S. Department of Energy, not FERC, and cited precedent holding that FERC did not have to consider indirect effects of actions beyond its delegated authority. Third, the D.C. Circuit ruled that FERC was not required to use the social cost of carbon tool. The D.C. Circuit also found that FERC reasonably denied municipal petitioners’ request for a future credit on existing rates. Alabama Municipal Distributors Group v. Federal Energy Regulatory Commission, No. 22-1101 (D.C. Cir. Apr. 30, 2024)

Ninth Circuit Rejected Challenges to Sufficiency of Climate Change Analysis in Review of Glen Canyon Dam Water Release Plan

In an unpublished decision, the Ninth Circuit Court of Appeals affirmed the grant of summary judgment to the U.S. Department of the Interior and other defendants in conservation groups’ challenge to the NEPA review of the Long-Term and Experimental Management Plan (LTEMP), “a twenty-year adaptive framework to manage the monthly, daily, and hourly water releases from Glen Canyon Dam” on the Colorado River in Arizona. First, the Ninth Circuit agreed with the federal district court for the District of Arizona that the purpose and need statement in the final environmental impact statement (FEIS) was reasonable, rejecting an argument that the statement was too narrow because it did not include “the need to adaptively manage Glen Canyon Dam under all projected climate change conditions.” Second, the Ninth Circuit found that the FEIS examined a reasonable range of alternatives that allowed evaluation of “multiple, reasonable plans for the timing of dam releases.” The Ninth Circuit said NEPA did not require consideration of alternatives that would reduce or eliminate hydropower generation or “run afoul of the LTEMP’s limited purpose of creating monthly, daily, and hourly water release schedules.” Third, the Ninth Circuit found that the FEIS took a hard look at the LTEMP’s environmental consequences in light of climate change by “reasonably focus[ing] its climate-change analysis on comparing the performance and effect of each of the seven alternatives under various climate change conditions, rather than providing a full-fledged assessment of water availability in the Colorado River Basin.” The Ninth Circuit said the Department of the Interior’s reliance on historical data in the climate analysis did not render the analysis “stale.” The court also found that the Interior Department “did not arbitrarily omit relevant worst-case climate change conditions” from its climate change assessment because even without the worse-case conditions the FEIS climate change model “served its purpose as a tool to compare the relative robustness of the alternatives under changing climate conditions.” Fourth, although the Ninth Circuit found that the Interior Department violated NEPA by failing to explain its decision not to prepare a supplemental environmental impact statement to consider new studies that the conservation organizations said undermined the FEIS’s climate change analysis, the Ninth Circuit concluded the error was harmless because there was no evidence the studies contained information “not already considered” or that would “materially affect” the Interior Department’s decision. Save the Colorado v. U.S. Department of the Interior, No. 23-15247 (9th Cir. Apr. 24, 2024)

First Circuit Upheld Federal Approval for Construction of Vineyard Wind

The First Circuit Court of Appeals upheld the U.S. Bureau of Ocean Energy Management’s (BOEM’s) approval of the construction of the Vineyard Wind offshore wind project. Nantucket residents argued on appeal that the biological opinion prepared in conjunction with the project violated the Endangered Species Act by concluding that the project likely would not jeopardize the endangered North Atlantic right whale. The residents also argued that BOEM violated NEPA by relying on the biological opinion. The First Circuit rejected the residents’ critiques of the biological opinion, including an argument that the opinion did not properly analyze the right whale’s current status and environmental baseline because it ignored a recent study “that highlighted the growing importance of southern New England waters for right whale survival” (because of rising global temperatures). The First Circuit found that the biological opinion “repeatedly acknowledged that right whales are increasingly present in southern New England waters.” The First Circuit treated as waived challenges to the environmental impact statement not related to the biological opinion. The residents’ challenges before the district court had included that analysis of the project’s impacts on greenhouse gas emissions was inadequate. Nantucket Residents Against Turbines v. U.S. Bureau of Ocean Energy Management, No. 23-1501 (1st Cir. Apr. 24, 2024)

Ninth Circuit Narrowed Scope of Injunction Restricting Montana’s Authorizations of Wolf Trapping and Snaring

The Ninth Circuit Court of Appeals affirmed in part a district court’s granting of injunctive relief preventing the State of Montana from authorizing wolf trapping and snaring in certain places and at certain times of year when grizzly bears would not be denning. The Ninth Circuit found that the district court applied the proper preliminary injunction standard and that the district court did not abuse its discretion when determining that the plaintiffs raised a serious question on the merits as to whether Montana’s recreational wolf trapping and snaring regulations would cause unlawful “take” of grizzly bears. The Ninth Circuit further found that “it was plausible for the district court to find a reasonably certain threat of imminent harm to grizzly bears should Montana’s wolf trapping and snaring season proceed as planned,” including because the plaintiffs’ evidence showed that nearly 40% of grizzly bears would be active during the proposed wolf trapping season due in part to the warming of temperatures and the availability of vegetal food earlier and later in the year. The Ninth Circuit found that the temporal scope of the injunction was supported but that it was geographically overbroad. The Ninth Circuit also found that the injunction should not have applied to wolf trapping and snaring related to government research. One judge dissented in part, writing that the preliminary injunction should have been vacated entirely. Flathead-Lolo-Bitterroot Citizen Task Force v. State of Montana, No. 23-3574 (9th Cir. Apr. 23, 2024)

Fifth Circuit Upheld Federal Approval for Deepwater Oil Port in Gulf of Mexico

The Fifth Circuit Court of Appeals found that federal respondents complied with NEPA and the Deepwater Port Act when they approved a license for construction and operation of the Sea Port Oil Terminal, a deepwater port off the Texas coast that would store and export crude oil. The Fifth Circuit concluded that at least one of environmental groups challenging the approval had standing but found that the respondents’ NEPA review had adequately analyzed issues raised by the groups, including oil spill risks, a worst-case oil spill, impacts on Rice’s whale, air quality impacts, and alternatives. Regarding alternatives, the environmental groups had argued, among other things, that the respondents should have considered a reduced-capacity option that would reduce ozone air pollution, spill risk, and climate pollution. The Fifth Circuit concluded that NEPA did not require consideration of alternatives that did not achieve the applicant’s goals. The court also found that the respondents’ consideration of a no-action alternative—which assumed other ports would export the same volumes of oil in the project’s absence—did not violate NEPA standards. Under the Deepwater Port Act, the Fifth Circuit held that the groups could not bring a claim that the respondents violated statutory deadlines and found that the groups did not establish that the respondents failed to determine whether the project was consistent with the U.S.’s energy sufficiency goals. Citizens for Clean Air & Clean Water in Brazoria County v. U.S. Department of Transportation, No. 23-60027 (5th Cir. Apr. 4, 2024)

D.C. Circuit Said FERC’s Extensions of Deadlines for Natural Gas Infrastructure Projects Were Reasonable

The D.C. Circuit Court of Appeals denied petitions for review challenging the Federal Energy Regulatory Commission’s extensions of construction deadlines for the 99-mile Northern Access Pipeline in Pennsylvania and New York and for improvements to an existing liquefied natural gas terminal on Corpus Christi Bay in Texas and a related pipeline. The D.C. Circuit found that FERC’s decisions were reasonable and adequately supported by record evidence. Regarding the Northern Access Pipeline, the D.C. Circuit rejected the petitioner’s argument that FERC acted arbitrarily and capriciously by failing to consider the impacts of New York’s 2019 climate law on the market need for the project, as well as the related argument that the 2019 law’s effects necessitated preparation of a supplemental environmental impact statement. Sierra Club v. Federal Energy Regulatory Commission, No. 22-1233 (D.C. Cir. Mar. 29, 2024); Sierra Club v. Federal Energy Regulatory Commission, Nos. 22-1235, 22-1267 (D.C. Cir. Mar. 29, 2024)

Magistrate Recommended that Oregon County’s Case Against Fossil Fuel Companies Be Returned to State Court; Also Recommended Remand of Metropolitan Service District’s Petition for Pre-Suit Discovery

A magistrate judge in the federal district court for the District of Oregon recommended that the court grant the County of Multnomah’s motion to remand to state court its lawsuit seeking damages from fossil fuel companies for climate change’s impacts on public health and infrastructure. The magistrate judge concluded that the Ninth Circuit’s opinions in other climate change cases brought by local governments against fossil fuel companies foreclosed the companies’ arguments that there was federal question jurisdiction. The magistrate further concluded that there was no diversity jurisdiction because a defendant that was licensed to sell fuel products in Oregon had not been fraudulently joined. The magistrate judge also rejected the contention that there was diversity jurisdiction because that defendant had been “procedurally misjoined.” In a separate decision, the magistrate judge recommended that the court remand to state court a petition to perpetuate the testimony of a former Exxon Mobil consultant. The petition was filed in December 2023 by Metro, a “metropolitan service district” encompassing Multnomah, Washington, and Clackamas Counties. Metro is considering bring a similar suit against fossil fuel industry defendants, and filed the petition because Metro believed the testimony of the consultant, who was in poor health, was “uniquely important” to the potential litigation. The magistrate concluded that the petition was not a “civil action” that was removable to federal court. County of Multnomah v. Exxon Mobil Corp., No. 3:23-cv-01213 (D. Or. Apr. 10, 2024); Metro v. Exxon Mobil Corp., No. 3:24-cv-00019 (D. Or. Apr. 10, 2024)

Montana Federal Court Said New NEPA Climate Guidance Warranted Extension of Deadline to Complete Environmental Review for Coal Mine Expansion

The federal district court for the District of Montana granted in part federal defendants’ motion to extend the deadline for revising a final environmental impact statement and issuing a final decision regarding the expansion of the Rosebud coal mine. The court issued a decision in September 2022 finding that the defendants’ review of the expansion did not satisfy NEPA requirements, including because the defendants failed to take a hard look at greenhouse gas emissions and their costs. The September 2022 decision deferred vacatur of the approval of the proposed expansion until April 30, 2024. In response to the defendants’ request for a 14-month extension, the court found that relief from the deadline was warranted because the “the novelty of the greenhouse gas analysis” and Council on Environmental Quality guidance concerning greenhouse gases and climate change that was published after the September 2022 decision qualified as “unforeseen circumstances.” The court concluded, however, that a 14-month extension would be “disproportionate to the reasons for the modification of the deadline” and instead granted a nine-month extension. Montana Environmental Information Center v. Haaland, No. 1:19-cv-00130 (D. Mont. Apr. 2, 2024)

Fish and Wildlife Service Agreed to Revisit Listing Decision for Bridled Darter

The federal district court for the District of Columbia so-ordered a joint stipulated settlement agreement and order that resolved the Center for Biological Diversity’s lawsuit challenging the U.S. Fish and Wildlife Service’s (FWS’s) 12-month finding that listing of the bridled darter under the Endangered Species Act was not warranted. The complaint’s allegations included that the bridled darter faces “intensifying threats” from climate change and that the FWS’s use of a 20-year “foreseeable future” timeframe was not supported. In the settlement agreement, FWS said it believed it was “prudent” to re-evaluate the bridled darter’s status and agreed to submit a new 12-month finding as to whether listing is warranted by November 18, 2026. FWS said that if it determined, based on newly available data, that the bridled darter should be split into two separate species, FWS intended to make a finding for each listable entity. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 1:23-cv-02866 (D.D.C. Apr. 3, 2024)

D.C. Federal Court Denied Motion to Stay Approvals for Offshore Wind Facility

The federal district court for the District of Columbia denied plaintiffs’ motion to stay federal approvals for the Revolution Wind Farm off the coast of Rhode Island and the related cable project. The court concluded that the motion failed because the plaintiffs failed to comply with a local rule requiring that parties meet and confer with their opponents prior to filing a nondispositive motion. Green Oceans v. U.S. Department of the Interior, No. 1:24-cv-00141 (D.D.C. Apr. 30, 2024)

BLM Agreed to Conduct Additional Environmental Analysis for Drilling Authorizations in Mancos Shale/Gallup Sandstone Formation

The federal district court for the District of New Mexico granted a joint motion to dismiss a lawsuit originally filed in 2019 that challenged the U.S. Bureau of Land Management’s (BLM’s) NEPA review for applications for permit to drill (APDs) in the Mancos Shale/Gallup Sandstone formation of the San Juan Basin. In 2023, the Tenth Circuit found that the NEPA review was deficient, including because the agency failed to take a hard look at direct, indirect, and cumulative impacts on greenhouse gas emissions. In the settlement pursuant to which the plaintiffs’ claims were dismissed, BLM agreed to reconsider the approximately 199 APDs for which the Tenth Circuit found deficiencies and to prepare new or supplemental NEPA documentation. BLM also temporarily paused development authorized by certain APDs challenged in the lawsuit. Diné Citizens Against Ruining the Environment v. Haaland, 1:19-cv-00703 (D.N.M. Apr. 1, 2024)

In Suit About Climate Preparedness of New Haven Terminal, Connecticut Federal Court Said Shell Must Respond to Many of Plaintiff’s Narrowed Discovery Requests

In a citizen suit alleging that a bulk oil storage terminal on New Haven Harbor had not been prepared for the impacts of severe weather and climate change in violation of federal environmental laws, the federal district court for the District of Connecticut granted in part and denied in part plaintiff Conservation Law Foundation’s (CLF’s) motion to compel Shell Oil Co. to comply with 39 discovery requests. The court found that CLF had “reasonably tailored” its requests for information about what the defendants do at their other facilities by limiting the number of facilities to 15 and by only asking about coastal facilities that store petroleum in bulk and that have certain risk profiles. The court also found that the defendants did not support “undue burden” and “lack-of-proportionality” objections. The court said it was “simply implausible” that the defendants could not identify its “coastal” facilities or its bulk petroleum storage facilities and that, even if their systems were deficient, the defendants could not rely on “obsolescence” as a basis for undue burden or lack of proportionality. The court also said that the defendants’ arguments regarding the burdens of collecting and producing responsive information did not account for CLF’s narrowing of its requests. In addition, the court concluded that pre-2017 documents would be relevant to at least some claims. The court found that a request for one category of the defendants’ climate change assessments was facially overbroad and unduly burdensome but that requests for design standards and adaptation plans applicable to the New Haven terminal were not. Conservation Law Foundation v. Shell Oil Co., No. 3:21-cv-00933 (D. Conn. Mar. 29, 2024)

Federal Court Said Plaintiff Adequately Alleged Claim Under California Law Against Delta for Carbon-Neutrality Representation 

The federal district court for the Central District of California held that the Airline Deregulation Act did not preempt claims that Delta Air Lines, Inc.’s allegedly false carbon-neutrality representations violate California laws. The court also found that the plaintiff adequately stated a claim under California’s Consumers Legal Remedies Act with allegations that vendors of voluntary carbon credits based their certifications on fraudulent projections of carbon reduction and that Delta either knew or should have known that the certifications were not accurate. The court granted dismissal of claims under California’s False Advertising Law and Unfair Competition Law with leave to amend, finding that the plaintiff failed to establish standing for injunctive relief under those laws because she did not allege any intent to purchase flights from Delta in the future. Berrin v. Delta Air Lines, Inc., No. 2:23-cv-04150 (C.D. Cal. Mar. 28, 2024)

Missouri Federal Court Dismissed Greenwashing Lawsuit Against Nike

The federal district court for the Eastern District of Missouri dismissed a lawsuit in which a plaintiff alleged that she purchased products from Nike’s “Sustainability Collection” at a premium in reliance on Nike’s allegedly false representations that the products were sustainable and made with recycled and organic materials. The plaintiff alleged that Nike marketed the Sustainability Collection as supporting its “journey toward zero carbon and zero waste.” The court found that the plaintiff failed to plausibly allege that the products were not made with any recycled or organic fibers. The court further found that the plaintiff did not plausibly plead that she acted as a reasonable consumer would in light of all circumstances as required under the Missouri Merchandising Practices Act. Ellis v. Nike USA, Inc., No. 4:23-cv-00632 (E.D. Mo. Mar. 28, 2024)

Louisiana Federal Court Said States and Three Louisiana Parishes Had Standing for Challenge to New Methodology for Calculating National Flood Insurance Program Premiums but Denied Preliminary Injunction

The federal district court for the Eastern District of Louisiana allowed two sets of plaintiffs (10 states and three Louisiana parishes) to proceed with their challenge to “Risk Rating 2.0—Equity in Action,” the Federal Emergency Management Agency’s (FEMA’s) new methodology for calculating premiums for flood insurance under the National Flood Insurance Program (NFIP). The court found that the 10 plaintiff states did not plausibly allege an injury to their sovereign interests caused by Risk Rating 2.0 and also did not allege parens patriae standing on behalf of their residents based on actual or imminent injury to land and property within the states’ borders. In addition, the court found that neither the more than 60 municipal entities nor the state plaintiffs could establish standing based on alleged loss of tax revenues or on past mitigation costs to protect residents from flood damage. The court concluded, however, that the plaintiff states plausibly alleged standing based on a theory that they would incur costs of mitigation because higher premiums would result in homeowners dropping mandatory flood insurance, increasing the States’ liability to the Federal Emergency Management Agency for reimbursement of funds received by those homeowners, and also increasing the states’ rebuilding costs. The court also found that three Louisiana parishes that were NFIP policyholders had established standing based on increased premium rates. The court found that the sole nongovernmental plaintiff—the Association of Levee Boards of Louisiana—had not established associational or organizational standing. The court granted the defendants’ motion to dismiss NEPA claims because the plaintiffs alleged only economic injuries, which fell outside NEPA’s zone of interests. The court also denied the plaintiffs’ motion for a preliminary injunction restraining enforcement of Risk Rating 2.0, finding that the defendants had shown that reinstating the “Legacy Rating System” would not be “nearly as simple or harmless” as the plaintiffs argued it would be. The court concluded that one of the parish plaintiffs failed to establish irreparable injury would occur before a trial on the merits and that the other remaining plaintiffs failed to show that any irreparable injury would outweigh harm to the defendants and the public. The court did not address the plaintiffs’ likelihood of success on the merits. Louisiana v. Mayorkas, No. 2:23-cv-01839 (E.D. La. Mar. 28, 2024)

Washington Court Said Agency Failed to Adequately Consider Climate Impacts of Timber Sale

The Washington Superior Court found that the Washington State Department of Natural Resources (DNR) failed to conduct an adequate review of the climate change impacts of a timber sale and therefore clearly erred when it issued a Determination of Nonsignificance under the State Environmental Policy Act (SEPA). The court found that DNR’s rationale that the timber sale would result in only minor carbon dioxide emissions because carbon was sequestered “to a certain (unknown) degree on all DNR-managed lands” was unjustified. The court also found that conclusions and data in the Washington Forest Ecosystem Carbon Inventory did not support DNR’s claim that its managed lands capture “far more” carbon than they release. The court concluded that SEPA required DNR to assess specific climate change impacts of the individual sale. In addition, the court found that DNR did not conduct the required alternatives analysis. The court said that alternatives that could be studied included employing variable density thinning techniques, potentially earning revenues from carbon payments under Washington’s carbon market, or earning revenue by creating opportunities for scientific research or sustainable foraging. Center for Sustainable Economy v. Washington State Department of Natural Resources, No. 23-2-11799-9 KNT (Wash. Super. Ct. Mar. 28, 2024)

NEW U.S. CASES, MOTIONS, AND OTHER FILINGS

Honolulu Urged Supreme Court to Deny Fossil Fuel Companies’ Request for Review of Hawai‘i Supreme Court Decision Allowing Climate Deception and Failure to Warn Claims to Proceed

On May 1, 2024, the City and County of Honolulu and the Honolulu Board of Water Supply (Honolulu) filed their brief responding to fossil fuel companies’ petitions for writ of certiorari seeking U.S. Supreme Court review of the Hawai‘i Supreme Court’s decision affirming the denial of the companies’ motions to dismiss Honolulu’s climate change case. Honolulu alleges that the defendants’ concealment and promotion of false and misleading information about their products’ contribution to climate change caused climate-related impacts. In the brief opposing certiorari, Honolulu first argued that the Court lacked jurisdiction to review the Hawai‘i Supreme Court’s interlocutory decision, which did not satisfy any exception to the statutory provision making certiorari review of state high court decisions available only from final judgments or decrees. Honolulu argued that even if the Court had jurisdiction, the petitions did not identify a “cert-worthy split” because the cases identified by the companies as conflicting, including the Second Circuit’s decision in City of New York v. Chevron Corp., involved imposition of liability based on emissions, while Honolulu’s case sought to impose liability based on the defendants’ failures to warn, failures to disclose, and deceptive marketing regarding their products. In addition, Honolulu argued that denying certiorari was appropriate because the decision below correctly rejected preemption defenses based on federal common law and “constitutional structure,” on the Clean Air Act, and on interference with federal authority over foreign affairs. Honolulu also contended that even if the Court had jurisdiction to review, the interlocutory decision was a “particularly poor vehicle for considering petitioners’ preemption defenses” because of the lack of finality. Honolulu argued that “benefits of percolation weigh heavily in favor of denying certiorari” because multiple state courts were evaluating the preemption defenses and the Court had recognized that the “collective wisdom” of lower courts was especially important when certiorari petitions raise issues of first impression. Ten amicus briefs were filed in March and April in support of the certiorari petitions, including by 20 states, the U.S. Chamber of Commerce, and the National Association of Manufacturers. Sunoco LP v. City & County of Honolulu, Nos. 23-947 & 23-952 (U.S.)

Environmental Organizations Challenged FERC Approval of 32-Mile Gas Pipeline

Sierra Club and Appalachian Voices filed a petition for review in the D.C. Circuit Court of Appeals challenging FERC’s authorization of the Cumberland Project, which the petition described as “a 32-mile pipeline and appurtenant facilities that would provide gas transportation service to the Tennessee Valley Authority [(TVA)] to support a proposed new gas-fired power plant in Stewart County, Tennessee.” Before FERC, Sierra Club and Appalachian Voices argued that TVA’s plans conflicted with federal climate policy. A press release announcing the lawsuit  mentioned recent studies that showed pipelines’ methane emissions were several times greater than previously estimated. Sierra Club v. Federal Energy Regulatory Commission, No. 24-1099 (D.C. Cir., filed Apr. 28, 2024)

EPA’s Vehicle Emission Standards for Model Years 2027–2032 Challenged by 26 States; 22 States and Nonprofit Groups Moved to Intervene to Defend Standards

On April 18, 2024, Kentucky and 24 other states filed a petition for review in the D.C. Circuit Court of Appeals challenging the U.S. Environmental Protection Agency’s (EPA’s) final rule establishing multi-pollutant emissions standards for light- and medium-duty vehicles for model years 2027 through 2032. The standards are for criteria pollutants and greenhouse gases. The petition asserted that the rule exceeded EPA’s statutory authority and was otherwise arbitrary, capricious, an abuse of discretion, and not in accordance with law. Texas filed a separate petition for review on April 29. Twenty-two states, the District of Columbia, and four cities filed a motion for leave to intervene in support of the respondents, as did 13 nonprofit organizations that have “consistently advocated for reducing emissions of greenhouse gases and criteria pollutants from the transportation sector.” Kentucky v. EPA, Nos. 24-1087, 24-1100 (D.C. Cir., filed Apr. 18, 2024)

States Challenged BLM’s Waste Prevention Rule for Oil and Gas Production on Federal and Indian Leases

North Dakota, Montana, Texas, and Wyoming filed a lawsuit in federal district court in North Dakota challenging the U.S. Bureau of Land Management’s final rule intended to reduce waste of natural gas from venting, flaring, and leaks during oil and gas production activities on federal and Indian leases. The rule is also intended to compensate public and Indian mineral owners for waste gas through royalty payments. The four states alleged that the rule was “BLM’s second attempt to play the role of the Environmental Protection Agency … and use statutory authority given to the agency for the purpose of preventing the waste of federally owned oil and gas to promulgate sweeping greenhouse gas emission controls for putative climate change purposes,” as well as to expand federal regulation of State- and privately owned oil and gas. The states alleged that “very little has been done” to change the rule from a rule promulgated during the Obama administration that was vacated by the District of Wyoming in 2020, and that, “[i]f anything, this variation … is brazenly unlawful than the one previously vacated.” The states asserted that the rule exceeded BLM’s authority under the Mineral Leasing Act and Federal Oil and Gas Royalty Management Act, that it violated the Clean Air Act and Federal Land Policy and Management Act, and that it was arbitrary and capricious. North Dakota v. U.S. Department of the Interior, No. 1:24-cv-00066 (D.N.D., filed Apr. 24, 2024)

Environmental Groups Filed Challenge to California Logging Projects in New Venue

On April 22, 2024, Sierra Club and two other environmental organizations filed a lawsuit in the federal district court for the Eastern District of California challenging the U.S. Forest Service’s authorizations of two logging and vegetation management projects in the footprints of two recent fires in the Giant Sequoia National Monument and the Sequoia National Forest. The groups filed the lawsuit three days after voluntarily dismissing the case in the Northern District of California. The complaint alleged that, contrary to the Forest Service’s assertion, these projects’ proposed removal of trees from thousands of acres was “not clearly needed for ecological restoration and maintenance.” The plaintiffs contended that environmental impact statements should have been prepared and that the analyses in the environmental assessments and findings of no significant impact were insufficient, including because they failed to adequately consider impacts on carbon storage. They also asserted that the Forest Service failed to comply with the National Forest Management Act. Sierra Club v. U.S. Forest Service, No. 1:24-cv-00473 (E.D. Cal., filed Apr. 22, 2024)

Colorado Business Groups Challenge Colorado and Denver Building Performance Standards in Federal Court

Trade associations for the housing and hotel and lodging industries, an association of apartment building owners, and a commercial real estate development association filed a lawsuit in the federal district court for the District of Colorado asserting that the Energy Policy and Conservation Act (EPCA) preempted Colorado regulations and a Denver ordinance and regulations that establish building performance standards for covered buildings. The plaintiffs alleged that the building performance standards effectively require covered building owners to replace existing products and equipment regulated by EPCA with products that exceed current federal energy efficiency standards. They also alleged that the Colorado and Denver standards force new buildings to use EPCA-regulated products that exceed federal standards. In addition, they allege that the state and local standards create energy conservation standards that are not “energy source neutral,” forcing replacement of products that use natural gas or other fossil fuels with electric products. Colorado Apartment Association v. Ryan, No. 1:24-cv-01093 (D. Colo., filed Apr. 22, 2024)

Lawsuit Said Federal Agencies Violated Endangered Species Act in Connection with Management Plan for Forests that Provide Bat Habitat

Conservation organizations filed a lawsuit in the federal district court for the Western District of North Carolina asserting that the U.S. Forest Service and U.S. Fish and Wildlife Service violated the Endangered Species Act and Administrative Procedure Act in the consultation process for the Forest Service’s 2023 revised land management plan for the Nantahala and Pisgah National Forests. The forests provide habitat for four endangered bat species. The organizations alleged that the consultation process was flawed, including because the Forest Service failed to supply the FWS with the best available scientific data. The data provided by the Forest Service included information based on a model that “severely underestimated the effect of natural disturbances on forest age and bat habitat,” including by assuming natural disturbance would decrease during the life of the 2023 plan even though data showed that natural disturbance was “increasing due in large part to climate change.” The plaintiffs also asserted that the FWS’s biological opinion failed to analyze cumulative effects, including climate change. In addition, the organizations claimed, among other things, that the biological opinion did not adequately consider “the important role the Forests may play in a climate-stressed future,” such as by serving as “refugia for climate-stressed bats.” Defenders of Wildlife v. U.S. Forest Service, No. 1:24-cv-00118 (W.D.N.C., filed Apr. 18, 2024)

Consortia of Tribes Said Supplemental Environmental Impact Statement Was Needed for Groundfish Harvest Specifications in Bering Sea and Aleutian Islands

Two consortia with members that are federally recognized Tribes filed a supplemental complaint in their lawsuit in federal court in Alaska challenging the National Marine Fisheries Service’s adoption of annual harvest specifications for groundfish fisheries of the Bering Sea and Aleutian Islands. The supplemental complaint challenges the 2024 and 2025 harvest specifications, while the original lawsuit challenged the 2023 and 2024 harvest specifications. The plaintiffs alleged that like the 2023-2024 specifications, the 2024-2025 specifications are “based on an analysis that is significantly outdated and fails to account for rapid and unprecedented changes in the Bering Sea and Aleutian Islands ecosystem over the last two decades.” They contended that a supplemental environmental impact statement was required due to cumulatively significant new circumstances or information, including warming ocean temperatures, declining salmon populations, and shifts in abundance and distribution of species across all trophic levels. Association of Village Council Presidents v. National Marine Fisheries Service, No. 3:23-cv-00074 (D. Alaska Apr. 15, 2024)

Shareholder Derivative Action Filed Against Hawaiian Electric in Connection with 2023 Maui Wildfires

A shareholder derivative action filed against officers and directors of Hawaiian Electric Industries, Inc. (HEI), the largest electricity supplier in Hawai‘i, charged that the defendants knew for years before the 2023 Maui wildfires that the areas served by HEI were at risk of severe weather risk and that equipment and safety protocols and procedures were inadequate and that the defendants “failed to implement policies and practices meant to meaningfully mitigate these material risks.” The complaint alleged that the defendants also misled the public regarding HEI’s readiness for severe weather events, with false and misleading statements regarding risk mitigations, adherence to ESG principles, safety protocols and procedures, and equipment maintenance. The complaint included excerpts of statements regarding the company’s consideration of climate-related risks. The complaint alleged that if the defendants “took material risks to the Company seriously,” lives and property lost and damaged during the 2023 Maui wildfires could have been saved. The complaint alleged that HEI’s reputation was “extremely damaged” and that it faces liability for “billions of dollars in damages” resulting from fires, as well as other costs. The complaint asserted counts of breach of fiduciary duty, waste of corporate assets, and unjust enrichment. Assad v. Seu, No. 1:24-cv-00164 (D. Haw., filed Apr. 8, 2024)

Lawsuit Said NEPA Review for Funding to Diablo Canyon Nuclear Power Plant Was Insufficient

Friends of the Earth (FOTE) filed a lawsuit in the federal district court for the Central District of California challenging the U.S. Department of Energy’s (DOE’s) award of more than $1 billion to prevent the Diablo Canyon nuclear power plant from ceasing operations. The funding was through the Civil Nuclear Credit Program of the Infrastructure Investment and Jobs Act. FOTE contended that DOE failed to comply with NEPA when it adopted “an over 50-year old environmental analysis, along with other outdated and incomplete NEPA documents.” Among the impacts that FOTE alleged were not disclosed and analyzed are cumulative impacts involving climate change and its impacts on ocean temperatures and aquatic wildlife species, as well as “potential climate change impacts to systems and equipment at the facility that would threaten plant safety.” The complaint noted that the Government Accountability Office had recently published recommendations that the Nuclear Regulatory Commission specifically address increased risks to nuclear power plants from climate change. Friends of the Earth v. Granholm, No. 2:24-cv-02678 (C.D. Cal., filed Apr. 2, 2024)

Lawsuit Filed Claiming that Failure to Consider Gulf of Mexico Offshore Drilling’s Greenhouse Gas Emissions Violated Endangered Species Act

Center for Biological Diversity and a Duke University ecology professor filed a lawsuit in the federal district court for the District of Columbia challenging the U.S. Fish and Wildlife Service’s 2018 biological opinion that considered the effects of Gulf of Mexico offshore oil and gas activities on species protected under the Endangered Species Act. The plaintiffs alleged that the biological opinion, relying on guidance in a 2008 memorandum opinion by the Solicitor for the U.S. Department of Interior, omitted any analysis of climate harms from offshore oil and gas development. The complaint alleged that the federal oil and gas activities analyzed in the biological opinion “comprise one of the nation’s largest sources of greenhouse gas emissions,” with an estimated 320 million tons of greenhouse gases emitted annually between now and 2030. The plaintiffs claimed that the opinion unlawfully “fails to quantify greenhouse gas emissions, ignores climate change as part of the environmental baseline, and, most importantly, omits analysis of the impacts of greenhouse gas pollution on threatened and endangered species and their critical habitat.” The plaintiffs also alleged that the biological opinion failed to analyze and minimize other harms. In addition to their claim regarding the biological opinion, the plaintiffs also alleged that the FWS’s delay in responding to a March 2022 rulemaking petition was unreasonable. The petition requested that the FWS amend its Endangered Species Act regulations to specify that greenhouse gas emissions must be considered during the consultation process. Center for Biological Diversity v. Haaland, No. 1:24-cv-00990 (D.D.C., filed Apr. 8, 2024)

Lawsuit Sought Listing Decisions for Pollinator Bee Species Under Endangered Species Act

Center for Biological Diversity filed a lawsuit asking the federal district court for the District of Arizona to order the U.S. Fish and Wildlife Service to issue determinations on petitions to list four pollinator bee species as endangered or threatened. The complaint alleged that FWS received the listing petition for the blue calamintha bee on February 5, 2015 and issued a positive 90-day finding in September 2015 but had never made a 12-month finding regarding whether listing under the Endangered Species Act was warranted. The complaint further alleged that FWS received the petitions for the American bumblebee, variable cuckoo, and Southern Plains bumblebee in February 2021, May 2021, and July 2022, respectively, and had yet to issue 12-month findings. The complaint alleged that the four species were “suffering from declining populations due to habitat degradation and destruction, pesticide use, climate change, and other threats.” Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 4:24-cv-00183 (D. Ariz., filed Apr. 1, 2024)

Environmental Groups Asked Maine Court to Require State Agency to Adopt Rules to Reduce Greenhouse Gas Emissions

Conservation Law Foundation, Sierra Club, and Maine Youth Action filed a lawsuit in Maine Superior Court seeking to compel the Maine Department of Environmental Protection and Board of Environmental Protection to adopt regulations to ensure compliance with Maine’s 2019 climate law, which requires reducing greenhouse gas emissions by at least 45% below the 1990 level by 2030 and by at least 80% by 2050. The petitioners alleged that the defendants had adopted only two rules to implement the climate law’s requirements and no rules aimed at transportation emissions, which comprise 54% of emissions. The petitioners further alleged that the Board had rejected three transportation decarbonization rules, including the Advanced Clean Cars II Program, a rule promulgated by the California Air Resources Board that the Maine Governor’s Energy Office called “critically important” in a clean transportation roadmap published in December 2021. The Board voted not to adopt the Advanced Clean Cars II rule on March 20, 2024. The petitioners asked the court to declare that the defendants were “under an existing and ongoing statutory obligation … to adopt rules ensuring compliance with the climate mandates” and to adopt rules that are consistent with Maine’s 2020 climate action plan and that “prioritize emissions from the sectors that are the greatest contributors.” The petitioners also sought a declaration that the failure to adopt the Advanced Clean Cars II rule was arbitrary and capricious and an abuse of discretion, as well as unlawful under the 2019 climate law. In addition, they asked the court to order the Board to adopt rules ensuring compliance with the 2019 climate law’s mandates and to adopt, by November 1, 2024, the Advanced Clean Cars II rule, or an alternative rule to reduce transportation emissions. Conservation Law Foundation v. Maine Department of Environmental Protection, No. __ (Me. Super. Ct., filed Apr. 19, 2024)

Environmental Groups Challenged Louisiana Agency’s Permit for Gas Pipeline Serving LNG Export Terminal

Environmental groups filed a lawsuit in Louisiana District Court challenging the Louisiana Department of Energy and Natural Resources’ Office of Coastal Management’s (OCM’s) issuance of a Coastal Use Permit for a methane gas pipeline. They alleged the pipeline’s “sole purpose is to support the development of a new 770+ acre liquefied methane (‘natural’) gas [(LNG)] … export complex.” The petitioners alleged that OCM did not “assess or weigh the costs of the real and potential adverse environmental impacts” of the pipeline, including its impacts in conjunction with the export terminal. Among the failures they alleged was a failure to consider cumulative climate change-related environmental impacts in the Louisiana coastal zone. The petitioners alleged that OCM had justified this omission based on the proposed export facilities’ impact on greenhouse gas emissions being “beyond the scope of the project review under the coastal use regulations and guidelines.” The petition asserted that OCM’s issuance of the permit was “arbitrary and capricious, in violation of the constitutional and statutory provisions, and made on improper procedure, and its decision must be vacated and remanded for reconsideration.” Healthy Gulf v. Secretary, Louisiana Department of Natural Resources, No. 10-21077 (La. Dist. Ct., filed Apr. 11, 2024)

EPA Filed Administrative Complaint Against Lubricant Wholesaler for Illegal Importation of HFCs

EPA filed an administrative complaint seeking civil penalties against a wholesaler of engine lubricants for allegedly violating the American Innovation and Manufacturing Act of 2020 (AIM Act) by importing hydrofluorocarbons (HFCs) without possessing or expending any allowances. In addition, EPA alleged that the respondent failed to submit timely advance notification reports prior to importation and failed to submit quarterly reports. In its announcement of the enforcement action, EPA said it was the first time it had used its authority under the AIM Act to file an administrative complaint for illegally importing HFCs. The AIM Act requires a phasedown of HFC production and consumption, with EPA’s regulations implementing the phasedown requiring that importers expend allowances to import HFCs. EPA also said that achieving the goals of the HFC phasedown requires accurate data, and that it therefore is using its enforcement authorities to target HFC importers that fail to accurately report their import quantities to EPA. In re USA Wholesale Lubricant, Inc., No. CAA-HQ-2024-8443 (EPA, filed Apr. 8, 2024)

HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART

HIGHLIGHTED CASE

India: Supreme Court Declared Constitutional Right Against Adverse Effects of Climate Change

The present case is a writ Petition filed to the Supreme Court of India, invoking its jurisdiction and issuing the necessary order to protect two endangered birds, the Great Indian Bustard (GIB) and Lesser Florican. This petition was in reference to the judgment of the Supreme Court dated April 19, 2021 wherein the Supreme Court had ordered that a large part of the territory not be used for overhead transmission lines, gave instructions to convert to underground power lines within a year and appointed a committee to determine whether laying high voltage underground power lines would be feasible. The Ministry of Environment, Forests, and Climate Change, the Ministry of Power, and the Ministry of New and Renewable Energy (‘MNRE’) requested a modification of the judgment on the grounds that its implementation would cause adverse implications for the power sector and India’s international commitment for energy transition and fulfillment of promise under the Paris Agreement. In the present case, the Apex Court had to decide two major issues, i.e., modification of the directions issued under the judgment from April 19, 2019 and balance the preservation of Great Indian Bustard and India’s commitment to control climate change through promoting a just transition [shifting from energy from fossil fuels to renewable energy]. The Apex Court reviewed the factors causing threats to the Great Indian Bustards, the actions taken by the Government of India, specifically the programme “Habitat Improvement and Conservation breeding of Great Indian Bustard” launched in 2016 and other measures. The Court also discussed the impacts of the changing climate and India’s commitments and efforts to control it. It was observed that the promotion of renewable energy sources is crucial for promoting social equity by ensuring access to clean and affordable energy for all segments of society and thus fostering inclusive growth and development across the nation. The Court emphasized the State’s duty under Article 48 A and the fundamental duty of citizens under Article 51 A of the constitution of India as constitutional commitments to ensure the protection of the natural world and compassion for living creatures. Relating these duties to Articles 21 and 14 of the Indian Constitution, the Court declared that the right to a clean environment and the right against the adverse effects of climate change has its source in Article 21, which recognizes the right to life and personal liberty and Article 14, which indicates equality before law and equal protection of law. Thus, justifying the actions of the State, the court dealt with intersections between climate change and human rights as well as a novel issue of intricate interface between the conservation of an endangered species, such as the Great Indian Bustard, and the imperative of protecting against climate change. (Mk Ranjitsinh & Ors. v. Union Of India & Ors., Supreme Court, India)

DECISIONS & SETTLEMENTS

United Kingdom: Marks and Spencer’s Wins Challenges to Denial of Planning Permission Due to Lack of Green Infrastructure

This challenge concerns Marks and Spencer’s flagship London store. In July 2023, the Secretary of State refused planning permission for its demolition and replacement with a new mixed office and retail store. The claimant brought a public law challenge.

In March 2024, the High Court upheld that challenge, quashing the refusal of planning permission. One ground of challenge concerned the Secretary of State’s finding that there was a “strong presumption in favour of repurposing buildings,” which was “reflected” in the following paragraph of the National Planning Policy Framework:

“152. The planning system should support the transition to a low carbon future in a changing climate, taking full account of flood risk and coastal change. It should help to: shape places in ways that contribute to radical reductions in greenhouse gas emissions, minimise vulnerability and improve resilience; encourage the reuse of existing resources, including the conversion of existing buildings; and support renewable and low carbon energy and associated infrastructure.”

The Secretary of State had misinterpreted this policy, and so erred in law. Whilst there was some encouragement for the reuse of buildings, there was nothing close to a presumption. (Judgment, paragraphs 54 to 57.)

A further ground related to the Secretary of State’s approach to “embodied carbon.” Again, the Secretary of State misinterpreted the planning policy, this time in the London Plan. That policy stated, “Major development should be net zero” and included a carbon offsetting requirement. However, that is related to the operational phase. It did not relate to the embodied carbon in the construction phase. The Secretary of State had misinterpreted the policy on this point and in the process, appears to have become “thoroughly confused.” The court stressed the importance of making clear that this case was not about whether or not it would be appropriate or justified to have such a policy in light of the climate emergency. Such a judgment is not the function of the court. The issue for the court was whether the Secretary of State erred in law by misinterpreting policy. (Judgment 113 to 124.) (Marks and Spencer PLC v Secretary of State for Levelling Up, Housing and Communities, High Court of Justice, United Kingdom)

Japan: Tokyo High Court Decides that Climate Claims Are Not Legally Protected at an Individual Level

On February 22, 2024, the Tokyo High Court dismissed all of the citizensʼ (appellants) appeals. Firstly, regarding the non-recognition of the threat of climate change in the first instance judgment, the court recognized the danger of climate change as fact, citing both the IPCC Fifth Assessment Report and IPCC Special Report on Impacts of Global Warming of 1.5°. The court stated that “Indeed, it is a serious and grave situation that climate change is causing weather disasters and changes in ocean conditions in various parts of the world, including Japan, and causing various damages to people.” On this point, the court acknowledged the effects of climate change on marine ecosystems, in response to the appellants’ claims. Secondly, concerning the standing, the court stated that the Basic Matters relating to the Guidelines to be Established by the Competent Minister in Accordance with the Provisions of the EIA Act, as well as Ministerial Order of EIA, clearly treats GHG differently from other evaluation items for which studies, forecasts, and assessments should be conducted to ascertain the effects on human health and the living environment, with the aim of ensuring the protection of human health and the preservation of the living environment.

Consequently, the court concluded that the regulations governing CO2 did not include the intent to protect the individual interests of each person. Furthermore, it stated that “the interest to not suffer damage caused by global warming due to CO2 cannot be legally protected as concrete individual interests that are not absorbed by general public interests” because the alleged power plant is not considered to particularly increase the threat of damage in relation to a specific range of individuals. Thirdly, regarding the non-consideration of the alternatives of fuel sources, the court denied illegality because the based regulations of the conducted EIA “only require consideration of multiple alternatives for the structure or layout of the power generation facilities, the location where the project will be implemented, or the scale of the project.” Fourthly, regarding the fact that carbon dioxide has not been selected as a consideration factor at the planning phase, the court stated that “The annual emissions of CO2 from the operation of the new power plant (approximately 7.26 million tCO2/year) are only about 1/5000th of the global CO2 emissions in 2015 and about 0.64% of Japan’s total CO2 emissions in 2006. The CO2 emitted by the thermal power plant itself does not directly affect the environment. It causes climate change on a global scale in combination with emissions from other sources, to materialize natural disasters resulting various types of damage. Therefore, it is difficult to conclude that the CO2 emissions from the new power plant alone will significantly increase the scale or frequency of damage caused by disasters due to global warming.” Additionally, the court noted that the alleged operator plans to adopt USE power generation equipment to reduce CO2 emissions. Further, the EIA Guideline for power plants states that CO2 is not an item that is expected to have a significant environmental impact in a typical project. Consequently, the court concluded that it was not illegal not to select CO2 as a consideration factor in the planning stage.

Fifthly, regarding the application of the Improvement and Replacement Rationalization Guideline, the applied “Simplified Replacement Assessment” in this case is principally applicable in the case of replacement when the environmental impact has been reduced. In reality, however, the power plant before the replacement in this case had hardly been in operation since 2000. Thus, in 2015, when the construction of the two power plants was planned, the local air quality had improved considerably and stably. However, the court held that, even under these circumstances, a reduction in the actual environmental impact compared to recent operations was not a necessary requirement for the application of the Simplified Replacement Assessment. Therefore, there was nothing illegal in applying this type of Assessment on the grounds that emissions were lower than in 1970, when the plant was operating at maximum capacity. Yokosuka Climate Case (Japan, Tokyo District Court)

Colombia: Constitutional Court Decided that Environment and Climate-Induced Migration Is a Cause of Internal Forced Displacement

In 2021, two individuals (José Noé Mendoza Bohórquez and Ana Librada Niño de Mendoza) filed an amparo mechanism against the Department of Arauca, the Municipality of Saravena, the Administrative Department for Social Prosperity, the National System for Disaster Prevention and Attention, the Unit for Victims’ Comprehensive Attention and Reparation and the Office of the Ombudsman. The plaintiffs are two 66- and 63-year-old campesinos that were forced to leave their land where they lived and worked, because of the 2015 and 2016 floodings of the river Bojabá. Since then, plaintiffs have not been able to return.

Due to the dire situation of Colombia’s internal forced displacement in the context of the armed conflict, in 2011 the Congress issued Law 1448 to provide assistance to all victims of forced displacement. Among the provisions, the Law establishes a series of benefits and programs to aid victims in relocating. Plaintiffs argue that they must be accorded victim status even if their displacement was induced by natural disasters and not the armed conflict. Plaintiffs consider that both victims of forced displacement by natural disasters and armed conflict are in a special vulnerable situation and should be treated equally. Plaintiffs invoke their rights to housing, work, food security, and minimum wage, as well as life and personal safety.

On April 16, 2024, the Constitutional Court conducted judicial review and decided that environment and climate-induced migration is indeed a cause of internal forced displacement. The Court found that the plaintiffs had left their houses due to a natural disaster and as such, are subject to a special protection by the Colombian government. However, the Court stated that this status is not covered by existing laws, including Law 1448 of 2011, since these provisions concern victims of displacement due to the armed conflict. As a result, the Court found that there is a legal vacuum when it comes to the special protection of environment and climate-induced forced displacement and ordered the Congress to issue the necessary legislation to fill it.

Further, the Court concluded that the lack of specific provisions is no excuse for environmental authorities not to provide the necessary protection to victims of environment and climate-induced migration, in accordance with constitutional and international standards on forced migration. Despite the lack of specific regulation, the Court said that environmental authorities must guarantee victims’ rights and provide attention and assistance that goes beyond the immediate consequences of the forced displacement and aims towards stabilizing the victims’ situation. (José Noé Mendoza Bohórquez et al. v. Department of Arauca et al. (climate-induced migration as forced displacement) Colombia, Constitutional Court)

United Kingdom: Court Rejects Challenges to Development of Tunnel Under Stonehenge

In July 2023, the Secretary of State granted development consent for the construction of a new dual carriageway in Wiltshire, England. The route crosses the Stonehenge World Heritage Site, including via a new tunnel underneath the stones. The scheme would replace the existing surface-level section of the road.

The claimant company, formed by objectors to the proposal, issued a public law challenge. They were joined by a co-claimant who was a local landowner. The challenge was heard at a ‘rolled-up hearing’, at which the application for permission to bring the claim, and the substantive claim itself, were heard together. The High Court gave a judgment in February 2024. The hearing and the judgment concerned only the first six of the claimants’ seven grounds. The seventh ground was stayed for later determination.

For the six grounds considered, the court refused permission. Two of those grounds are related to climate change. The first alleged the Secretary of State failed to regard an obviously material consideration, namely the government’s Carbon Budget Delivery Plan and its Net Zero Growth Plan, both issued in March 2023. This ground was unarguable. The Secretary of State had rightly focused on the relevant national policies, including that any increase in carbon emissions was not a reason to refuse consent unless the increase were so significant it would have a material impact on the ability of the government to meet its carbon reduction targets. The Secretary of State concluded the scheme would have no such impact. The court held that the material now relied on by the claimants provided no basis for undermining that conclusion. (Judgment paragraphs 224 to 243.)

The second of the climate grounds is the relevant national policy related to the National Networks National Policy Statement (“NPSNN”). The NPSNN was adopted in 2014, before the UK’s current climate budgets and targets were set. The ground alleged the Secretary of State failed to consider not applying the NPSNN and/or he acted irrationally in not departing from the NPSNN in relation to climate change, given that that policy was being reviewed at the time of the decision because it did not take into account the UK’s current climate obligations. This ground was unarguable. The Secretary of State was not responsible for UK-wide compliance with climate obligations – that fell to a different secretary of state. There were serious doubts over whether the claimants were even entitled to pursue this ground, given the NPSNN had not been suspended pending review and given the wording of the Planning Act 2008. However, the ground was unarguable at any event. In reaching the decision, the Secretary of State considered the scheme’s implications for the net zero target and carbon budgets. He had therefore considered the matters that led him to decide that a review of the NPSNN should be carried out. There was no arguable legal error in his decision-making. (Judgment paragraphs 244 to 256.)

The judgment disposed of the claimant’s first six grounds of challenge. The remaining ground alleged that the Secretary of State’s approach to environmental impact assessment was unlawful in relation to the cumulative effect of GHG emissions from the scheme and other committed road schemes. The High Court had previously stayed this ground pending the decision of the Court of Appeal in R (Boswell) v Secretary of State for Transport [2023] EWHC 1710 (Admin). (See judgment paragraphs 60, 64 and 257.)

Three days after the High Court’s judgment, the Court of Appeal gave judgment in Boswell, dismissing that appeal. It is not known whether the remaining Stonehenge ground of challenge has been settled in light of the Boswell ruling, or whether the Stonehenge claimants have sought to appeal to the Court of Appeal. (R(Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport, High Court of Justice, United Kingdom)

United Kingdom: Court of Appeal Considered “Lawful Excuse” Defense After Jury Acquitted Climate Change Activist Prosecuted for Conspiracy to Damage Property

The defendant was a member of a political group that asserts climate change is an emergency and anything short of immediate and substantial change will lead to terrible consequences for the planet and the human race.

In July 2020, she, together with others, agreed to target the offices of various environmental NGOs. At each premises, the group asked to hand in a letter and then proceeded to throw pink paint and attach copies of the letters to the premises. The letters drew attention to the climate emergency and what they saw as the culpable inaction of those targeted. In August 2020, similar events involving the defendant and others took place at the headquarters of the major UK political parties. At one of these headquarters, one defendant took out a glass hammer and smashed a window. Finally, it was alleged that the defendant and others agreed to target the headquarters of various trade unions, but this agreement was not put into effect.

The defendant was prosecuted for conspiracy to damage property. At her Crown Court trial, she gave evidence that she believed the occupiers of the premises would have consented to the damage had they been aware that it was carried out to alert those responsible for the premises to the nature and extent of man-made climate change. This was in support of her “lawful excuse” defense under section 5(2)(a) of the Criminal Damage Act 1971.

The defendant was acquitted by the jury. Pursuant to section 36 of the Criminal Justice Act 1972, the Attorney General referred two questions of law to the Court of Appeal said to have arisen from the trial. The first question related to the lawful excuse defense, which applies where a defendant honestly believes the owner had given their consent or would have consented had they “known of the destruction or damage and its circumstances.” On this point, the Court of Appeal confirmed that “circumstances” do not include the merits, urgency, or importance of the matter about which the defendant is protesting, nor the perceived need to draw attention to a cause or situation.

The second question related to whether the judge was right to rule that the defense should not be withdrawn from the jury. The Court of Appeal declined to answer, as that may call into question the acquittal. However, it did address the legal question as whether and when it is appropriate not to leave a possible defense to the jury (see judgment, paragraphs 52 to 64). (Attorney General’s Reference on a point of law concerning the scope of the “lawful excuse” defence for the offence of criminal damage, Court of Appeal Criminal Division, United Kingdom)

United Kingdom: Challenge to Claim that BMW Cars Were “Zero Emission” Upheld

A paid-for Google ad for BMW featured the claim, “Zero Emissions Cars – Download Your Brochure Today.” The relevant Code required that marketing communications must not materially mislead or be likely to do so. The basis of environmental claims must be clear. The ASA therefore understood that consumers would interpret the ad as promoting BMW’s cars as cars that would produce zero emissions in all circumstances. Without material information to make clear to consumers what the claim was based on and clarification that it was restricted to emissions only when driving, “Zero Emissions Cars” was likely to mislead. Emissions were still generated aside from when driving, such as during the manufacture or charging of an electric vehicle using electricity from the national grid.

The complaint to the Advertising Standard Authority (ASA) was upheld, and it was ruled that the ad must not appear again in its current form. The ASA told BMW to ensure that ads referring to “zero emissions” made clear that the claim related to an electric vehicle only when it was being driven. (ASA Ruling on BMW (UK) Ltd, Advertising Standard Authority, United Kingdom)

United Kingdom: ASA Concludes Advertisement About “Zero Emissions” Vehicles Was Misleading

A paid-for Google ad for MG Motor seen in August 2023 featured the claim, “Find A Dealer – Book A Test Drive. Save £1,000 On Your Next MG HS Plug-in Hybrid [...] Zero Emissions.” The ad made the claim “Zero Emissions” without material information that was required to allow consumers to understand what it was based on. It did not differentiate between the vehicle types. Nor did it clarify that the claim was restricted to emissions when an electric vehicle was being driven, as opposed, for example, to emissions generated during the manufacture of the car or when it was charged using electricity from the national grid.

The Advertising Standards Authority concluded that the ad, therefore, was likely to mislead. The ASA ruled that the ad must not appear again in its current form. It told MG to ensure that “zero emissions” claims were made only where appropriate. They should ensure, in ads for fully electric vehicles, to be explicit that the claim applied only to the vehicle while it was being driven. In relation to ads for plug-in hybrids, it should be clear that it is applied only to driving and when using the battery for power. It should never be made in relation to vehicles that were powered by petrol or diesel engines. (ASA Ruling on MG Motor UK Ltd, Advertising Standard Authority, United Kingdom)

United Kingdom: ASA Determines Charles Tyrwhitt’s Claim to Be a “Carbon Neutral” Business Was Misleading

A paid-for Facebook ad for Charles Tyrwhitt, a clothing retailer, seen in July 2023, featured an image of a print cotton shirt. Text on the post stated “We’re proud to be a Carbon Neutral business.”

The relevant advertising code requires the basis of environmental claims to be made clear. Unqualified claims could be misled if material information was omitted. Relevant guidance stated that advertisers should avoid using unqualified carbon neutral claims and should not omit information for consumers that explains the basis for such claims. Accurate information about whether (and the degree to which) the claim was based on an active reduction in carbon emissions or based on offsetting should be included to ensure consumers understood the basis on which carbon neutrality was achieved.

The Advertising Standards Authority determined that because there was no qualifying information in the ad which outlined the basis for the “carbon neutral” claim, which was significant information that consumers needed to know in order to fully understand the claim’s meaning, the ad was misleading, in breach of the relevant codes. (ASA Ruling on Charles Tyrwhitt Shirts Ltd, Advertising Standard Authority, United Kingdom)

United Kingdom: Air France Misled Customers About Its Commitment to Protecting the Environment

A paid-for Google ad for Air France, seen in July 2023, stated “Manchester to Bangkok […] Air France flights […] Air France is committed to protecting the environment: travel better and sustainably.”

The Advertising Standards Authority held that the relevant advertising code required that absolute environmental claims must be supported by a high level of substantiation. The ASA considered that the claims would be understood by consumers to mean that Air France offered a sustainable and environmentally friendly way to travel by air. It therefore expected to see a high level of evidence which demonstrated how Air France was protecting the environment and making aviation sustainable. The ASA understood that air travel was making a substantial contribution to climate change, and that there were currently no initiatives or commercially viable technologies in operation that would adequately substantiate absolute green claims such as these. The claims gave consumers a misleading impression of the impact that travelling with Air France would have on the environment, in breach of the relevant code. (ASA Ruling on Air France-KLM, Advertising Standard Authority, United Kingdom)

United Kingdom: Lufthansa’s Claim to Offer Sustainable Flights Is Misleading

A paid-for Google ad for Lufthansa, seen in July 2023, stated “Fly now with Lufthansa […] Book your ticket directly with Lufthansa and explore destinations around the world […] Fly more sustainably.”

The relevant advertising code stated that the basis of environmental claims must be clear. Unqualified claims could mislead if they omitted significant information. Comparative claims could be justified if the basis of the comparison was clear. Consumers would understand the claim that people could “Fly more sustainably” with Lufthansa to mean that they offered a way to travel by air that had a lower environmental impact than alternative airlines. The ad did not clarify how this claim worked in practice, and the basis of the claim was likely to be material information which consumers would need in order to make an informed decision.

While it was noted that flying with the Green Fares option used “sustainable aviation fuel” as part of the fuel mix for that flight and made contributions to climate protection projects, and that this might decrease some of the negative environmental impact of flying with Lufthansa, the basis for the claim “Fly more sustainably” had not been made clear. The ad gave a misleading impression of Lufthansa’s environmental impact, in breach of the relevant code. (ASA Ruling on Lufthansa (complaint no.2 in 2023), Advertising Standard Authority, United Kingdom)

United Kingdom: Airline’s Claim of Environmental Advocacy Ruled as Likely to Mislead Consumers

A paid-for Google ad for Etihad Airways, seen in July 2023, stated “Etihad Airways – Book Your Flight Today […] Enjoy Great Discounts, Offers and Deals On Your Flight Bookings. Explore the World With Confidence and Total Peace Of Mind With Etihad Airways. Environmental Advocacy. Award-Winning Service.”

The relevant advertising code required that absolute environmental claims must be supported by a high level of substantiation. The claims that Etihad allowed consumers to explore the world with “Total Peace Of Mind,” alongside the phrase “Environmental Advocacy,” would be understood by consumers to mean that Etihad actively worked to protect the environment and, consequently, consumers could use their services with “Total Peace Of Mind” with regard to the environmental impact of doing so. It was therefore expected that there would be a high level of evidence, which showed how they offered consumers total peace of mind about the environmental impact of using their service.

Air travel was making a substantial contribution to climate change. There were currently no initiatives or commercially viable technologies that would adequately substantiate absolute green claims, such as that Etihad were providing consumers with “Total Peace Of Mind” when travelling by air, and engaging in “Environmental Advocacy.” While Etihad’s decision to remove the phrase “Environmental advocacy” from future ads was welcomed, there was no evidence that they were engaged in such advocacy, or that they actively worked to protect the environment in a way that meant consumers could use their services with “Total Peace Of Mind” with regard to the environmental impact of doing so. The ad gave a misleading impression of Etihad’s environmental impact, in breach of the relevant code. (ASA Ruling on Etihad Airways (complaint no.2 in 2023) (Advertising Standard Authority, United Kingdom)

Papua New Guinea: Court Quashes Minister’s Rejection of Renewable Energy Company’s Request for Permit to Conduct Carbon Offset Projects

The Plaintiff is Mayur Renewables, a company intent on developing renewable energy in Papua New Guinea. The Defendants were Minister Mirisim (current Minister for Forests), Faith Barton (Chairperson of the National Forest Board) and the Papua New Guinea Forest Authority. In January of 2022, Mayur Renewables were granted permits to conduct carbon offset projects in the Western province of Papua New Guinea by then Minister for Forests Minister Schnaubelt. In May of 2022, the new Minister for Forests, Minister Mirisim, cancelled (or attempted to) cancel the permits granted to Mayur Renewables. The Plaintiff therefore sought, among other reliefs, an order quashing Minister Mirisim’s decision to cancel the permits. The Court granted an order quashing Minister Mirisim’s decision to cancel the Plaintiff’s permits on the following grounds.

The Defendant argued that the Forestry Act, which empowered ministers to grant permits for forest-related projects, contained no provision for the grant of forest carbon concession trading permits. The Court ruled that this justification was a mere afterthought as such a reason was not given at the time the permits were canceled and therefore fell foul of the duty to give reasons at the time of pronouncing the decision enshrined in Papua New Guinea’s law. The Court also opined that the decision to grant the permits in the first place was well founded because such a decision took account of and was in line with the need for urgent actions to be taken to prevent further deforestation and to deal with the climate change emergency. Such an argument was further supplemented by the preamble of the Forestry Act 1991, which referred to conserving the nation’s forest resources. The Court viewed this objective as the most important one stated in the Act, especially in light of the UN’s proclamation that climate change requires drastic action and is the defining issue of our time.

Moreover, the Court ruled that the decision to cancel the permits was unreasonable due to, among other things, the carbon offset scheme being calculated to sustainably manage the forest in light of the climate emergency. This emergency calls for urgent and immediate steps, and the cancellation would serve as a retrograde step in the fight against climate change. In support of this proposition, the Court cites the first 5 principles in the IUCN World Declaration on the Environmental Rule of Law and suggests that the previous decision to grant the permits were more in line with such principles.

The Court also found that Minister Mirisim failed to follow the proper process for canceling the permits such that he failed to consider the serious climate-related challenges being faced globally as well as Papua New Guinea’s international and domestic obligations (e.g., the Paris Agreement) in respect of the climate change risks currently being faced.

Furthermore, the Court further found that Minister Mirisim’s decision was vitiated by bias due to his bias toward logging and against carbon offsetting projects. This was evidenced by his cancellation of the permits without due process, his reasoning for the cancellation being given as afterthoughts long after the cancellation, and his general pro-logging bias.

Therefore, the Court granted an order for certiorari quashing Minister Mirisim’s decision to cancel the plaintiff’s permits and also ordered a permanent injunction preventing the Defendants from canceling the plaintiff’s permits (except in very specific instances) or taking any other action that will seriously affect the plaintiff’s implementation of its projects. The Court also reiterated restraining orders it made in previous rulings, such as in Robin Kami V Aset Meriah, wherein an immediate ban was ordered on the further grant of timber permits and logging in Timber Rights Purchase Areas until the relevant authorities fully comply with the various orders of the Court including but not limited to providing detailed reports of all logging and climate changing activity (which has not been complied with yet). (Mayur Renewables V Mirisim [2024] PGNC 7, National Court of Justice, Papua New Guinea)

Northern Ireland: Court Rejects Challenge to Grant of Gas Licenses over Consideration of Climate Change

The applicants challenged the grant of consent for the construction of underground gas storage caverns under Larne Lough. Among other arguments, the applicants submitted that the decision to grant the licenses did not take adequate consideration of the impact of climate change on the project. In particular, the applicants contended that the Minister’s reliance during the grant process on the conclusion that “climate change considerations were considered, and it appears while the UK plans to reduce its reliance on fossil fuels, transition will take a significant time. Gas will continue to play an important part in the UK fuel mix for some years to come” lacked any rational basis.

The High Court dismissed the challenge, ruling that the Minister had given consideration to climate change throughout various discussions that had been held during the grant process, and the fact that conclusions like the kind above fall within the general deference provided to the government to set and develop the specifics of policies to achieve binding climate goals. The case is now under appeal. (No Gas Caverns Ltd & Anor, Application for Judicial Review (Rev1) [2023] NIKB 84, High Court, Northern Ireland)

United Kingdom: Climate Activists Found Guilty of Conspiracy to Cause Public Nuisance at Airport

The co-founder of climate group Extinction Rebellion, Roger Hallam, and three other defendants were charged with conspiracy to cause public nuisance. It was said the defendants conspired with others to fly drones within the airport’s restricted fly zone. The intention was said to be to close the airport until the government agreed to withdraw its policy backing for a new third runway.

On December 15, 2023, after a four-week trial, Hallam and another defendant were found guilty. They were each given two-year suspended prison sentences. A third defendant had previously pleaded guilty, whilst a fourth defendant was found not guilty. (R. v Hallam and others (‘Heathrow Pause’ drone protest), Crown Courts, United Kingdom)

United Kingdom: Court Decides Not to Allow Challenge to Grant of Development of New Road to Proceed

In August 2022, the UK government granted development consent for the A428 Black Cat to Caxton Gibbet road scheme in Cambridgeshire, England. The proposal was for a new dual carriageway. Transport Action Network issued a public law challenge to the decision, including on climate grounds. They claimed the scheme was the third biggest carbon emitting scheme under the government’s current roads programme.

According to online reports, the High Court refused permission for the claim to proceed to trial. This was initially done “on the papers,” but was reaffirmed following a permission hearing on March 30, 2023. The Court of Appeal then refused the claimant permission to appeal, bringing the challenge to an end. (Transport Action Network v Secretary of State for Transport (A428 Black Cat Road Scheme), High Court of Justice, United Kingdom)

United Kingdom: Court Sends Application for Consent to Road Scheme Back to Government for Redetermination

In January 2021, the UK government granted development consent for a road scheme for replacement junctions on the A38 in Derby, England. The decision was challenged on public law grounds. As a result, and before the case was heard, the Secretary of State accepted he had fallen into legal error. The inspector’s report, which informed the decision, was subject to the Secretary of State satisfying himself on the cumulative impact on climate change in the context of up-to-date targets. The inspector was not given sufficient data to reach conclusions on that himself. It appears the Secretary of State chose not to take steps to “satisfy himself” and proceeded with making the decision. That appears to be the basis upon which he conceded the legal challenge. It was reported that on March 18, 2021, the High Court made an order allowing the claim, quashing the decision and sending the application back to government for redetermination. (Mair Bain v Secretary of State for Transport (The A38 Derby Junctions Development Consent Order 2021), High Court of Justice, United Kingdom)

United Kingdom: Court Rejects Climate Change Claim Brought by Stop the A38 Expansion Group, but Allows Case to Proceed to Full Hearing

In August 2023, the Secretary of State granted development consent for replacement junctions on the A38 road in Derby, England. The decision was challenged on public law grounds, one of which related to how cumulative carbon assessments were carried out.

According to reports, on December 20, 2023, the High Court heard oral argument on whether the claim should proceed to trial. On the climate ground, two of the three sub-grounds were refused permission. The final sub-ground was stayed, pending the Court of Appeal’s decision in the appeal in Boswell v Secretary of State for Transport [2023] EWHC 1710 (Admin). In February 2024, that appeal was dismissed, seemingly bringing to an end the climate ground in the challenge to the A38 scheme.

There was, however, a further ground of challenge, which was not related to climate change. That ground will proceed to a full hearing, which was expected to take place on May 14, 2024. (Stop the A38 Expansion Group v Secretary of State for Transport (The A38 Derby Junctions Development Consent Order 2023), High Court of Justice, United Kingdom)

United Kingdom: Court Dismisses Challenge to Carbon Emissions Assessment in A47 Expansion Case

At various dates in 2022, the Secretary of State granted development consent for three road schemes along the A47 in Norfolk, England. The schemes were all within a 12-mile radius of the city of Norwich. They would create two new dual carriageways and develop an existing road junction. Before granting consent for each scheme, the Secretary of State assessed the carbon emissions expected to be generated by each scheme. He concluded that, when compared with the UK’s national carbon budgets, the increase in emissions from each scheme would not be significant.

The claimant brought public law challenges to each of the three decisions. He challenged the Secretary of State’s failure to compare the combined carbon emissions from the three A47 schemes against the UK’s national carbon budgets.

Giving judgment in July 2023, the High Court dismissed the claim, holding:

1. The question of what impacts should be addressed cumulatively; how the cumulative impacts might occur; whether the effects are likely to be significant and if so how they should be assessed are all matters of evaluative judgment.

2. The decision makers chose to assess the significance of carbon emission against a national target (UK carbon budgets). Other benchmarks were considered but discounted. The benchmark for the assessment of significance was a matter of judgement for the decision maker.

3. The use of national carbon budgets as a benchmark for the assessment of carbon emissions has been confirmed as a lawful approach (R (GOESA) v Eastleigh Borough Council).

4. The decision makers also proceeded on the basis that there is no geographic limit to the impact of GHG emissions. Their impact is on the global atmosphere. That is a scientific assessment to which the Court affords respect (R (Mott)v Environment Agency).

5. In circumstances where the significance of carbon emissions is being assessed against a national target and the impacts of GHG emissions do not have a geographical limit, there is a logical coherence to the Secretary of State’s decision not to undertake a comparison of combined emissions against the national target.

6. Whilst compliance with relevant industry guidance does not, of itself, demonstrate compliance with Environmental Impact Assessment Regulations, it is a legitimate way for the Court to assess the exercise of judgement in circumstances where there is no single prescribed approach to the assessment of cumulative carbon impacts or to gauging the significance of the climate impacts of a development project in the context of EIA.

7. There is no scientific rationale for the selection of a particular collection of local schemes for comparison against a national target.

8. The fact that there may be other approaches to the assessment of cumulative impacts, does not take the Secretary of State’s approach outside the range of reasonable responses available to him as the decision maker, or mean that it was based on flawed reasoning.

9. The Court was not persuaded that his approach to the assessment of cumulative carbon emissions was unlawful and/or in breach of the IEIA Regulations.

Giving judgment in February 2024, the Court of Appeal dismissed Dr Boswell’s appeal, for reasons broadly similar to those given by the High Court. The appeal focused on the duty in the EIA regulations to consider the significance of the cumulative GHG emissions. That duty had not been breached. Carbon emissions have no geographical boundary, so their impact is not confined to the local area. This differs from other environmental impacts which are local, such as noise or flood risk, where it makes sense to consider them in conjunction with other similar impacts to see if their cumulative impact may be greater than the sum of their individual impacts measured in isolation. The decision to not compare the combined emission against the national target was logically coherent. Such an assessment would have been scientifically pointless. Nor was it required under the EIA regulations, which included no hard-edged provisions supporting Dr Boswell’s case. These were all issues of fact and evaluation for the Secretary of State, who had acted rationally.

On March 21, 2024, Dr Boswell applied to the Supreme Court for permission to appeal. He confirmed this on his Crowd Justice page. That application is pending. (R (Boswell) v Secretary of State for Transport (A47 road extension), High Court of Justice, United Kingdom)

United Kingdom: Court Dismisses Claim Brought by Coal Action Network

In 2020, private company Energybuild Ltd applied to the UK Coal Authority to deconditionalize the remaining conditional part of a coal mine license relating to a site in Aberpergwm, Wales, which means transitioning from a conditional license that does not allow coal extraction to a full operational license that does. The purpose of the application was to expand mining operations. Emissions relating to the proposed expansion were estimated at approximately 100 million tonnes of CO2 from combustion of the coal and 1.17 million tonnes of methane gas, until the license expires in 2039.

In January 2022, the Coal Authority approved the application, resulting in a public law challenge by Coal Action Network, a group that aims to end coal use within the UK. The challenge was heard by the High Court in March 2023. In May 2023, the claim was dismissed.

The judge dismissed ground 1. Whilst Welsh Ministers now have the power to approve or decline authorizations for coal mining in Wales, that power was not applicable. The license in question was granted before the power came into force, and there was a presumption against legislation having retrospective effect which was applied here.

The judge dismissed ground 2, which alleged the Coal Authority had interpreted its statutory powers too narrowly and, as a result, ignored relevant considerations concerning climate policy and climate impacts. The matters relied on by the claimant were not material to the Coal Authority’s task, which was to determine whether the conditions precedent in the conditional licenses had been fulfilled. The Coal Policy Statement, relied on by the claimant, only expresses what the Welsh Ministers’ intend to do, or not do, in future with respect to coal extraction. The statement was not relevant to the Coal Authority’s limited task of determining whether the conditions precedent were satisfied. Nor were the adverse climate change impacts, and the effect on the Welsh Ministers’ ability to meet their climate change targets, relevant to whether the conditions precedent were satisfied.

Coal Action Network appealed the ground 1 findings, relating to the powers of the Welsh Ministers. The grounds of appeal focused on whether the legislation had retrospective effect, and on the scope of the mining company’s property rights under the European Convention on Human Rights. The Court of Appeal held, however, that these matters did not arise. The legislation, properly interpreted, did not grant functions on the Welsh Ministers in relation to licences granted prior to the relevant devolution legislation, enacted in 2018. In reaching this conclusion the Court of Appeal saw no proper basis for inferring that the meaning of the devolution legislation was affected by the background against which it was enacted of increased national and international recognition of the importance of efforts to address climate change. There were no legitimate aids to statutory interpretation which indicated that the extent of the devolution powers conferred were to be judged by reference to the national or international context in this way (judgments paragraphs 27, 34 and 47).

It is not known whether Coal Action Network intend to apply to the Supreme Court for permission to appeal. (R (Coal Action Network) v. Welsh Ministers and Coal Authority, Court of Appeal, United Kingdom)

NEW CASES

United Kingdom: High Court to Issue Decision Regarding Environmental Impact Assessment for Biomass Power Station

The Drax power station is a large biomass power station in Drax, North Yorkshire, England. In January 2024, the Secretary of State granted development consent to install carbon capture technology at the plant. That decision has been challenged on public law grounds. The claimant is Biofuelwatch UK, which campaigns against the burning of biofuels. It argues the decision was unlawful as the likely harmful environmental effects were not assessed or taken into account, in breach of the relevant environmental impact assessment (EIA) regulations. Specifically it is said the following regulations were breached:

• By zero-rating the carbon (CO2) emissions from biomass burning, i.e. treating it as producing no greenhouse gas (GHG) emissions, despite the obvious and indisputable fact that the combustion of biomass releases huge quantities of GHG emissions

• By excluding the CO2 emissions from the units to be fitted with the carbon capture technology

• By treating the works to construct and operate transport and storage facilities for captured carbon as a separate project. Biofuelwatch says the Humber Low Carbon Pipelines Project to transfer the CO2 and store it in rock formations under the North Sea is essential for the Carbon Capture Usage and Storage (CCUS) to operate as a whole and should have been treated as the same project for EIA purposes.

The impact of these errors on the decision is said to be significant, on the basis they allowed the Energy Secretary to treat the project as resulting in a net reduction in emissions of 7,975,620 tCO2e per annum. The next step is for the High Court to decide whether to give permission for the claim to proceed to a full hearing. (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, United Kingdom)

South Africa: Review Application Initiated Against Decision to Grant an Environmental Authorisation to Conduct Exploratory Drillings

In March 2024, Green Connection NPC and Natural Justice (herein the applicants) initiated a review application against the decision of the Director General of the Department of Minerals and Energy (the DG) and the Minister of Environment, Forestry and Fisheries (the Minister) granting an environmental authorization to conduct exploratory drillings off the South-West coast of South Africa. The application is based on the ground that the Environmental Impact Report (EIR) utilized by the DG and Minister to inform their decision did not adhere to the stipulated requirements outlined in the National Environmental Management Act 107 of 1998 (NEMA) and the Integrated Coastal Management Act 24 of 2001 (ICMA).

At issue is whether the decision to grant an environmental authorization to conduct exploratory drilling off the South-West coast should be set aside in that it was taken without proper assessment of the environmental impacts of the proposed project. In requesting the authorization to be set aside, it is the contention of the applicants that the decision to grant an environmental authorization was made without a thorough assessment of the environmental ramifications of the proposed project, as the EIR fails to meet the standards set forth by NEMA and ICMA. The EIR failed to consider climate change impacts associated with using any oil or gas discovered by the Proposed Project and evaluate the potential transboundary impacts of an oil spill resulting from a well blowout, particularly concerning contamination in Namibian and international waters. It does not adequately assess the extent of socio-economic impacts, including potential revenue losses for fishing operations and coastal communities in the area. The authorization itself flouts section 24 of the Constitution of the Republic of South Africa, which guarantees the right to a healthy environment for present and future generations. It infringes on the environmental impact assessment principles in the National Environmental Management Act (NEMA) to give effect to the constitutional rights related to environmental protection. Consequently, the decisions made regarding the environmental authorization for the proposed project are legally flawed and subject to review and potential reversal under the Promotion of Administrative Justice Act (PAJA).

In relation to jurisdiction, Green Connection NPC and Natural Justice assert that the requirements for loca standi and jurisdiction have been satisfied, in that the application is brought in their own interest, in the public interest in terms of section 38(1)(c) of the Constitution and section 32(1)(d) of NEMA and in the interest of protecting the environment in terms of section 32(1)(e) of NEMA, and that the adverse effects of the decisions under review will be experienced in the Western Cape. Hence, the Court has jurisdiction under section 1 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).  (Review Application Against Decision to Grant an Environmental Authorisation to Conduct Exploratory Drillings, High Court, South Africa)

Peru: Suit Alleges Government Fails to Mitigate Andean Glacier Retreat Facing Collapse Due to Climate Change

The plaintiff presented an amparo action against the government (Ministry of Environment) for failing to perform its duty to mitigate an Andean glacier retreat, which faces collapse due to climate change, and remains an environmental threat to the majority of the Peruvian population. Here, the plaintiff presented a proposal to protect the snow-capped mountains and mitigate the processes of loss of mountains due to glacial water sources, creating more significant social equity and increasing territorial environmental value. The plaintiff argues that while the government was aware of the problem and had seen the proposal, they failed to act on it or take any significant measures to help mitigate it. As such, the government ignored the climate emergency and its duty to mitigate it. The plaintiff relied on the constitutional right to a healthy environment. This lawsuit was dismissed on first instance but later admitted in appeal with suspensive effect. (Valdivia Herrera v. Ministry of the Environment, High Court of Lima, Peru)

Peru: NGO Sues to Determine Whether Peru Complies with Regulations Under Climate Change Law

The Institute for the Legal Defense of the Environment and Sustainable Development Association of Peru (IDLADS) submitted a petition to order the Ministry of the Environment of Peru (MINAM) to comply with the Eleventh Final Complementary Provision of the Regulations of the Climate Change Act. The provision states that after 180 days of the regulation being put in place, the Ministry should have approved guidelines or methodological documents for REDD+ actions with the participation of state and non-state actors. These REDD+ actions refer to a process that supports countries’ efforts to reduce emissions from deforestation and forest degradation, foster conservation, sustainable management of forests, and enhance forest carbon stocks. (IDLADS v. Ministry of the Environment (Enforcement Action), High Court of Lima, Peru)

Peru: NGO Submits Petition to Ensure Government Funding of Climate Change Adaptation

The Institute for the Legal Defense of the Environment and Sustainable Development Association of Peru (IDLADS) submitted a petition to order the Ministry of the Environment (MINAM) to comply with the Sixteenth Final Complementary Provision of the Regulations of the Climate Change Act. This provision states that MINAM should have in place a guarantee fund to promote investment in renewable and clean energy, food, security, technological development, and innovation in climate change adaptation, and other services for, and with the participation of, native peoples. The Court found this action meritorious and approved of the Enforcement Action. (IDLADS v. MINAM (Enforcement Action for Guarantee Fund), High Court of Lima, Peru)

Peru: IDLADS Sues for Enforcement of Climate Change Act’s Regulatory Standards

IDLADS (Instituto de Defensa Legal del Ambiente y Desarrollo Sostenible) brought an Enforcement Action against the Ministry of the Environment (MINAM) under the Tenth Final Complementary Provision of the Climate Change Act, which states that MINAM has to approve guidelines, methodological documents, guides, or procedures to approve management tools for climate change actions. (IDLADS v. MINAM Enforcement Action (Approval of Guidelines and Procedures), Superior Court of Lima, Peru)

Peru: IDLADS Petitions the Ministry of Environment to Carry Out Duties Under Climate Change Act

IDLADS submitted a petition under the Seventeenth Final Complementary Provision of the Regulations of the Climate Change Act. This provision stipulates that MINAM has to prepare a regulatory proposal that classifies and punishes actions related to acts or conducts on forest carbon capture and REDD+ in coordination with national organizations representing indigenous or native peoples within a period of 180 working days. (IDLADS v. MINAM Enforcement Action (Regulating Forest Carbon Capture Infringement), Superior Court of Lima, Peru)

International Criminal Court: World Council of Churches Pushes ICC to Consider Potential Crimes Against Humanity by Fossil Fuel Companies

On December 14, 2023, the World Council of Churches (WCC), a Christian organization for the promotion of ecumenism, submitted a letter addressed to the Assembly of State Parties to the International Criminal Court (ICC) titled “Climate Change Disinformation: The Need for Legal Development,” arguing for an amendment of Article 7 of the Rome Statute.

Article 7 of the Rome Statute describes the acts that could be considered as “crimes against humanity,” which would fall under the jurisdiction of the ICC. According to this provision, “crime against humanity” means any of the listed acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. Under the Rome Statute, only the following acts could be categorized as crimes against humanity: murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; prosecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law; enforced disappearance of persons; the crime of apartheid, and; other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

In its letter, the WCC highlights the impunity of fossil fuel companies spreading climate change disinformation. The organization recalls that human activities are mainly responsible for the large-scale emissions of GHG which major oil companies have for long had knowledge of. In spite of this, many oil companies continue to promote public doubt on the veracity of climate change and its causes. The letter further notes that legal action at the national level to attempt to hold these companies responsible inevitably stumbled on the limits of national jurisdictions to tackle challenges with a global impact. These limits are equally present in international criminal law, prompting the WCC to propose a new precedent and/or amendment of the Rome Statute.

The WCC noted that the Rome Statute does not provide protection against the effects of the burning of fossil fuel or climate disinformation campaigns, prompting the organization to propose to include these acts in the definition of “crimes against humanity.” World Council of Churches Claim on Climate Disinformation, International Criminal Court)

Ireland: Friends of the Irish Environment Sues to Require Government to Meet Emissions Reductions Targets

In 2020, Friends of the Irish Environment successfully challenged the government’s National Mitigation Plan, with the Supreme Court determining that the Plan fell short of the specificity that the Climate Action and Low Carbon Development Act 2015 (as amended) requires because a reasonable reader of the Plan would not understand how Ireland will achieve its binding 2050 emission reduction targets. Since 2020, the government has implemented a series of Climate Action Plans that lay out its plans for meeting its legally binding emission reduction requirements, in line with the 2020 ruling. Friends of the Irish Environment is challenging the 2023 Climate Action Plan and its corresponding Annex of Actions, on the grounds that the Plan does not comply with the requirements of sections 4(2)(a), 4(2)(b) and 4(3) of the Climate Action and Low Carbon Development Act 2015 (as amended).

Friends of the Irish Environment has laid out the following submissions:

1. The State has not “ensured” that the Plan is “consistent” with the Carbon Budget Programme contrary to the requirements of section 4(2)(a) of the 2015 Act.

2. The Plan does not contain a roadmap of actions that include the sector specific actions “that are required to comply with the carbon budget and sectoral emissions ceiling for the period to which the plan relates” (section 4(2)(b)(i) of the 2015 Act) or “that are required to address any failure or projected failure, to comply with the carbon budget and sectoral emissions ceiling for the period to which the plan relates” ((section 4(2)(b)(ii) of the 2015 Act).

3. The Plan’s Annex of Actions does not specify measures that will “in the Minister’s opinion, be required for the first budget period in a carbon budget programme” for the purposes of section 4(3)(a) of the 2015 Act or the policies identified in 4(3)(b) of the 2015 Act.

The focus of the case is on ensuring that the Climate Action Plan 2023 and its Annex of Actions are consistent with Ireland’s obligations under the Climate Action and Low Carbon Development Act 2015 (as amended); and that it includes quantification of the emissions reductions expected from the Plan and adopts any further measures necessary to comply with the 2021-2025 carbon budget. (Friends of the Irish Environment v. Government of Ireland, Court of Appeal, Ireland)

Spain: Renewable Energy Company Accuses Fossil Fuel Company of Greenwashing

On February 21, 2024, Iberdrola Energía España, a major renewable energy company, submitted a claim before the Commercial Court of Santander, in Spain, on the basis that Repsol commits irregularities such as “greenwashing,” “marketing strategies aimed at exaggerating, or directly falsifying, a company’s commitment to sustainability and the environment” and “acts of deception” and “misleading omissions.” Iberdrola states that Repsol, a major Spanish fossil fuel player, will continue to grow in electricity customers and will continue to offer society present and future energy solutions, such as “renewable fuels” which are a “threat to the false discourse that electrification is the only solution to reduce CO2 emissions in transportation.” (Iberdrola and others vs. Repsol, Commercial Court, Spain)

Netherlands: Greenpeace and Dutch Citizens Sue State About Lack of Climate Adaptation and Mitigation Action

On January 11, 2024, Greenpeace Netherlands and eight Dutch citizens of the island of Bonaire sued the Dutch State for the lack of climate adaptation and mitigation action. The plaintiffs argue that the Dutch State has not taken sufficient climate adaptation and mitigation measures to protect the people of Bonaire, a small Dutch island in the Caribbean near Venezuela, against the negative effects of climate change on human rights, in line with the 1.5°C goal of the Paris Agreement and human rights treaties. The complaint was launched after plaintiffs issued a warning letter in 2023, demanding to meet with Ministries in The Hague to discuss better climate adaptation policy and action for the island, as well as more resources devoted to adaptation.

In terms of legal bases, the plaintiffs hold that the Dutch State is committing an “unlawful act” (onrechtmatige daad) under Article 6:162 of the Civil Code by failing to implement adequate climate adaptation and mitigation action, in a way that protects inhabitants’ international human rights. The case follows legal reasoning by the Dutch Supreme Court in the landmark Urgenda-case, as well as in the judgement of the Dutch District Court in the Hague in the Shell case. The rights at stake in the present case include the right to life and the right to private life, family and the home in Articles 2 and 8 of the European Convention on Human Rights (ECHR), the prohibition of discrimination in Article 14 ECHR and the right to culture of people living on the Caribbean island under Article 27 of the International Covenant on Civil and Political Rights (ICCPR). In support, plaintiffs also invoke several provisions of the Aarhus Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters on relevant procedural rights and obligations, e.g., Articles 5, 6 and 7 of the Aarhus Convention.

Regarding the right to culture and non-discrimination under Article 27, plaintiffs explain that the inhabitants of Bonaire are a minority within the Kingdom of the Netherlands, with a special and deeply rooted shared culture and history tied to their island. The complaint provides ample detail on the colonial history of the islands, the culture of the island and its inhabitants, as well as its current legal status as a “special” municipality of the European part of the Netherlands. The plaintiffs claim that as inhabitants of Bonaire, they are not treated the same as Dutch citizens living in the European part of the Netherlands, because for ‘European Netherlands’ major adaptation works have long been planned and undertaken, resources reserved and devoted, as well as permanent, ongoing evaluations and assessments of the situation. There is no comparable protection for Bonaire. In fact, plaintiffs argue that in light of the deep structural inequality between the quality of life on Bonaire (i.e., very high levels of poverty) and those living in the European part of the Netherlands, there is reason to argue that the State should pay extra attention to the situation on Bonaire. They argue that this also follows from case law under Article 14 ECHR, and the principle of equality under Article 1 of the Dutch constitution.

Regarding Articles 2 and 8 ECHR and mitigation, the plaintiffs build on the legal reasoning previously endorsed by the Dutch Supreme Court in the Urgenda case. Notably, Article 2 and 8 ECHR entail positive legal obligations for the Dutch State to do its fair share to prevent dangerous climate change by adequately mitigating GHG emissions. The plaintiffs argue that based on the Netherlands’ historical emissions, compared to other countries, especially in the developing world, it is no longer fair for the Netherlands to still emit any GHGs. They also refer to studies indicating that it is feasible for the Netherlands to achieve net-zero emissions in the Netherlands by 2040, rather than 2050. As such, this is what the plaintiffs consider legally necessary for the Netherlands to do as its minimum fair share to prevent dangerous climate change. According to the plaintiffs, the negative effects on the lives of people on Bonaire are already significant and will only increase if no action is taken. Climate change threatens, among other things, their lives, their livelihoods, their health, their cultural heritage, nature, and the possibility for future generations to live on in the same way on Bonaire.

The plaintiffs extend their legal reasoning on mitigation also to adaptation. They note that there is “widespread consensus” in international climate policy and law, as well as amongst human rights bodies, that there is a need to “rapidly accelerate” the implementation of adaptation measures. Plaintiffs argue that the State has a legal obligation to take all appropriate measures that may be reasonably necessary, in a timely and consistent manner. This obligation is based on due diligence, and must take into the special needs and disproportionate vulnerability of the inhabitants of Bonaire, and the complex historical and political context of the islands. They also point to other successful climate litigation on adaptation in this regard, such as the Torres Straight Islanders case at the UN Human Rights Committee. (Greenpeace Netherlands and 8 citizens of Bonaire v. The Netherlands, District Court North Holland, Netherlands)

United Kingdom: Community Group Challenges Policy for Energy Efficiency Standards that Would Limit Local Authorities’ Ability to Pursue More Ambitious Standards

In December 2023, the UK government, via a written statement to parliament, updated its policies on the energy efficiency standards for new-build housing. According to the statement, the government does not expect local-government plan-makers to set local energy efficiency standards that go beyond current or planned buildings regulations set at the national level. Any proposed policies that go beyond national standards should be rejected, subject to a limited exception. Where existing policies go beyond national standards, they should be “applied flexibly” to decisions on planning applications.

In February 2024, it was reported that campaign group Rights Community Action had issued a legal challenge to the policy statement. They were supported by Good Law Project. In April 2024, the High Court granted permission for the claim to proceed to a full hearing, directing that it would be “desirable” for that hearing to take place before the end of July 2024. It is not known whether a hearing has been listed or what the grounds of challenge are. (Rights Community Action v Secretary of State for Levelling Up, Housing and Communities (challenge to housing policy on energy efficiency standards), High Court of Justice, United Kingdom)

United Kingdom: Sustainable Food Systems NGO Challenges Free Trade Deal that Would Increase Meat Sales, Relative Carbon Emissions

Global Feedback is a campaigning organization concerned with a sustainable food system. In July 2023, it brought a challenge on public law grounds against the UK government’s assessment of the environmental impacts of the UK-Australia Free Trade Agreement. The free trade deal gives Australian producers significant access to the UK market to sell meat.

The government’s impact assessment concluded it was not possible to assess the impact of carbon leakage on the basis data on relative carbon emissions associated with cattle meat was too “variable.” Challenging this, Feedback relies on evidence that consistently shows that the emissions intensity from Australian beef is substantially higher than that from the UK.

It argues that the UK government is bound by various legal and international obligations to take climate change, biodiversity, and emissions reduction into account when setting trade policies, including the United Nations Framework Convention on Climate Change (UNFCCC) and the 2015 Paris Agreement.

Feedback also argues that the government’s impact assessment failed to quantify the carbon impact of any changes to domestic UK meat and dairy consumption because of tariff-free imports of Australian food. It is said the greater availability of cheaper meat on the UK market will increase consumption and undermine recommendations from both the independent review of the National Food Strategy, commissioned by the government in 2019, and the UK Climate Change Committee (CCC), that substantial reductions in meat and dairy are essential to tackle climate change.

In February 2024, it was reported that the High Court had granted permission for the claim to proceed to a full hearing. (Global Feedback v Secretary of State for Environment, Food and Rural Affairs (UK-Australia Free Trade Agreement), High Court of Justice, United Kingdom)

United Kingdom: Challenge to Food Strategy Reviewed by Court of Appeal

In June 2022, the UK government published its Food Strategy. According to the government the strategy “will help ensure we deliver our ambition for a prosperous agri-food sector, and that healthier and more sustainable diets can be achieved by all.” The Strategy was challenged on public law grounds by Global Feedback, a campaigning organization concerned with a sustainable food system. At issue is whether the Secretary of State relied on the Food Strategy to discharge the duty under section 13 of the Climate Change Act (duty to prepare proposals and policies for meeting the UK carbon budgets).

Both the independent review of the National Food Strategy written by Henry Dimbleby and commissioned by the government in 2019 and the UK Climate Change Committee (CCC) have identified substantial reductions in meat and dairy as essential to tackle climate change. In 2020, it recommended a 20% reduction in meat and dairy consumption by 2030, and a 35% reduction for meat by 2050, as part of its Balanced Net Zero Pathway scenario. Feedback argued that the government’s failure to incorporate this advice, in particular the CCC’s recommendations, or explain why it opted to not adopt their expert recommendations was unlawful.

In December 2022, the High Court refused permission for the claim to proceed to trial. However in June 2023, the Court of Appeal reversed that decision. In October 2023, the Court of Appeal heard the claim, reserving judgment to a later date. (Global Feedback Ltd v Secretary of State for Environment, Food & Rural Affairs (challenge to the Food Strategy), Court of Appeal, United Kingdom)

United Kingdom: Multiple Environmental NGOs Challenge Legality of Government’s Economy-Wide Plan for Meeting Carbon Budgets

In June 2021, the UK’s sixth carbon budget was set, covering the period 2033 to 2037. In November 2021, the government published its strategy for meeting that and the other preceding carbon budgets. However that strategy was held to be in breach of the Climate Change Act 2008 - R(Friends of the Earth, ClientEarth and Good Law Project) v SSBEIS [2022] EWHC 1841 (Admin). The court ordered government to revise its strategy to correct the legal errors identified. That revised strategy – the Carbon Budget Delivery Plan – was published in March 2023. However, that too was challenged on public law grounds in claims brought by Friends of the Earth, ClientEarth and the Good Law Project.

Friends of the Earth’s challenge raises grounds under both section 13 and section 14 of the Climate Change Act. Under section 13, Friends of the Earth argue that the Secretary of State did not consider delivery risk in a lawful way, and that there was no legally sufficient basis for the Secretary of State to conclude that the proposals and policies “will enable” the carbon budgets to be met. Further, Friends of the Earth argue that the Secretary of State unlawfully failed to put forward proposals that “must” contribute to sustainable development. Under section 14, Friends of the Earth argue that the Plan unlawfully does not include information obviously material to the critical issue of risk to the delivery of the carbon budgets.

Good Law Project’s challenge focuses on the government’s refusal to include a proper assessment of the delivery risk associated with each of the policies and proposals in the Plan. Good Law Project argue that this is unlawful because it is a breach of section 14, which requires the Secretary of State to publish sufficient information to allow meaningful scrutiny of the government’s net zero policies.

ClientEarth’s challenge focuses on the government’s failure to have regard to considerations that are legally essential under section 13, related to the risks of its plans not delivering the emissions savings required to meet the UK’s climate targets. ClientEarth also argues that the government’s assumption that the projected emissions savings from its policies will be delivered “in full” was not rational having regard to the government’s own assessment of delivery risks to key policies.

The High Court heard the three cases in February 2024, reserving judgment. (R (Friends of the Earth Ltd) v Secretary of State for Energy Security and Net Zero; ClientEarth v SSESNZ; Good Law Project v SSESNZ (challenges to the Carbon Budget Delivery Plan), High Court of Justice, United Kingdom)

United Kingdom: Disability Rights Activist and Others Challenge Law to Comply with Climate Change Act 2008

A disability rights activist, a campaigner trying to save his home, and Friends of the Earth have together brought a public law challenge to the UK’s ‘National Adaptation Programme 3’ (or ‘NAP3’). The claim focuses on legal compliance with section 58 of the Climate Change Act 2008, as well as breaches of human rights.

One co-claimant is a care home resident particularly vulnerable to overheating during seasonal heatwaves, the other is at imminent risk of losing his home and possessions to rising sea levels and coastal erosion. Between them they allege that NAP3 is so deficient that it breaches their human rights to: life (Article 2), home (Article 8), possessions (A1P1), and that they are discriminated against on account of their vulnerable situations (Article 14).

The case was filed on Oct. 17, 2023, and is believed to be the first of its kind in the UK.

The grounds are as follows.

Ground 1: misdirection in law as to the correct approach to setting ‘objectives’ under s58(1)(a). Rather than setting lawful specific objectives the Secretary of State has included vague ‘risk reduction goals’. The claimants consider this is inconsistent with the statutory language in s58, the overall statutory scheme, and its fundamental purpose.

Ground 2: unlawful failure to consider and/or publish information on the risk(s) to delivery of the plans and proposals in NAP3. There is no evidence this assessment was done.

Ground 3: unlawful failure to discharge the ‘public sector equality duty’, in not lawfully considering the unequal impacts of NAP3 on protected groups in society (such as age, race or disability).

Ground 4: breach of section 6 of the Human Rights Act 1998 due to unlawful interferences with the individual co-claimants’ rights under articles 2, 8, 14 and article 1 of protocol 1 of the European Convention on Human Rights. This is partly due to the failures in ground 1, but also separately due to the content and deficiencies in NAP3 itself.

In relation to Ground 4 the following issues are relevant to the co-claimants’ circumstances:

• The well-established but urgent need for long-term policy and protected funding to enable care-homes (and similar healthcare settings) to adapt to excessive heat. It is said this remains absent in NAP3 despite the increasing frequency and severity of annual heatwaves.
• There being no new policy to manage overheating risks in existing health and social care buildings, such that they are properly refurbished as soon as reasonably practicable.
• A lack of a commitment to provide adequate resources to support communities at imminent risk of being lost to erosion and flooding, including as to the established mental health and emotional wellbeing impacts for those affected.
• Gaps, inconsistency and uncertainty in the potential allocation of funding provided for a range of areas, in particular for those communities that must (or are likely to have to) relocate and have their homes demolished.
• There being no insurance or compensation schemes available for the worst affected by coastal erosion and who lose their homes.
• No evidence of there being an express consideration, or reasoned analysis, of what a fair balance to strike would be between doing more to safeguard the human rights of vulnerable people and the interests of wider society.

In pre-action correspondence, the Secretary of State has denied any wrongdoing. The claimants now await a more considered response, following which the court must decide whether to grant permission for the case to proceed to full trial. If permission is granted for judicial review, a trial would be expected in mid to late 2024. (R(Friends of the Earth Ltd, Mr Kevin Jordan and Mr Doug Paulley) v Secretary of State for Environment, Rood & Rural Affairs (challenge to the Third National Adaptation Programme), High Court of Justice, United Kingdom)

United Kingdom: Greenpeace Challenges Gas Field Development Project

In July 2022, Greenpeace filed a legal challenge against the North Sea Transition Authority’s (previously the Oil and Gas Authority) approval of the Jackdaw gas field development project (Jackdaw). The Jackdaw field is located in the North Sea, off the east coast of Scotland, and is owned by BG International, an affiliate of Shell UK Limited. The North Sea Transition Authority (NSTA) is a private company owned by the Secretary of State for Business, Energy and Industrial Strategy (BEIS).

Plans for the project were previously rejected on the grounds of potential environmental harms but were resubmitted by Shell this year. After the Offshore Petroleum Regulatory for Environment and Decommissioning (OPRED), the UK’s oil and gas regulatory agency, reviewed Jackdaw’s environmental statement and found that it would not have a significant impact on the environment, NTSA approved the project. Greenpeace claims that OPRED did not factor the CO2 emissions that would be produced by burning the gas extracted from Jackdaw in its impact assessment of the project, and therefore its approval should be revoked. According to media reports, BEIS has stated that Jackdaw “will boost domestic gas supply in the years to come.” In these same reports, Greenpeace has countered that there is “no guarantee” that the gas produced from Jackdaw will be consumed in the UK and contribute to alleviating the UK’s current energy crisis, given that Shell is under no obligation to supply the UK with gas produced from the project.

A March 2023 news article suggested the claim had been stayed pending the Supreme Court’s decision in R(Finch) v Surrey County Council [2022] 8 WLUK 327. (Greenpeace v. North Sea Transition Authority, High Court of Justice, United Kingdom)

United Kingdom: Secretary of State Sued for Loosening Climate Regulations

On September 20, 2023, the Prime Minister gave a speech setting out his “new approach to Net Zero.” The accompanying press release stated that due to the “UK’s over-delivery on reducing emissions” there was “space to take a more pragmatic, proportionate, and realistic approach to reaching net zero.” A number of policy changes were announced. The 2030 ban on the sale of petrol and diesel cars was delayed to 2035. Policies requiring landlords to upgrade the energy efficiency of their properties were dropped. And the ban on new fossil fuel boilers for certain households was delayed.

On December 1, 2023, environmentalist and TV personality Chris Packham announced a public law challenge to these decisions. The grounds of claim are:

• The obligation under Section 13 Climate Change Act 2008 to have proposals and policies to meet carbon budgets is continuing and the proposals and policies must be current. If they are altered, there must always be plans in place to meet the budgets. The secretaries of state breached this obligation.
• There was a failure to take into account considerations listed under Section 10 of the Climate Change Act, such as the risk to delivery of proposals and policies and to the achievement of the carbon budgets and the 2050 net zero target.
• There was a failure to consult on the changes, particularly a failure to take into account ongoing consultations about off-grid heating and minimum energy efficiency in rental properties
• The decisions were based on misinformation
• There was a breach of the duty to inform the public of the reasons for the decisions to change the policies

On March 4, 2024, it was reported the High Court had granted permission for the first three grounds to proceed to full trial. On the refusal of permission for the final two grounds, Mr Packham would have been entitled to request a permission hearing to challenge that. It is not known whether he has done so, or whether he has opted instead to proceed to trial on the three grounds for which permission was granted. (R (Packham) v Secretary of State for Energy Security and Net Zero and Secretary of State for Transport (challenge to the ‘new approach to Net Zero’), High Court of Justice, United Kingdom)

United Kingdom: Airline Companies Sued over Misleading Claims About Emissions Reductions

In November 2023, Possible submitted complaints to the UK National Contact Point (NCP) concerning statements by Virgin Atlantic and British Airways. The NCP is part of the Department for Business and Trade. It is responsible for promoting the OECD guidelines for multinational enterprises on responsible business conduct and for operating the complaints mechanism in the guidelines.

Both airlines are said to have made a significant number of misleading claims about reducing emissions, efficiency, and alternative fuels. Additionally, Virgin is said to have made misleading claims about net zero, and British Airways about offsets. These claims, individually and collectively, are said to downplay the current and likely future impact of each airline’s operations on the climate. This is because the statements convey the incorrect impression that the airlines are in the process of eliminating the environmental impact of their flights. It is said this tells consumers that they can continue to fly frequently without worrying unduly about their carbon footprint, and it tells policymakers that they do not need to take steps to moderate the growth in demand for flying. Possible’s position is that if the world hopes to achieve the goals of the Paris Agreement and avoid the worst impacts of climate change, both messages are false. (Complaint against Virgin Atlantic and British Airways under the OECD Guidelines brought by Possible, National Contact Point for the OECD Guidelines, United Kingdom)