November 2021 Updates to the Climate Case Charts

By Margaret Barry and Maria Antonia Tigre,

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

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #152.

FEATURED CASE

Supreme Court Agreed to Hear Case Concerning EPA Authority to Regulate Carbon Emissions at Existing Power Plants

On October 29, 2021, the U.S. Supreme Court granted four petitions for writs of certiorari seeking review of the D.C. Circuit’s January 2021 decision vacating the U.S. Environmental Protection Agency’s (EPA’s) repeal and replacement of the Obama administration’s Clean Power Plan regulations for controlling carbon emissions from existing power plants. One petition was filed by West Virginia and 18 other states. Two coal companies each filed a petition, and North Dakota filed a separate petition. The questions presented in the four petitions and accepted for review by the Supreme Court are as follows:

• In 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, did Congress constitutionally authorize the Environmental Protection Agency to issue significant rules—including those capable of reshaping the nation's electricity grids and unilaterally decarbonizing virtually any sector of the economy—without any limits on what the agency can require so long as it considers cost, nonair impacts, and energy requirements? West Virginia v. EPA, No. 20-1530 (U.S.)
• Whether 42 U.S.C. § 7411(d), which authorizes the EPA to impose standards "for any existing source" based on limits "achievable through the application of the best system of emission reduction" that has been "adequately demonstrated," grants the EPA authority not only to impose standards based on technology and methods that can be applied at and achieved by that existing source, but also allows the agency to develop industry-wide systems like cap-and-trade regimes. North American Coal Corporation v. EPA, No. 20-1531 (U.S.)
• Whether 42 U.S.C. § 7411(d) clearly authorizes EPA to decide such matters of vast economic and political significance as whether and how to restructure the nation's energy system. (The Court did not grant certiorari on a second question presented in this petition.) Westmoreland Mining Holdings LLC v. EPA, No. 20-1778  (U.S.)
• Can EPA promulgate regulations for existing stationary sources that require States to apply binding nationwide "performance standards" at a generation-sector-wide level, instead of at the individual source level, and can those regulations deprive States of all implementation and decision making power in creating their Section 111(d) plans? North Dakota v. EPA, No. 20-1780 (U.S.)

DECISIONS AND SETTLEMENTS

Tenth Circuit Rejected NEPA Climate Change Challenges to Timber Project

The Tenth Circuit Court of Appeals rejected National Environmental Policy Act (NEPA) claims against the U.S. Forest Service’s approval of a timber project in the White River National Forest. The Tenth Circuit found that dismissal of claims that the Forest Service failed to adequately consider the project’s climate change impacts was warranted because the petitioners failed to cite the administrative record—they instead relied on extra-record materials including advocacy group websites and Wikipedia articles about wildfires. The Tenth Circuit also rejected claims that an environmental impact statement was required either because the failure to consider potential climate impacts was controversial (or the project itself was controversial) or because the project left “considerable uncertainty” about the project’s impacts, including effects on climate change. Swomley v. Schroyer, No. 20-1335 (10th Cir. Oct. 15, 2021)

Chief Justice Declined to Stay D.C. Circuit Mandate Vacating Pipeline Approval

Chief Justice John Roberts denied pipeline companies’ application seeking to stay issuance of the D.C. Circuit’s mandate in a case in which the D.C. Circuit vacated the Federal Energy Regulatory Commission’s (FERC’s) authorization of a natural gas pipeline in the St. Louis area. The D.C. Circuit found that FERC acted arbitrarily and capriciously by failing to address evidence of self-dealing by the applicant. The court also faulted FERC for engaging in only a “cursory balancing” of public benefits and adverse impacts. Spire Missouri Inc. v. Environmental Defense Fund, No. 21A56 (U.S. Oct. 15, 2021)

D.C. Circuit Denied Rehearing of Decision Requiring Additional Climate Change Analysis for LNG Terminals

The D.C. Circuit Court of Appeals denied a company’s petition for panel rehearing of the court’s August 2021 decision that found that FERC failed to adequately analyze the climate change and environmental justice impacts of two liquefied natural gas (LNG) export terminals on the Brownsville Shipping Channel in Texas and two pipelines that would carry LNG to one of the terminals. The decision required FERC to consider whether a NEPA regulation required FERC to apply the social cost of carbon or another framework to evaluate the impacts of the pipeline’s greenhouse gas emissions. Vecinos para el Bienestar de la Comunidad Costera v. Federal Energy Regulatory Commission, No. 20-1045 (D.C. Cir. Oct. 15, 2021)

Plaintiffs Voluntarily Dismissed Challenge to Groundwater Pumping Program

On October 28, 2021, the Ninth Circuit granted plaintiffs’ motion to voluntarily dismiss their appeal of the denial of a preliminary injunction in their lawsuit challenging a program to incentivize groundwater pumping as an alternative to pumping water from the Sacramento River. The plaintiffs’ allegations included that the federal defendants failed to take a hard look at the program’s greenhouse gas emissions. Four days later, the plaintiffs filed a notice of voluntary dismissal in the federal district court for the Northern District of California. In September, the plaintiffs had asked the Ninth Circuit to enjoin the program pending appeal. The federal respondents opposed this request, noting that the program would end at the end of October and that there was no likelihood of immediate, irreparable harm, including because it was estimated that only one-third of the approved amount of groundwater might be used before the program ended. AquAlliance v. U.S. Bureau of Reclamation, No. 21-16539 (9th Cir. Oct. 28, 2021), No. 2:21-cv-01533 (E.D. Cal. Nov. 1, 2021)

Federal Court Said Complaint Did Not State Marine Mammals Protection Act Claim

The federal district court for the Northern District of California granted a motion to dismiss two conservation groups’ lawsuit asserting that the U.S. Fish and Wildlife Service (FWS) failed to revise Stock Assessment Reports for nine stocks of sea otters, polar bears, walruses, and manatees protected under the Marine Mammals Protection Act (MMPA). The court found that the plaintiffs had representational standing to bring their claims based on their alleged lack of information, lack of opportunity to comment, and potential downstream effects of the defendants’ failures to revise the Stock Assessment Reports. The court further found, however, that the plaintiffs had not sufficiently alleged a violation of the FWS’s MMPA duties. Although the MMPA requires annual or triennial reviews of stock assessments, the court said the plaintiffs had not adequately alleged that the FWS did not conduct them. To the extent claims were based on allegations that the defendants should have revised the Stock Assessment Reports due to alleged changes such as climate change-induced impacts on mammals’ habitats, the court said the plaintiffs’ allegations were not adequate to establish that revisions were required. The court gave the plaintiffs until November 5, 2021 to file an amended complaint addressing the deficiencies identified in its decision. Center for Biological Diversity v. Haaland, No. 3:21-cv-01182 (N.D. Cal. Oct. 20, 2021)

Colorado Federal Court Found Issues of Fact as to Whether Coal Mine’s Emissions Counted Towards Permitting Threshold; Parties Announced Potential Settlement

On September 30, 2021, the federal district court for the District of Colorado found that four environmental groups had standing in their Clean Air Act citizen suit against the operators of a coal mine for operating without a Title V operating permit, but the court denied the groups’ motion for summary judgment on the Title V claim. The court found that the plaintiffs had not established the absence of an issue of material fact as to whether the mine’s emissions were “fugitive” emissions that did not count towards the permitting threshold. In their motion for summary judgment on the issue of standing, the plaintiffs argued that the relief they sought would redress their injuries, including because the permits would likely require reduction of emissions of both volatile organic compounds and methane, which are emitted from the mine’s ventilation air system. On October 25, the parties filed a notice of their agreement in principle to settle the case. The court granted a motion to stay all deadlines in the litigation pending approval of the settlement and directed the parties to file the motion for approval or a report on the status of negotiations by November 19. WildEarth Guardians v. Mountain Coal Co., No. 20-cv-01342 (D. Colo. Sept. 30, 2021)

Federal Court Set Schedule for Determinations on Endangered Species Act Listing of Four Freshwater Species

The federal district court for the District of Court accepted federal defendants’ proposed schedule for fulfilling their statutory obligation under the Endangered Species Act to issue 12-month findings on whether listing of four freshwater aquatic species was warranted. The complaint alleged that the plaintiff submitted petition to list the species in 2013, 2014, and 2016;  two of the four species—the Rio Grande chub and the Rio Grande sucker—were alleged to face threats from climate change. The plaintiff asked the court to require that the 12-month findings be completed within the nine months of the close of summary judgment briefing, but the court instead granted the defendants’ request that they be given until September 30, 2023 to complete 12-month findings for the sicklefin chub and sturgeon chub, and until June 14, 2024 for the Rio Grande chub and the Rio Grande sucker. WildEarth Guardians v. Haaland, No. 20-cv-1035 (D.D.C. Sept. 30, 2021)

Federal Court Dismissed Energy Executive’s Defamation Claims Against Writers Who Said He Was “Killing the Planet”

The federal district court for the Southern District of New York dismissed defamation and false light invasion of privacy claims brought by an individual who had been chief executive officer (CEO) of a coal company against two individual writers and a media company. The defendants published articles on their websites assigning blame for climate change to the plaintiff and 99 other CEOs and calling them “ecocidal planet killers” and the “top 100 people killing the planet.” The court found that these conclusions were not actionable because they were “clearly hyperbolic and … readily understood as representing the authors’ subjective viewpoints, not objective assertions of fact capable of being objectively disproven.” The court also noted that the authors cited a report prepared by the nonprofit group CDP on the “2017 Carbon Majors” as the basis for their conclusions. The court was not persuaded by the plaintiff’s argument that he was mistakenly identified as the CEO of the coal company, when the coal business had been spun off from his company after the period of time covered by the CDP report. The court also found that New York law would apply because its interest in regulating the allegedly tortious conduct was more significant than the interest of Pennsylvania, where the plaintiff was domiciled. Because New York does not recognize a tort of false light invasion of privacy, the court dismissed this claim. DeIuliis v. Engel, No. 20 Civ. 3252 (S.D.N.Y. Sept. 27, 2021)

Federal Court Denied Pro Se Plaintiff’s Request for Order Barring U.S. from Reentering Paris Climate Accord

The federal district court for the Eastern District of Texas denied a pro se plaintiff’s motions for preliminary injunctive relief in a lawsuit challenging the validity of the Paris Climate Accord. A magistrate judge characterized the plaintiff as alleging that President Biden did not have authority to reenter the United States into the Paris Climate Accord because it was a treaty requiring the Senate’s advice and consent. In considering the motion for a temporary restraining order barring the U.S. from reentering the Paris Climate Accord, the magistrate found that the plaintiff had not shown a substantial likelihood that he would succeed on the merits since his case could raise jurisdictional questions regarding the political question doctrine and standing. The magistrate judge also found that the plaintiff’s allegations regarding damage to his interests in minerals or fossil fuels from measures the United States would take if it rejoined the Paris Climate Accord did not establish existence of a substantial threat or irreparable harm. Nor did the plaintiff show how this alleged harm would outweigh the harm of an injunction that would disrupt the U.S.’s international policy on climate change. The district court overruled the plaintiff’s objections to the magistrate’s report and denied the request for preliminary relief. Pruitt v. Biden, No. 9:21-cv-00013 (E.D. Tex. Sept. 17, 2021)

Washington High Court Declined to Hear Youth Plaintiffs’ Climate Case

The Washington Supreme Court denied a petition by youth plaintiffs seeking review of the dismissal of their case alleging that the State of Washington and State agencies and officials infringed on the plaintiffs’ fundamental right to a stable climate system. The Chief Justice dissented, joined by one other justice. The Chief Justice wrote that he would have granted review so that the court could decide the question of whether climate change impacts are harms that are remediable under Washington’s laws and constitution. He noted that the Court of Appeals had concluded that the youth plaintiffs’ claims were not justiciable because there was no remedy the court could provide. The Chief Justice viewed this as “a debatable issue” because a judicial declaration of rights “would be a final and conclusive determination of the controversy irrespective of whether any other relief is requested or granted.” The Chief Justice stated that “[a] declaration of rights from this court is meaningful relief, even if it is not a magic wand that will eliminate climate change.” Aji P. v. State of Washington, No. 99564-8 (Wash. Oct. 6, 2021)

California Appellate Court Rejected Carbon Offset Mitigation Measures for Development Project

The California Court of Appeal ruled that greenhouse gas mitigation measures imposed by San Diego County for a 111-acre mixed-use development lacked objective performance criteria to ensure their effectiveness and that they improperly deferred mitigation. The court found that the mitigation measures—which required the project applicant to purchase and retire carbon credits to offset the project’s construction and operations emissions—shared some of the same deficiencies that the Court of Appeals identified in a case in which it invalidated mitigation measures provided for in the County’s Climate Action Plan. In particular, the court said the absence of protocols to ensure that carbon offsets were real, permanent, quantifiable, verifiable, and enforceable was a “fatal deficiency.” Because the measures did not provide reasonable assurance that emissions reductions would occur, the court found they were invalid under the California Environmental Quality Act. Elfin Forest Harmony Grove Town Council v. County of San Diego, Nos. D077611, D078101 (Cal. Ct. App. Oct. 14, 2021)

California Court of Appeal Declined to Consider Greenhouse Gas Emissions Issue in Review of Pest Management Program

In an appeal concerning the California Environmental Quality Act (CEQA) review for the Statewide Plant Pest Prevention and Management Program, the California Court of Appeal declined to take up claims that CEQA review documents failed to address increased impacts on greenhouse gas emissions. The appellate court noted that the petitioners raising these claims did not file an appeal or cross-appeal of the trial court’s ruling (which did not address impacts on greenhouse gas emissions), and that the petitioners had not shown that review of their claims was otherwise necessary. North Coast Rivers Alliance v. Department of Food & Agriculture, No. C086957 (Cal. Ct. App. Oct. 15, 2021)

California Appellate Court Said San Diego Failed to Determine Significance of Greenhouse Gas Emissions from Utility Line Project

The California Court of Appeal remanded a CEQA review for a project to convert overhead utility wires to an underground system in certain San Diego neighborhoods. The appellate court found that the City of San Diego had not completed the review process required to determine whether the project’s greenhouse gas emissions were consistent with the City’s Climate Action Plan. The court said a checklist used by the City to evaluate the project’s consistency was not sufficient for infrastructure projects such as the utility wire conversion project, and that the City’s determination that the project would not have a significant impact therefore was not supported by substantial evidence. The appellate court indicated, however, that this conclusion did not necessarily mean that the City would have to complete an environmental impact report since the additional analysis the court was requiring could show that the project was consistent with the Climate Action Plan. McCann v. City of San Diego, No. D077568 (Cal. Ct. App. Oct. 8, 2021)

California Court Found Fault with Greenhouse Gas Mitigation Measures and Consideration of Wildfire Risk for San Diego County Project

A California Superior Court ruled that greenhouse gas mitigation measures approved for a residential development in San Diego County were insufficient under the California Court of Appeals’ decision in Golden Door Properties, LLC v. County of San Diego, which requires that carbon offsets be real, permanent, quantifiable, verifiable, and enforceable. The court also found that the respondents failed to comply with CEQA because the consideration of wildfire risks improperly “compress[ed]” analysis of impacts and mitigation measures by characterizing mitigation measures as part of the project. Sierra Club v. County of San Diego, No. 37-2019-00038820-CU-TT-CTL (Cal. Super. Ct. Oct. 7, 2021)

New York Court Rejected Challenge to Renewable Energy Siting Standards

Sixteen days after denying a preliminary injunction, a New York trial court issued a second decision dismissing a challenge to New York State Office of Renewable Energy Siting (ORES) regulations setting forth procedural and substantive requirements for major renewable energy facilities. The court found that ORES fulfilled its obligations under the State Environmental Quality Review Act when it issued a negative declaration for the regulations, and rejected other claims raised by the petitioners. Town of Copake v. New York State Office of Renewable Energy Siting, No. 905502-21 (N.Y. Sup. Ct. Oct. 7, 2021)

NEW CASES, MOTION, AND OTHER DOCUMENTS

Supreme Court Review Sought of Ninth Circuit Decision Rejecting NEPA Challenge to Immigration Policies

Parties filed a petition for writ of certiorari after the Ninth Circuit Court of Appeals rejected their claims that the federal government failed to comply with the National Environmental Policy Act in connection with certain immigration programs and policies, including Deferred Action for Childhood Arrivals. The petitioners asserted, among other things, that “[i]mmigrants and their children almost universally are responsible for significantly more greenhouse gas emissions than they would have been if they never emigrated from their home countries,” and that the Biden administration’s “heightened focus on greatly augmenting the population through the expansion of the pathways of immigration to the U.S.” was “at crosspurposes with” the administration’s greenhouse gas emissions reduction goals. The certiorari petition raised the question of whether the Department of Homeland Security’s NEPA procedures constituted reviewable final agency action. The petition also presented the question of whether the Ninth Circuit improperly denied standing to the petitioners based on an erroneous standard. Whitewater Draw Natural Resource Conservation District v. Mayorkas, No. 21-574 (U.S. Oct. 18, 2021)

Second Circuit Stayed Remand Order in Connecticut’s Climate Case Against Exxon; New York City and Vermont Cases May Be Put on Pause

• On October 5, 2021, the Second Circuit Court of Appeals stayed the district court’s remand order pending appeal in the State of Connecticut’s unfair trade practices case against Exxon Mobil Corporation (Exxon). The Second Circuit found that Exxon had made a sufficient showing that it was entitled to a stay. Connecticut was ordered to file its brief within 30 days (by November 4), and Exxon’s reply brief is due 10 days after Connecticut files its brief. Connecticut v. Exxon Mobil Corp., No. 21-1446 (2d Cir. Oct. 5, 2021).
• On October 6, 2021, the federal district court for the Southern District of New York issued an order to show cause directing New York City to show cause why the City’s action against Exxon Mobil Corporation and other defendants under the City’s consumer protection law should not be stayed pending the Second Circuit’s decision in Exxon’s pending appeal of the remand order in Connecticut’s case. The City submitted a letter noting that its motion to remand was fully briefed and ready to be decided. The City said it believed the Second Circuit in Connecticut v. Exxon Mobil Corp. would benefit from the district court’s analysis of the removal issues in this case, but that the City understood that the district court might prefer to wait for further guidance in Connecticut before proceeding. City of New York v. Exxon Mobil Corp., No. 1:21-cv-04807 (S.D.N.Y. Oct. 6, 2021)
• On October 22, 2021, defendants Exxon Mobil Corporation and ExxonMobil Oil Corporation (Exxon) removed the State of Vermont’s consumer protection suit alleging climate change-related deception to federal court. Exxon said that “[c]limate change, fossil fuel’s alleged contributions to climate change, and statements promoting fossil fuel form the heart” of Vermont’s complaint and that “[s]uch lawsuits are properly removed to federal court because the claims asserted are governed by federal, not state, law.” The notice of removal cited the Second Circuit’s opinion in City of New York v. Chevron Corp. in support of Exxon’s contention that federal common law governs claims such as those brought by Vermont. The notice of removal also identified five other grounds for removal: Grable jurisdiction (because the complaint “necessarily raises several substantial and disputed federal questions concerning federal environmental standards, regulations, and international treaties striking a balance between the use of fossil fuels and the reduction of greenhouse gas emissions”); the federal officer removal statute, the Outer Continental Shelf Lands Act, federal enclave jurisdiction, and diversity jurisdiction. On October 29, Exxon and the other defendants filed a motion to stay the proceedings while the Second Circuit considers Connecticut v. Exxon Mobil Corp., which the defendants said would “control, or at least inform,” the result in this case. Vermont v. Exxon Mobil Corp., No. 2:21-cv-00260 (D. Vt. Oct. 22, 2021)

Juliana Plaintiffs Announced End of Settlement Talks

On November 1, 2021, the law firm representing the youth plaintiffs in Juliana v. United States, announced that settlement talks with the U.S. Department of Justice had ended the previous week without resolution. The announcement said the plaintiffs and their attorneys had concluded that there was no reason to continue the settlement discussions “until decision-makers for the federal defendants come to the settlement table.” The plaintiffs’ attorney said the plaintiffs would await a ruling from the district court on their motion to amend their complaint. Juliana v. United States, No. 6:15-cv-01517 (D. Or. Oct. 29, 2021)

Parties Asked Court to Pause Litigation to Allow Negotiation of Long-Term Solution for Management of Columbia River System

Environmental and conservation groups, the State of Oregon, and federal defendants asked the federal district court for the District of Oregon to stay litigation in a long-running case challenging management of the Columbia River System, a system of hydroelectric dams and reservoirs on the Columbia and Snake Rivers. In January 2021, plaintiffs filed an eighth supplemental complaint alleging that actions finalized in 2020 did not cure defects identified by the court in 2016. Among other shortcomings, the January 2021 complaint alleged a failure to fully assess the impacts of climate change on salmon, and failure to consider climate change threats to the Southern Resident killer whale. In their motion to stay litigation, the moving parties said they had reached an agreement for short-term operations of the Columbia River System that would provide “an interim compromise” while the parties worked towards “a long-term comprehensive solution that, if successful, may resolve all claims in this litigation.” National Wildlife Federation v. National Marine Fisheries Service, No. 3:01-cv-00640 (D. Or. Oct. 21, 2021)

Gulf Oil Moved to Dismiss Climate Adaptation Case in Connecticut

Gulf Oil Limited Partnership (Gulf) filed a motion to dismiss Conservation Law Foundation’s (CLF’s) citizen suit that alleges that Gulf failed to prepare a coastal petroleum terminal in New Haven, Connecticut, for the impacts of climate change. Gulf argued that CLF did not have standing because CLF’s claims were based on “speculative, future, and distant harms.” Gulf also argued that CLF’s factual allegations did not plausibly support many of its claims that Gulf violated the Clean Water Act or the Resource Conservation and Recovery Act (RCRA). In particular, Gulf contended that the plaintiffs’ allegations regarding inadequacies in the facility’s Stormwater Pollution Prevention Plan were not specific enough, that CLF did not identify information related to climate change risk that Gulf failed to disclose in violation of the Clean Water Act, and that CLF did not plead facts describing what design or engineering changes were required for the facility to comply with RCRA. Conservation Law Foundation v. Gulf Oil LP, No. 3:21-cv-00932 (D. Conn. Oct. 20, 2021)

Lawsuit Said Marine Highway Program Required Endangered Species Act Consultation

The Center for Biological Diversity (CBD) filed an Endangered Species Act citizen suit against the U.S. Maritime Administration (MARAD), the Secretary of Transportation, and the Acting Administrator of MARAD, alleging that MARAD’s adoption and continued implementation of America’s Marine Highway Program required programmatic consultation under Section 7 of the Endangered Species Act. The complaint also alleged that project-specific consultation was required for the James River Expansion Project, one of the actions funded through the Marine Highway Program, which was established by the Energy Independence and Security Act of 2007. Through the Program, MARAD provides grants to increase utilization of domestic freight and passenger transportation on marine highway routes between U.S. ports. CBD alleged that the Program funds activities that increase vessel traffic on waterways that provide essential habitat for protected species, and that the Program adversely affects protected species by contributing to climate change, including by subsidizing use of marine routes for fossil fuel transport. Center for Biological Diversity v. U.S. Maritime Administration, No. 4:21-cv-00132 (E.D. Va., filed Oct. 12, 2021)

Lawsuit Filed to Compel Finding on Listing Giraffes as Endangered or Threatened

Three organizations filed an action in the federal district court for the District of Columbia to compel the U.S. Fish and Wildlife Service to make a 12-month finding on their April 2017 petition to list giraffes under the Endangered Species Act. The complaint alleged that giraffes face a number of ongoing threats, including increased frequency and magnitude of droughts associated with climate change. Center for Biological Diversity v. Haaland, No. 1:21-cv-02660 (D.D.C., filed Oct. 12, 2021)

Federal Lawsuit Challenged Biden Administration’s Reconstitution of Clean Air Scientific Advisory Committee and Science Advisory Board

On October 7, 2021, a statistician and former member of EPA’s Science Advisory Board filed a lawsuit against EPA in the federal district court for the District of Columbia alleging that EPA violated the Administrative Procedure Act, the Federal Advisory Committee Act, and federal regulations when EPA reconstituted the Science Advisory Board and the Clean Air Scientific Advisory Committee in 2021. The complaint alleged that EPA Administrator Michael Regan “abruptly fired” all members of the Board and Committee in March 2021 and “rapidly proceeded to pack the new committees with academics receiving multi-million dollar research grants from EPA,” with none of the new members affiliated with regulated industries. The plaintiff sought injunctive relief requiring that the Board and Committee be reconstituted “with fairly balanced membership and adequate protections against inappropriate influence.” In a motion for preliminary injunction filed on October 21, the plaintiff contended that EPA “has moved to sideline anyone who might dissent from the President’s climate-change agenda,” and that immediate relief was necessary to pause the Committee’s work before it was asked to “rubberstamp” EPA staff’s policy assessment regarding stricter standards for particulate matter. On October 28, an amended complaint was filed, adding the former chair of the Committee as a plaintiff. Young v. EPA, No. (D.D.C., filed Oct. 7, 2021).

Stockholder Derivative Complaint Alleged Misleading Statements Regarding Plastic Alternative’s Biodegradability

A stockholder derivative action was filed in federal district court in Delaware against members of the board of directors and upper management for Danimer Scientific, Inc., a company that produces polyhydroxyalkanoates (PHAs), which the complaint described as “a purportedly biodegradable plastic alternative used in a range of plastic applications.” The complaint alleged that the defendants breached their fiduciary duties by failing to correct false and misleading statements and omissions of material fact that, among other things, overstated the products’ biodegradability. The complaint cited a report released by an investment firm in April 2021 that noted “inconsistencies” in Danimer’s claims regarding its business and operations. Among other things, the report stated that PHA bioplastics in anaerobic environments release the greenhouse gas methane. The complaint alleged that Danimer’s stock price fell after release of this report, as well as after the publication of a second report. The complaint asserted claims of violations of the Securities and Exchange Act, breach of fiduciary duties, unjust enrichment, and waste of corporate assets. The suit’s allegations are similar to those in a securities class action brought in the federal district court for the Eastern District of New York. Perri v. Croskrey, No. 1:21-cv-01423 (D. Del., filed Oct. 6, 2021)

Environmental Groups Challenged Air Permit for New Montana Power Plant and Constitutionality of MEPA Provision

Two environmental groups filed a lawsuit in Montana state court challenging the decision by the Montana Department of Environmental Quality (DEQ) to issue an air quality permit for construction and operation of the Laurel Generating Station, a 175-megawatt gas-fired power plant on the Yellowstone River in eastern Montana. The plaintiffs alleged that DEQ failed to fully evaluate the environmental consequences of the power plant, including “significant greenhouse gas pollution that contributes to climate change.” The complaint asserted that approval of the plant violated the Montana Environmental Policy Act (MEPA). In a second cause of action, the plaintiffs contended that a 2011 amendment to MEPA violated Montana’s constitutional environmental protections. The amendment provided that environmental review under MEPA could not include “a review of actual or potential impacts beyond Montana’s borders [and] may not include actual or potential impacts that are regional, national, or global in nature.” DEQ interpreted the provision to limit its ability to review climate change impacts. The plaintiffs asked the court to vacate the air permit or, in the alternative, to declare the MEPA provision unconstitutional. Montana Environmental Information Center v. Montana Department of Environmental Quality, No. DV21-01307 (Mont. Dist. Ct., filed Oct. 21, 2021)

Community Group Filed CEQA Challenge to UC Berkeley’s Long Range Development Plan

A community group filed a lawsuit in California Superior Court challenging the California Environmental Quality Act review for the University of California, Berkeley’s 2021 Long Range Development Plan (LRDP). The final environmental impact report (FEIR) for the LRDP also considered two construction projects, which the petitioner contended should have been subject to separate environmental review after review of the LRDP was completed. Among the petitioner’s claims was that the FEIR was “materially deficient” because it failed to examine the LRDP’s proposed population increase. Greenhouse gas emissions were one of the impacts that the petitioner alleged were not adequately discussed in the FEIR. Berkeley Citizens for a Better Plan v. Regents of the University of California, No. 2ICV000995 (Cal. Super. Ct., filed Oct. 27, 2021).

HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART

FEATURED CASES

Committee on the Rights of the Child (CRC) Determined the Extraterritorial Responsibilities of States Related to Carbon Pollution

On October 12, 2021, the CRC rejected—as inadmissible—claims by 16 children that Argentina, Brazil, France, Germany, and Turkey violated their rights under the United Nations Convention on the Rights of the Child by making insufficient cuts to greenhouse gases and failing to encourage the world’s biggest emitters to curb carbon pollution. The Committee accepted the claimants’ arguments that States are legally responsible for the harmful effects of emissions originating in their territory on children outside their borders. The Committee also found that the youth are victims of foreseeable threats to their rights to life, health, and culture. The CRC further found that countries have extraterritorial responsibilities related to carbon pollution. Specifically, when transboundary harm occurs, children are under the jurisdiction of the State on whose territory the emissions originated if there is a causal link between the acts or omissions of the State in question and the negative impact on the rights of children located outside its territory when the State of origin exercises effective control over the sources of the emissions in question. While the Committee said that the children had shown, for jurisdictional purposes, that the impairment of their rights as a result of the State party’s acts or omissions regarding the carbon emissions originating within its territory was reasonably foreseeable, it held that the complaint was inadmissible for a failure to exhaust local remedies. Sacchi et al. v. Argentina et al. (Committee on the Rights of the Child)

Court Ordered France to Immediately Comply with Emission Reduction Targets and Repair Damages for Prior Failure to Comply with Commitments

On October 14, 2021, the administrative court of Paris ordered France to take immediate and concrete actions to comply with its commitments on cutting carbon emissions and repair the damages caused by its inaction by December 31, 2022. After a thorough investigation, the court ruled on the assessment of the concrete terms of compensation for the damage caused by the French government, as determined in its February decision. The court determined that the GHG emissions ceiling set by the first carbon budget for the period 2015-2018 was exceeded by 62 million tonnes (Mt) of CO₂ equivalent (CO₂eq). However, because of the COVID-19 health crisis, as of July 28, 2021, GHG emissions should stand at 396 Mt CO₂eq for the year 2020, i.e., a difference of around 40 Mt CO₂eq compared to the indicative annual share set at 436 Mt CO₂eq. Ultimately, the court estimated the damage at 15 Mt CO₂eq. The court thus called on France to repair the damages up to the uncompensated GHG emissions under the first carbon budget, adding these to the reduction of emissions planned between 2021 and 2022. The compensation is effective as of December 31, 2022 at the latest. France has committed to reducing greenhouse gas emissions by 40% by 2030, compared to 1990 levels, and reaching carbon neutrality by 2050. Any future slippage of emissions beyond the legislative commitments must also be compensated. The government has full discretion in how to comply with the measures. The court rejected a request for a penalty for the delay in meeting the emissions goals. Notre Affaire à Tous and Others v. France (Administrative Court of Paris)

DECISIONS & SETTLEMENTS 

European Court of Justice Dismissed Appeal Questioning Regulation of Biofuels

This case relates to the European Union’s directives on renewable sources of fuel. To comply with the EU’s goal of 32% share of renewable energy by 2030 and a minimum of 14% of renewable energy in the transportation sector, the EU issued regulations that defined the calculation of high indirect land-use change-risk feedstock for biofuels, bioliquids, and biomass fuels. The Spanish company Lípidos Santiga questioned the criteria and brought an action arguing it excluded palm oil biofuels from the EU market. On October 21, 2021, the European Court of Justice dismissed an appeal to a decision from the General Court that found that the applicant was not directly concerned with the measure as the provisions are addressed to the Member States. Lípidos Santiga v. Commission (European Court of Justice)

NSW Land and Environment Court Dismissed Legal Challenge to the IPC Approval of the Narrabri Gas Project

On October 18, 2021, the NSW Land and Environment Court dismissed the legal challenge to the Narrabri Gas Project brought by the Mullaley Gas and Pipeline Accord (MGPA) community action group. The court found that MGPA had not established that (i) the Independent Planning Commission (IPC) failed to consider the expected GHG emissions, relevant to section 4.15(1)(b) of the Environmental Planning and Assessment Act 1979, and (ii) since the Scope 3 emissions were inside project proponent’s direct control, the IPC’s decision to exclude these conditions was unreasonable. The Court further found that the IPC did not fail to take the impacts of any potential gas transmission pipeline into consideration in its determination of the development application for the project, relevant to section 4.15(1)(b), because “the impacts of any potential gas transmission pipeline were sufficiently remote in the chain of likely consequences as not to be likely impacts of the project.” Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd (NSW Land and Environment Court)

New Zealand Court of Appeal Found that Tort Law Was Not Appropriate to Deal with Climate Change

In a lawsuit brought against major greenhouse gas emitters by Michael John Smith, a man of Ngāpuhi and Ngāti Kahu descent, the New Zealand Court of Appeal on October 21, 2021, dismissed the appeal submitted by Mr. Smith of the High Court’s decision to strike out two causes of action and granted the defendants’ cross-appeal and struck out a third cause of action that the High Court allowed to proceed. The Court of Appeal held that tort law was not the appropriate vehicle for dealing with climate change, noting that “every person in New Zealand—indeed, in the world—is (to varying degrees) both responsible for causing the relevant harm, and the victim of that harm.” As such, the court said its intervention in the issue and a determination that the conduct of the respondent companies was unlawful would introduce an “ad hoc” and “arbitrary regime,” which would lack democratic legitimacy. The Court of Appeal did, however, note that the courts have some role in climate action “in holding the government to account.” Smith v. Fronterra Co-Operative Group Limited (New Zealand Court of Appeal)

Hearing Held on UK Case Against a Protester

At an appeal hearing on October 18, 2021, the director of the legal charity Plan B, Tim Crosland, argued that in convicting him of criminal contempt the Supreme Court judges had disregarded his justifications for leaking the embargoed judgment in the case of Plan B v. Secretary of State for Transport. In doing so, he argued, the Supreme Court put in doubt their independence and impartiality. The Attorney General contended that the European Convention on Human Rights’ article 10 did not encompass the right “to be listened or heeded” and that Crosland could not jurisdictionally appeal from and to the Supreme Court. Attorney General v. Crosland (UK Supreme Court)

KEPCO Case Goes to High Court of Australia

After the NSW Court of Appeals’ dismissal of an appeal to the Independent Planning Commission’s findings that KEPCO, the largest electric utility in South Korea, had not proposed to minimize GHG emissions, KEPCO applied for special leave to appeal the decision. The case is now heading to the High Court of Australia. KEPCO Bylong Australia v. Independent Planning Commission and Bylong Valley Protection Alliance (NSW Court of Appeals)

NEW CASES, MOTIONS, AND OTHER FILINGS

Communication Filed at the International Criminal Court Against the Brazilian President for the Destruction of the Amazon Rainforest

On October 12, 2021, the NGO All Rise filed a communication to the Office of the Prosecutor of the International Criminal Court (ICC) requesting an investigation into Brazilian President Jair Messias Bolsonaro for his role in Crimes Against Humanity resulting from ongoing deforestation and related activities in the Amazon rainforest. The communication alleges that President Bolsonaro has promoted and facilitated a “widespread attack” on the Amazon Biome and “those who defend and depend upon it,” which represents “a clear and extant threat to humanity itself.” The complaint argues that global climate security is dependent on the Amazon and its vital role in regulating global temperatures and weather patterns and that the “severe damage to the functions of the Amazon Biome caused by deforestation, conversion of deforested land to cattle ranching, and vast intentional forest fires” has disrupted this critical ecosystem, turning it from a carbon sink to a carbon source. The Planet v. Bolsonaro (International Criminal Court)

New Complaint Submitted to UN Special Rapporteurs over Australia’s Inaction on Climate Change

On October 25, 2021, Environmental Justice Australia (EJA) submitted a complaint to the United Nations Special Rapporteur on Human Rights and the Environment, Special Rapporteur on the rights of Indigenous peoples, and Special Rapporteur on the rights of persons with disabilities over the Australian government’s inaction on climate change. The complaint relies on the particular climate vulnerability of young people, First Nations people, and people with disabilities, as climate change exacerbates existing inequalities and directly undermines their health and cultural rights. The complaint asks the Special Rapporteurs to seek an explanation from Australia on (i) how the country’s climate inaction is consistent with the human rights obligations, (ii) how the current conduct is compatible with human rights of young Australians and a 1.5°C pathway, and (iii) how the current Nationally Determined Contribution has involved young people in Australia and whether the State will establish a permanent forum to include young people from impacted communities. The complaint further asks the Special Rapporteurs to urge Australia to set a 2030 target consistent with its human rights obligations. Environmental Justice Australia (EJA) v. Australia (United Nations Special Rapporteurs)

New Case Filed in Australia over the Validity of a Water-Sharing Plan in New South Wales

In October 2021, the Nature Conservation Council (NCC) of New South Wales filed a case against the New South Wales government (NSW) to challenge the validity of the Border Rivers Water Sharing Plan. According to a news report, the plaintiffs have asked the court to invalidate the Border Rivers water sharing plan (WSP) in the Murray-Darling basin because decision-makers have failed to consider climate change properly. This case asserts that two State Ministers failed to account for future climate impacts and failed to factor in the impact of the most recent drought in Australia on one of the state’s critical sources of freshwater, the Murray-Darling Basin. The plaintiffs rely on the rights of children and future generations to enjoy and benefit from healthy, functioning river systems. Nature Conservation Council v. New South Wales (NSW) Nature Conservation Council of NSW v Minister for Water, Property and Housing (New South Wales Land and Environment Court)

New Case Filed in Australia Claiming a Duty of Care Towards the Torres Strait Islanders

On October 22, 2021, two First Nations’ leaders from the Torres Strait Islands filed a case challenging Australia’s failure to cut emissions and asserting that the government’s inaction will force their communities to migrate to new areas. The applicants allege that the Commonwealth owes a duty of care to Torres Strait Islanders to take reasonable steps to protect them, their culture and traditional way of life, and their environment from harms caused by climate change and that the government has breached this duty as the targets are not consistent with the best available science. Under the Torres Strait Treaty, Australia is required to take legislative and other action to protect and preserve the marine environment in and in the vicinity of the protected zone and/or take measures for the prevention and control of pollution or other damage to the marine environment from all sources and activities under its jurisdiction or control. The plaintiffs seek an order requiring the federal government to reduce greenhouse gas emissions and prevent the inundation of islands in the Torres Strait through implementing necessary measures to protect their land and marine environment, cultural and customary rights. Pabai Pabai and Guy Paul Kabai v. Commonwealth of Australia (Federal Court of Australia)

New German Case Brought Against the Energy Company Wintershall Dea AG

On October 04, 2021, the plaintiffs Barbara Metz, Sascha Müller-Kraenner, and Jürgen Resch, filed an action against Wintershall Dea AG, a German energy company, for refusing to tighten their carbon emissions target and give up the extraction of natural gas and crude oil by 2025. The plaintiffs argue that the company is violating the fundamental right to climate protection and impinging on the plaintiffs’ rights and freedoms by not adhering to a “fair” carbon budget. The plaintiffs ask the company to refrain from (i) extracting natural gas and/or crude oil that emits more than 0.62 Gt CO2 (natural gas) or more than 0.31 Gt CO2 (crude oil) when burned (calculated as of January 01, 2021), unless the company can demonstrate GHG neutrality for the CO2 emissions exceeding this amount, and (ii) opening new oil or gas fields after December 31, 2025, or participating in such openings through equity holdings. Barbara Metz et al., v. Wintershall Dea AG (Regional Court of Kassel)

German NGO Filed Cases Against BMW and Mercedes-Benz

On September 20, 2021, the German environmental organization Deutsche Umwelthilfe (DUH) filed an action against BMW and Mercedes-Benz for refusing to tighten their carbon emissions targets and give up fossil fuel-emitting cars by 2030. DUH argues that the automakers are violating the fundamental right to climate protection and impinging on the rights and freedoms of future generations by not adhering to a “fair” carbon budget. DUH asks the companies to stop producing internal combustion engine (ICE) cars if they cannot prove GHG neutrality for the use of cars by October 31, 2030. Deutsche Umwelthilfe (DUH) v. BMW (Regional Court of Munich); Deutsche Umwelthilfe (DUH) v. Mercedes-Benz AG (Regional Court of Stuttgart)

New Case Filed Against the German State of Hesse for the Lack of a Climate Law

On September 09, 2021, several youth plaintiffs brought a claim against the state of Hesse, arguing that the state’s failure to adopt a climate law violated plaintiffs’ constitutional rights. The plaintiffs rely on the Paris Agreement and the German Constitution to demand that the state legislature set a pathway to reducing greenhouse gas emissions to comply with the remaining CO2 budget to achieve carbon neutrality (calculated and distributed over the remaining period until the 1.5^°C target is achieved), especially considering the Federal Climate Protection Act, and the goal of achieving climate neutrality by 2045. The temperature targets are informed by the Paris Agreement. A climate bill is currently under debate. Alena Hochstadt, et al. v. State of Hesse (Federal Constitutional Court)

New Case Filed Against the German State of Mecklenburg-Vorpommern for the Lack of a Climate Law

On September 09, 2021, several youth plaintiffs brought a claim against the state of Mecklenburg-Vorpommern, arguing that the state’s failure to adopt a climate law violated plaintiffs’ constitutional rights. The plaintiffs rely on the Paris Agreement and the German Constitution to demand that the state legislature set a pathway to reducing greenhouse gas emissions to comply with the remaining CO2 budget to achieve carbon neutrality (calculated and distributed over the remaining period until the 1.5^°C target is achieved), especially considering the Federal Climate Protection Act and the goal of achieving climate neutrality by 2045. The temperature targets are informed by the Paris Agreement. In June 2021, a climate bill was introduced to the state parliament. However, the bill was rejected in April 2021. Otis Hoffman, et al. v. State of Mecklenburg-Vorpommern (Federal Constitutional Court)

New Case Filed Against the German State of Saarland for the Lack of a Climate Law

On September 09, 2021, several youth plaintiffs brought a claim against the state of Saarland, arguing that the state’s failure to adopt a climate law violated the plaintiffs’ constitutional rights. The plaintiffs rely on the Paris Agreement and the German Constitution to demand that the state legislature set a pathway to reducing greenhouse gas emissions to comply with the remaining CO2 budget to achieve carbon neutrality (calculated and distributed over the remaining period until the 1.5°C target is achieved), especially considering the Federal Climate Protection Act and the goal of achieving climate neutrality by 2045. The temperature targets are informed by the Paris Agreement. The state of Saarland does not have a climate law as an initiative from 2015 failed to move forward. Leonie Frank, et. al v. State of Saarland (Federal Constitutional Court)

New Case Filed Against the German State of Sachsen for the Lack of a Climate Law

On September 09, 2021, several youth plaintiffs brought a claim against the state of Sachsen, arguing that the state’s failure to adopt a climate law violated the plaintiffs’ constitutional rights. The plaintiffs rely on the Paris Agreement and the German Constitution to demand that the state legislature set a pathway to reducing greenhouse gas emissions to comply with the remaining CO2 budget to achieve carbon neutrality (calculated and distributed over the remaining period until the 1.5°C target is achieved), especially considering the Federal Climate Protection Act and the goal of achieving climate neutrality by 2045. The temperature targets are informed by the Paris Agreement. The state of Sachsen does not have a climate law as an initiative from 2020 failed to move forward. Tristan Runge, et al. v. State of Sachsen (Federal Constitutional Court)

New Case Filed Against the German State of Sachsen-Anhalt for the Lack of a Climate Law

On September 13, 2021, several youth plaintiffs brought a claim against the state of Sachsen-Anhalt, arguing that the state’s failure to adopt a climate law violated the plaintiffs’ constitutional rights. The plaintiffs rely on the Paris Agreement and the German Constitution to demand that the state legislature set a pathway to reducing greenhouse gas emissions to comply with the remaining CO2 budget to achieve carbon neutrality (calculated and distributed over the remaining period until the 1.5°C target is achieved), especially considering the Federal Climate Protection Act and the goal of achieving climate neutrality by 2045. The temperature targets are informed by the Paris Agreement. The state of Sachsen-Anhalt does not have a climate law as an initiative from 2013 failed to move forward. Luca Salis, et al. v. State of Sachsen-Anhalt (Federal Constitutional Court)

New Case Filed Against the German State of Brandenburg for the Lack of a Climate Law

On September 13, 2021, several youth plaintiffs brought a claim against the state of Brandenburg, arguing that the state’s failure to adopt a climate law violated the plaintiffs’ constitutional rights. The plaintiffs rely on the Paris Agreement and the German Constitution to demand that the state legislature set a pathway to reducing greenhouse gas emissions to comply with the remaining CO2 budget to achieve carbon neutrality (calculated and distributed over the remaining period until the 1.5°C target is achieved), especially considering the Federal Climate Protection Act and the goal of achieving climate neutrality by 2045. The temperature targets are informed by the Paris Agreement. The state of Brandenburg does not have a climate law. Emma Johanna Kiehm, et al. v. State of Brandenburg (Federal Constitutional Court)