November 2022 Updates to the Climate Case Charts

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

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #164:

FEATURED CASE

Eighth Circuit Said States Lacked Standing to Challenge Social Cost of Greenhouse Gas Estimates

The Eighth Circuit Court of Appeals affirmed a district court’s ruling that Missouri and other states did not have standing to challenge President Biden’s executive order directing federal agencies to use estimates of the social costs of greenhouse gas emissions (SC-GHG) to analyze the costs and benefits of agency actions. The Interagency Working Group on the Social Cost of Greenhouse Gases (IWG) published interim SC-GHG estimates in February 2021; the states argued that the executive order’s directive and the estimates violated separation of powers principles as well as statutes such as the Clean Air Act and Administrative Procedure Act (APA). The Eighth Circuit found that the states did not allege an injury in fact that was fairly traceable to the SC-GHG estimates. The court concluded that the states’ alleged economic injuries, including increased costs of regulated goods and services and loss of tax revenues from regulated economic activity, would not result from the interim SC-GHG estimates themselves but from hypothetical future federal action. The court also rejected the contention that the interim estimates caused a “sovereign” injury by intruding on states’ role as regulators. In addition, the Eighth Circuit concluded that the states failed to allege a procedural injury based on the IWG’s failure to follow the APA’s notice-and-comment procedures when it published the interim estimates. Missouri v. Biden, No. 21-3013 (8th Cir. Oct. 18, 2022)

DECISIONS AND SETTLEMENTS

Ninth Circuit Denied Rehearing of Decision Finding NEPA Violations in Coal Mine Expansion Case

The Ninth Circuit Court of Appeals denied petitions for rehearing and rehearing en banc of its April 2022 decision holding that federal defendants’ consideration of the greenhouse gas emissions impacts of a Montana coal mine expansion violated the National Environmental Policy Act (NEPA). The Ninth Circuit issued an amended opinion that clarified the district court’s tasks on remand (whether to order an environmental impact statement (EIS) or to remand to the agency for a determination of whether to prepare a new environmental assessment or an EIS, and whether to vacate the agency approval of the expansion). 350 Montana v. Haaland, No. 20-35411 (9th Cir. Oct. 14, 2022)

Hoboken and Delaware Climate Cases Returned to State Court

On October 12, 2022, the Third Circuit Court of Appeals denied fossil fuel industry defendants’ request that it stay issuance of the mandates after the court affirmed district court orders remanding climate change cases brought by the City of Hoboken and the State of Delaware to state court. The defendants had argued that issuance of the mandates should be stayed to allow the filing and disposition of a petition for a writ of certiorari in the U.S. Supreme Court. On October 19, the federal district court in New Jersey ordered that Hoboken’s case be remanded to state court, and the clerk of the federal district court in Delaware took action to return Delaware’s case to Delaware Superior Court. City of Hoboken v. Chevron Corp., No. 21-2728 (3d Cir. Oct. 12, 2022); Delaware v. BP America Inc., No. 22-1096 (3d Cir. Oct. 12, 2022)

Remand Order Temporarily Stayed in Annapolis and Anne Arundel County Climate Cases

The federal district court for the District of Maryland temporarily stayed its order remanding to state court the climate change cases brought by the City of Annapolis and Anne Arundel County. Although the court found that the fossil fuel industry defendants “have not evidenced a strong likelihood of success on the merits of their appeal,” the court found that a temporary stay was warranted due to uncertainty regarding the timing of the Supreme Court’s consideration of the petition for writ of certiorari seeking review of the Tenth Circuit’s affirmation of the remand order in Colorado local governments’ climate change case. The district court cited the potential for a state court to reach “dispositive and irreversible outcomes” before the Supreme Court rendered a decision in the Colorado local governments’ case, given that the Supreme Court had invited the Solicitor General to provide its views on the Tenth Circuit petition without setting a deadline for the Solicitor General to submit its briefing. The district court therefore stayed the remand orders until further notice. City of Annapolis v. BP p.l.c., No. 1:21-cv-00772 (D. Md. Oct. 27, 2022); Anne Arundel County v. BP p.l.c., No. 1:21-cv-01323 (D. Md. Oct. 27, 2022)

California Federal Court Concluded that Ninth Circuit Precedent Dictated Remand of Oakland and San Francisco Climate Cases

In the climate change public nuisance cases brought by Oakland and San Francisco, the federal district court for the Northern District of California rejected the fossil fuel company defendants’ remaining grounds for removal of the cases to federal court. The district court first concluded that it was bound by the Ninth Circuit Court of Appeals’ rulings in the County of San Mateo and Honolulu cases that the connection between the defendants’ alleged conduct on the Outer Continental Shelf and the plaintiffs’ alleged injuries was too attenuated to give rise to jurisdiction under the Outer Continental Shelf Lands Act, even if the district court itself would have found differently if “writing on a clean slate,” given the plaintiffs’ “sustained emphasis and attacks on production and sale of fossil fuels and given the central role of the outer Continental Shelf in America’s oil production.” In addition, the district court found that Ninth Circuit precedent in other climate change cases foreclosed federal enclave jurisdiction and jurisdiction under the federal-officer removal statute. The court also rejected the defendants’ argument that there was federal jurisdiction because the plaintiffs’ claims necessarily raised substantial First Amendment issues. The court vacated its earlier dismissal of four defendants on personal jurisdiction grounds, writing that “both sides deserve a clean slate in state court” but that the vacatur should not be considered as changing the court’s view of the personal jurisdiction issue. City of Oakland v. BP p.l.c., No. 3:17-cv-06012 (N.D. Cal. Oct. 24, 2022)

D.C. Circuit to Hold Challenges to Trump Administration’s Affordable Clean Energy Rule in Abeyance

The D.C. Circuit Court of Appeals granted the U.S. Environmental Protection Agency’s (EPA’s) motion to govern further proceedings on remand from the Supreme Court’s decision holding that the Clean Air Act did not give EPA authority to use “generation-shifting” measures to set carbon dioxide emission limits for existing power plants. The D.C. Circuit denied petitions for review challenging the repeal of the Obama administration’s Clean Power Plan, which utilized such measures. The D.C. Circuit held challenges to the Trump administration’s replacement rule—the Affordable Clean Energy Rule—in abeyance pending EPA’s completion of a new rulemaking. American Lung Association v. EPA, No. 19-1140 (D.C. Cir. Oct. 27, 2022)

Ninth Circuit Agreed that Tribe Was Necessary Party in Challenge to Wind Energy Lease

The Ninth Circuit Court of Appeals affirmed the dismissal of a lawsuit against the Bureau of Indian Affairs challenging the authorization of a wind energy lease between the Campo Band of Diegueño Mission Indians and a renewable energy company. The Ninth Circuit noted that it was uncontested that the Band could not be joined in the lawsuit because of its sovereign immunity and agreed with the district court’s conclusion that the Band was a necessary party because the action’s disposition could affect the Band’s sovereign and economic interests, which would not be adequately represented by other parties to the lawsuit. The complaint’s allegations included that the federal defendants failed to disclose the project’s entire life cycle greenhouse gas emissions. Backcountry Against Dumps v. Bureau of Indian Affairs, No. 21-55869 (9th Cir. Oct. 27, 2022)

Ninth Circuit Issued Amended Opinion Rejecting Claims that Cumulative Impact Analysis for Air Cargo Facility Was Deficient

The Ninth Circuit Court of Appeals amended its opinion denying petitions for review that challenged the Federal Aviation Administration’s environmental review for an air cargo facility at the San Bernardino International Airport in southern California. The Ninth Circuit replaced its discussion of the petitioners’ cumulative impacts arguments, but still rejected the contention that the analysis of cumulative air impacts was deficient. The Ninth Circuit denied pending petitions for rehearing en banc as moot. Center for Community Action & Environmental Justice v. Federal Aviation Administration, No. 20-70272 (9th Cir. Oct. 11, 2022)

Federal Court Dismissed Defamation Claim Arising from Fact-Checking of Climate Change Videos on Facebook

In a defamation lawsuit concerning labels placed on climate change-related videos on Facebook, the federal district court for the Northern District of California dismissed with prejudice the plaintiff journalist’s defamation claim against both Meta Platforms, Inc. and a non-profit fact-checking organization. The journalist alleged that one label falsely attributed to him a claim that forest fires were caused by poor management and not by climate change, and that the “Partly False” and “contains factual inaccuracies” labels on another video were themselves false. The second video featured a panel discussion questioning claims made by “environmental alarmists.”  The court found that none of the allegedly defamatory statements were actionable as false statements of objective fact. The court also granted the defendants’ motion to strike pursuant to California’s anti-Strategic Litigation Against Public Participation law, finding that the statements at issue qualified as protected activity under the law because they were made in a public forum and concerned a matter of public interest. Stossel v. Meta Platforms, Inc., No. 21-cv-07385 (N.D. Cal. Oct. 11, 2022)

Federal Court Said Montana Laws Concerning Electric Generating Facilities Were Unconstitutional

The federal district court for the District of Montana granted a motion for partial summary judgment by four out-of-state owners of a coal-fired power plant in Colstrip, Montana who intended to transition towards closure of the plant to comply with Oregon and Washington laws requiring electric utilities to eliminate use of coal-fired resources. The out-of-state owners—who owned a 70% interest in the plant and owned and operated the plant pursuant to a 1981 Ownership and Operation Agreement with two companies that each owned 30% interests in generating units—challenged the constitutionality of Montana laws enacted in 2021 that, among other things, require arbitration in a Montana venue under the Montana Uniform Arbitration Act for agreements concerning electrical generation facilities and require consent of all co-owners for the permanent closure of a generating unit at an electrical generation facility. The companies that owned 30% interests testified in support of the bills and were defendants in this action, along with the Montana Attorney General. The court determined that the arbitration law violated the U.S. and Montana Constitutions’ Contract Clauses and was preempted under the Federal Arbitration Act, and that the law requiring consent of all co-owners violated the dormant Commerce Clause and the U.S. Constitution’s Contract Clause. Portland General Electric Co. v. NorthWestern Corp., No. 1:21-cv-00047 (D. Mont. Oct. 18, 2022)

Fish and Wildlife Service Agreed to Schedule for Critical Habitat Designation for Florida Bonneted Bat

Conservation groups and federal defendants agreed to a settlement in the groups’ lawsuit seeking to compel the U.S. Fish and Wildlife Service (FWS) to designate critical habitat for the Florida bonneted bat, which the groups alleged faces extinction due to rising sea levels and other factors. The FWS agreed to a schedule for submitting a revised proposed determination for critical habitation designation (either November 15, 2022 or March 15, 2023, depending on whether the action is determined to be “significant” for purposes of interagency review). The settlement would require a final designation to follow the proposed designation within one year (or one year plus 120 days if determined to be a significant action). Center for Biological Diversity v. Haaland, No. 2:22-cv-14244 (S.D. Fla. Nov. 3, 2022)

Federal Court Rejected Climate Change Arguments in Challenge to Line 3 Oil Pipeline Replacement Project

The federal district court for the District of Columbia granted summary judgment to the defendants in a challenge to a U.S. Army Corps of Engineers permit for the replacement of sections of the Line 3 oil pipeline in Minnesota. The arguments rejected by the court included arguments that the defendants failed to conduct an adequate review of the project’s contributions to climate change. The court agreed with the Corps that the National Environmental Policy Act did not require consideration of greenhouse gas emissions from the pipeline’s operation and transportation of crude oil because such effects would be “too far attenuated” from the permitted activities. The court therefore found that it was not arbitrary or capricious for the Corps to review only effects associated with the construction-related activities authorized by its permit. The court also found that the Corps’ discussion of the effects of construction activities on climate change was adequate. Regarding the “public interest” review under the Clean Water Act, the court similarly found that the Corps was not required to undertake an “expansive analysis” of the climate change implications of the entire project. Red Lake Band of Chippewa Indians v. U.S. Army Corps of Engineers, No. 20-cv-3817 (D.D.C. Oct. 7, 2022)

Louisiana Federal Court Dismissed NEPA Claim in Trade Associations’ Challenge to Pause on Oil and Gas Leasing

The federal district court for the Western District of Louisiana dismissed two claims in oil and gas industry trade associations’ lawsuit challenging the Biden administration’s pause on certain oil and gas leasing activity. The court concluded that the D.C. Circuit had exclusive jurisdiction over a claim that the pause would prevent the defendants from adopting a timely five-year leasing program under the Outer Continental Shelf Lands Act. The court therefore dismissed the claim without prejudice. The court dismissed with prejudice a claim that the defendants violated the National Environmental Policy Act (NEPA) by failing to prepare an environment assessment or environmental impact statement before implementing the pause. The court found that the trade associations lacked statutory standing under NEPA because their only alleged environmental injuries were the public’s generalized interest in informed decision-making and a possibility that the pause would result in a net increase in greenhouse gas emissions because oil and gas from the U.S. would be substituted with oil and gas from countries with less robust regulation. The court said these injuries were “either economic in nature or flow from their general interest in promoting environmentally responsible economic development, interests that do not fall within NEPA’s zone of interests.” The court rejected the defendants’ argument that claims under the Mineral Leasing Act and Administrative Procedure Act were untimely. American Petroleum Institute v. U.S. Department of Interior, No. 2:21-cv-02506 (W.D. La. Nov. 3, 2022)

Court of International Trade Largely Upheld Determination that German Programs Constituted Countervailable Subsidies to Steel Company

In a German steel company’s challenge to the U.S. Department of Commerce’s determinations that German government regulatory programs provided countervailable subsidies to the company, the Court of International Trade upheld the determinations with respect to exemptions from certain electricity and energy taxes, reductions in surcharges intended to distribute the costs of promoting renewable energy sources, allocations of additional free allowances for carbon emissions under the European Union’s Emissions Trading System, and compensation for higher energy costs under Germany’s CO₂ Compensation Program. For each of these programs, the court found that the program provided a financial contribution, that the program conferred a benefit on the German company, and that the subsidies were limited to a sufficiently small number of enterprises to be “specific” subsidies. With respect to the exemptions from electricity and energy taxes, the court rejected the company’s contention that Commerce should have considered the relative burdens on German manufacturers due to the U.S.’s withdrawal from the Paris Climate Accords, finding that neither Commerce nor the court was “at liberty to evaluate the environmental rationale” of the German measures or to compare them with U.S. measures. With respect to a program that provided exemptions from concession fees paid for laying and operation of gas and power lines on public transport routes, the court found that additional explanation or reconsideration was required with respect to the determination that program was a specific subsidy. BGH Edelstahl Siegen GMBH v. United States, No. 21-00080 (CIT Oct. 12, 2022)

Virginia Supreme Court Upheld Decision Allowing Utility to Recover Costs of Purchasing RGGI Carbon Dioxide Allowances

The Virginia Supreme Court affirmed the State Corporation Commission’s (SCC’s) approval of Virginia Electric and Power Company’s (VEPCO’s) request for a rate-adjustment clause allowing it to recover the projected costs of purchasing allowances through the Regional Greenhouse Gas Initiative (RGGI), a multi-state cap-and-trade program for carbon dioxide emissions from electric utilities. The court rejected the environmental organization Appalachian Voices’ argument that the SCC failed to make the requisite findings that the costs were “necessary” to comply with RGGI regulations. Appalachian Voices contended that “only the lowest possible allowance costs” were necessary and that the SCC should have required VEPCO to execute a plan to reduce carbon dioxide emissions from existing power plants. The court found that “[w]hile the argument has a persuasive tenor, there is no statutory or regulatory text supporting it.” The court said Appalachian Voices would have the opportunity to advocate for its “ideal, least-cost program” for reducing carbon dioxide emissions from VEPCO’s power plants in separate proceedings implementing the Virginia Clean Economy Act, which requires electric utilities to phase out carbon-emitting power plants and to procure renewable energy. Appalachian Voices v. State Corporation Commission, No. 220130 (Va. Oct. 27, 2022)

Maine Court Declined to Enjoin Ballot Initiative Blocking New England Clean Energy Connection Transmission Line

After the Maine Law Court determined that a successful ballot initiative that blocked completion and operation of the New England Clean Energy Connection transmission line corridor might have violated the developers’ due process rights, the Maine Business and Consumer Court declined to reconsider its denial of a motion for a preliminary injunction barring the effectiveness of the ballot initiative. The court rejected the plaintiffs’ argument that the Law Court had determined that they had vested rights to complete construction. Instead, the court said, the Law Court had returned the case to the Business and Consumer Court for factfinding. The Business and Consumer Court said the plaintiffs had not argued that a “tipping point” after which completion of the project would no longer be feasible would occur while the case was being litigated in trial court, where a trial was scheduled to begin in April 2023. NECEC Transmission, LLC v. Bureau of Parks & Lands, No. BCD-CIV-2021-00058 (Me. BCD Oct. 21, 2022)

Insurance Companies Voluntarily Dismissed Their Lawsuit Concerning Coverage in Climate Adaptation Case

Two insurance companies filed a notice voluntarily dismissing without prejudice all claims in their lawsuit that sought declarations that they were not obligated to defend or indemnify Gul Oil Limited Partnership in a lawsuit brought by Conservation Law Foundation alleging that Gulf Oil had not adequately prepared its bulk petroleum terminal in New Haven, Connecticut for climate change impacts. Everest Premier Insurance Co. v. Gulf Oil LP, No. 2284-CV-01291 (Mass. Super. Ct. Oct. 18, 2022)

NEW CASES, MOTIONS, AND OTHER FILINGS

Fossil Fuel Companies Asked Supreme Court to Review Remand Decision in Baltimore Case

On October 14, 2022, fossil fuel companies filed a petition for writ of certiorari seeking review of the Fourth Circuit’s decision affirming the remand order in the climate change case brought by the Mayor & City Council of Baltimore. The petition presents the same two questions as the pending petition for writ of certiorari seeking review of the Tenth Circuit’s affirmance of the remand order in Colorado local governments’ climate case: (1) Whether federal common law necessarily and exclusively governs claims seeking redress for injuries allegedly caused by the effect of interstate greenhouse-gas emissions on the global climate; and (2) Whether a federal district court has jurisdiction under 28 U.S.C. 1331 over claims necessarily and exclusively governed by federal common law but labeled as arising under state law. Baltimore requested a 30-day extension for the filing of its response to the petition. BP p.l.c. v. Mayor & City Council of Baltimore, No. 22-361 (U.S. Oct. 14, 2022)

New Jersey Filed Lawsuit to Hold Fossil Fuel Defendants Liable for Climate Change Impacts

The New Jersey Attorney General, the New Jersey Department of Environmental Protection, and the Acting Director of the New Jersey Division of Consumer Affairs filed a lawsuit in New Jersey Superior Court alleging that fossil fuel industry defendants engaged in a “successful climate deception” campaign about the consequences of greenhouse gas emissions from fossil fuels, with the “the purpose and effect of inflating and sustaining the market for fossil fuels, which—in turn—drove up greenhouse gas emissions, accelerated global warming, and brought about devast[at]ing climate change impacts to the State of New Jersey and its Overburdened Communities … in particular.” The plaintiffs alleged that the defendants’ actions had resulted in the State paying billions of dollars to respond to and protect people, businesses, infrastructure, and natural resources from climate change hazards, including sea-level rise, disruption to the hydrologic cycle, extreme precipitation events and associated flooding, heat waves, droughts, ocean acidification, degradation of air and water quality, and habitat and species loss. The complaint alleged that climate change impacts would “disproportionately afflict” Overburdened Communities by exacerbating environmental and public health stressors associated with socioeconomic and racial disparities. The complaint asserted failure to warn, negligence, impairment of the public trust, trespass, public nuisance, and private nuisance claims as well as violations of the New Jersey Consumer Fraud Act for unconscionable commercial practices and deception and misrepresentations and omissions of material facts. The plaintiffs requested compensatory, natural resource, and punitive damages; costs and fees; abatement of the nuisance; abatement of the trespass; civil penalties; and disgorgement of profits. Platkin v. Exxon Mobil Corp., No. MER-L-001797-22 (N.J. Super. Ct., filed Oct. 18, 2022)

Groups Challenged BLM’s Affirmance of Trump Administration Approvals of Oil and Gas Leases in Greater Chaco Area

Diné Citizens Against Ruining Our Environment and three other organizations filed a petition for review in the federal district court for the District of New Mexico challenging the U.S. Bureau of Land Management’s (BLM’s) decisions to re-affirm “the Trump Administration’s flawed authorization and issuance of oil and gas leases on 42 parcels, covering nearly 45,000 acres of land” and BLM’s approval of approximately 120 Applications for Permit to Drill (APDs) on eight of the lease parcels. To resolve a lawsuit in which the plaintiffs challenged the Trump administration’s initial approvals of the oil and gas leases, BLM agreed to conduct new NEPA analyses and re-visit the earlier decisions. In their lawsuit challenging the re-affirmance of the Trump-era decisions, the plaintiffs asserted claims under NEPA, the Federal Land Policy and Management Act (FLPMA), and the Administrative Procedure Act, including by failing to take a hard look at cumulative greenhouse gas emissions and cumulative climate impacts in reapproving leases and approving APDs. The petitioners also alleged that the defendants failed to assess cumulative impacts of BLM’s leasing activities across the Greater Chaco region and of the oil and gas leasing program across the western U.S. Under FLPMA, the plaintiffs alleged that BLM acknowledged multiple negative environmental impacts from the challenged actions, including millions of metric tons of greenhouse gas emissions annually, but failed “to take action necessary to prevent unnecessary or undue degradation in the context of climate impacts” and the significance of the Greater Chaco area. Diné Citizens Against Ruining the Environment v. U.S. Bureau of Land Management, No. 1:22-cv-00804 (D.N.M., filed Oct. 26, 2022)

Lawsuit Sought Final Rules on Listing Populations of Lesser Prairie Chickens

Center for Biological Diversity filed a lawsuit against the U.S. Fish and Wildlife Service (FWS) in federal district court in New Mexico to compel the FWS to issue final rules for two distinct population segments (DPSs) of the lesser prairie chicken under the Endangered Species Act. The complaint alleged that the lesser prairie chicken had a “rapidly diminishing number of places to live” because it avoided “increasingly common manmade structures” utilized by birds of prey as perches, and that other threats included degradation and fragmentation of the southern Great Plains, including by “drought and high temperatures linked to global warming.” Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 1:22CV00796 (D.N.M., filed Oct. 25, 2022)

Lawsuit Challenged Local Ordinance that Blocked Carbon Storage Project in Louisiana

A company that had entered into a Carbon Dioxide Storage Agreement with the State of Louisiana and other State parties filed a lawsuit challenging an ordinance adopted by Livingston Parish that allegedly attempted “to improperly place a 12-month moratorium on the construction and drilling of Class V well, as well as seismic surveying.” The complaint alleged that a clean energy complex announced in connection with the Carbon Dioxide Storage Agreement would support Louisiana’s climate, energy, and economic goals and would produce clean hydrogen and clean ammonia. The company alleged that its plans included permanent sequestration of approximately 5 million metric tons of carbon dioxide each year. The complaint asserted that Louisiana state law preempted the Parish’s ordinance, and that the ordinance also was preempted by the federal Safe Drinking Water Act (SDWA) and Louisiana law and regulations implementing the underground injection control program under the SDWA. Air Products Blue Energy, LLC v. Livingston Parish Government, No. 3:22-cv-00809 (M.D. La., filed Oct. 18, 2022)

FOIA Lawsuit Sought Tennessee Valley Authority Records Regarding Energy Transition

Center for Biological Diversity (CBD) filed a Freedom of Information Act (FOIA) lawsuit against the Tennessee Valley Authority (TVA) seeking to compel disclosure of records concerning “the potential for TVA to transition to cleaner energy sources.” First, CBD sought records of communication between TVA Board of Directors members and employees of certain energy companies, trade groups, and other organizations related to energy-related matters including climate change. The suit also sought reports, data, or summaries created or reviewed by TVA executives on energy-related topics, including replacing coal generation with new gas generation or solar generation and the relationship between TVA’s fossil fuel assets and President Biden’s decarbonization goals. Center for Biological Diversity v. Tennessee Valley Authority, No. 3:22-cv-00359 (E.D. Tenn., filed Oct. 11, 2022)

Lawsuit Challenged Determination that Barrens Darter Did Not Warrant Listing Under Endangered Species Act

In a lawsuit filed in federal district court in the District of Columbia, Center for Biological Diversity challenged the U.S. Fish and Wildlife Service’s determination that the Barrens darter—alleged to be one of the rarest fishes in North America—did not warrant listing as endangered or threatened under the Endangered Species Act. The complaint alleged that the threats faced by the five remaining populations of the Barrens darter included climate change. CBD said climate change’s contribution to more extreme drought and flooding events exacerbated the effects of other threats such as poor grazing and livestock management practices; nurseries and other agriculture; and urbanization. Center for Biological Diversity v. Haaland, No. 1:22-cv-02922 (D.D.C., filed Sept. 27, 2022)

Exxon Reported Termination of Sale of Everett Terminal, Court Stayed Discovery in Adaptation Suit

In Conservation Law Foundation’s (CLF’s) lawsuit alleging a failure to prepare a petroleum bulk storage terminal in Everett, Massachusetts, for the impacts of climate change, the defendant, ExxonMobil Corporation (Exxon), on September 14, 2022 notified the federal district court for the District of Massachusetts that a Sale and Purchase Agreement for the Everett Terminal had been terminated. Exxon said that it continued to believe that claims in the suit were moot because Exxon had months earlier stopped using the property for storage and sale of petroleum products and all remaining liquids had been removed. After a court conference on October 26, the court ordered that all discovery be stayed until further order of the court. The conference was held to discuss issues including whether the case should be referred to mediation as requested by CLF and whether the court should order briefing on whether the case was moot, as requested by Exxon. Conservation Law Foundation, Inc. v. ExxonMobil Corp., No. 1:16-cv-11950 (D. Mass.)

CEQA Lawsuit Challenged Oakland Approvals of Indoor Cannabis Cultivation Projects

A lawsuit filed in California Superior Court alleged that the City of Oakland and related respondents unlawfully approved major indoor cannabis cultivation projects in East Oakland without analyzing their environmental impacts under the California Environmental Quality Act (CEQA). Among the environmental concerns raised in the petition was the amount of energy required for indoor cannabis cultivation and the associated greenhouse gas emissions. The petition alleged that indoor cannabis production consumes three percent of total electricity in the state and that one kilogram of final cannabis product is associated with 4,600 kilograms of carbon dioxide emissions. The petition also alleged that the City “[i]nexplicably” did not apply its Equitable Climate Action plan to indoor cannabis cultivation facilities. Environmental Democracy Project v. City of Oakland, No. 22CV020520 (Cal. Super. Ct., filed Oct. 21, 2022)

Lower Manhattan Plaintiffs Said Development Project Violated New Environmental Rights Amendment

A New York City Councilmember and residents of Manhattan’s Lower East Side filed a lawsuit in New York Supreme Court alleging that the development of a project that included three skyscrapers violated the New York Constitution’s new Environmental Rights Amendment and the State Environmental Quality Review Act. The Amendment provides that “each person shall have a right to clean air and water, and a healthful environment.” The plaintiffs alleged that the Amendment required the City to take a hard look at the Amendment’s impact on the project’s implementation and to determine whether it would implicate the plaintiffs’ constitutional rights. They contended that a supplemental environmental impact statement was required to look at this issue. The suit included climate change-related allegations, including that the final environmental impact statement failed to evaluate impacts on greenhouse gas emissions and climate change “as mandated by the Constitutional Amendment.” Marte v. City of New York, No. __ (N.Y. Sup. Ct., filed Oct. 21, 2022)

June 2023 Trial Date Set in Montana Youth Plaintiffs’ Climate Case

On October 6, 2022, Our Children’s Trust announced that a trial had been scheduled for June 12-23, 2023 in their youth plaintiffs’ case against the State of Montana and other defendants alleging violations of the Montana Constitution. Held v. State, No. CDV-2020-307 (Mont. Dist. Ct. Oct. 6, 2022)

New Lawsuit Filed Challenging Fanita Ranch Development in City of Santee

A lawsuit filed in California Superior Court challenged the City of Santee’s approval of the Fanita Ranch project, a commercial and residential complex on a 2,638-acre site in a State-designated Very High Fire Hazard Severity Zone. In an earlier lawsuit, the court found that the City violated the California Environmental Quality Act (CEQA) by failing to adequately evaluate the project’s wildfire and public safety impacts. This new lawsuit alleged that the City again failed to comply with CEQA, including by failing to adequately disclose, analyze, and/or mitigate the project’s greenhouse gas impacts and by failing to adequately consider impacts relating to wildfire and wildfire safety. The lawsuit also alleged that the City and developer unlawfully evaded a requirement approved by voters in 2020 that certain development projects require voter approval. Preserve Wild Santee v. City of Santee, No. __ (Cal. Super. Ct., filed Oct. 14, 2022)

 

HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART

FEATURED CASE

Argentina’s Federal Court of Appeal Implemented New Injunction to Stop Exploration Activities Until Certain Requirements Are Met

On December 30, 2021, the Argentinian Ministry of Environment and Sustainable Development published Resolution 436/2021 approving the implementation of an offshore seismic acquisition project submitted by the Norwegian company Equinor. This approval of offshore fossil fuel exploration resulted in several lawsuits seeking an injunction to halt the project and an order declaring the approval’s regulations null and void. On January 14, 2022, all three lawsuits against the offshore exploration activities were combined. On February 11, 2022, the Federal Court of Mar del Plata ordered a halt to the fossil fuel exploration activities. On February 15, 2022, the government filed an appeal to the injunction order. On June 3, 2022, the Federal Court of Appeal (Federal Chamber of Mar del Plata) annulled the injunction relief. However, at the same time, the Court ordered the Ministry of Environment and Sustainable Development, as a new injunction, to issue a new complementary environmental impact assessment that considers possible cumulative impacts of the activities. In this new assessment, the spatial and temporal scope of the project’s implementation must be analyzed and weighed. It is also mandatory to include the participation of the National Parks Administration and to consider the results of the public consultative hearings, organized at both local (public hearing initiated on 30 May 2022) and national levels (public consultation ended on 19 May 2022). Finally, the Court asked for the inclusion of the Ministry of Environment and Sustainable Development in the control and monitoring of compliance with the Environmental Impact Statement and its corresponding Environmental Management Plan (a task before assumed only by the Secretary of Energy). Exploration activities should stop (again) until all these requirements are met. Climate arguments were not developed by the Court of Appeal. Greenpeace Argentina et. al., v. Argentina et. al. (Federal Court of Appeal, Argentina)

DECISIONS & SETTLEMENTS 

Supreme Court of Canada Dismissed ENvironnement JEUnesse’s Leave to Appeal Motion

On November 26, 2018, ENvironnement JEUnesse, an environmental nonprofit, applied in the Superior Court of Québec to bring a climate change-related class action against the Canadian government on behalf of Québec citizens aged 35 and under. The organization alleged that the government violated plaintiffs’ rights by setting an insufficient greenhouse gas emission reduction target to avoid dangerous climate change impacts and by lacking an adequate plan to reach it. On July 11, 2019, the court dismissed the motion for authorization to institute a class action. The judge concluded that the impact of climate change on human rights is a justiciable issue and that the Canadian Charter of Rights and Québec Charter of Rights and Freedoms can apply to government actions in this area. However, the judge declined to authorize the proposed class, determining that the 35-year age cut-off was arbitrary and not objective. ENvironment JEUnesse appealed the decision. On December 13, 2021, the Québec Court of Appeal dismissed the appeal on justiciability grounds and denied the certification of the proposed climate change class action suit. The Court found that “all the alleged facts” accused the Canadian government of a “fault of omission” resulting from its inaction in the face of global warming. The Court said conclusions sought by the appellants were tantamount to asking the courts to tell the legislature what to do, which is not the courts’ role. The Court held that deference to the legislative power is “necessary” as it is better placed to weigh the countless challenges of global warming. The Court did not weigh in on the allegation that government actions were contributing to climate change and therefore violated the Charter rights. The Court also objected to the lack of specificity of the remedy requested and agreed with the trial judge that the proposed class was arbitrary since the theory of the case on age discrimination was not acceptable. ENvironnement JEUnesse filed an application for leave to appeal to the Supreme Court of Canada on February 11, 2022. On July 28, 2022, the Supreme Court of Canada dismissed the application. ENvironnement JEUnesse v. Procureur General du Canada (Supreme Court, Canada)

New York City Intervened in Support of French NGO for Its Significant Interest in the Alleged Damages and Risks from Total

On January 28, 2020, four French NGOs (Notre Affaire à Tous, Sherpa, Zéa, and Éco-Maires) filed a complaint asking a Nanterre court to order a French oil company, Total, to recognize the risks generated by its business activities and make its conduct consistent with the goal of limiting global warming to 1.5°C. According to the plaintiffs, their complaint relies on the Law on the Duty of Vigilance, as well as the duty of environmental vigilance arising out of the French Environmental Charter. The plaintiffs allege that Total did not provide enough detailed information in its vigilance plan for reducing its emissions and the company is still not in line with international climate agreements. Total did not respond to the merits and requested that the case be brought before the commercial court. On February 11, 2021, the pre-trial judge rejected Total’s objection of incompetence and confirmed the jurisdiction of the judicial court. The judge considered that the NGOs have, as “non-traders,” a right of option, which they exercise at their convenience, between the judicial court, which they have validly seized, and the commercial court. On November 18, 2021, the Versailles Court of Appeal confirmed the jurisdiction of the Nanterre judicial court to settle the dispute. The decision is based on the exclusive jurisdiction of certain courts of law in matters of cessation and compensation for ecological damage. On July 21, 2022, the City of New York intervened in support of the plaintiffs. The City of New York has based its intervention on the significant interest it has in engaging—locally and globally—in efforts to mitigate climate change, also because of the severe damages and risks this phenomenon causes to the City. Notre Affaire à Tous and Others v. Total (Versailles Court of Appeal, France)

Second Hearing for A Sud et al. Held; Next Hearing Scheduled for September 13, 2023

On June 5, 2021, environmental justice NGO A Sud and more than 200 plaintiffs filed suit alleging that the Italian government, by failing to take actions necessary to meet Paris Agreement temperature targets, is violating fundamental rights, including the right to a stable and safe climate. The action, part of a campaign called Giudizio Universale (The Last Judgment), seeks a declaration that the government’s inaction is contributing to the climate emergency and a court order to reduce emissions 92% by 2030 compared to 1990 levels. According to an executive summary of the claim released by the plaintiffs, the government’s climate obligations stem from the Paris Agreement, EU regulations, and Intergovernmental Panel on Climate Change reports. On December 14, 2021, the first hearing was held before the Civil Court of Rome in the form of written notes. In its reply, the Presidency of the Council of Ministers, represented by the “Avvocatura Generale dello Stato” (state lawyers), requested the Court to declare the complaint inadmissible and, in any case, to dismiss the applicants’ claims on the merits. On the matter of fact, the reply described in depth the State’s policies and endeavors on climate change. On the matter of law, the reply dealt with: (i) the absence of jurisdiction of the civil judge over activities pertaining to the legislative and executive powers of the State; (ii) the lack of standing rights of the applicants; (iii) the impossibility of placing an individual responsibility on the Italian State for climate change and its impact. The applicants sent their rebuttal notes on January 14, 2022. The second hearing (the first oral hearing) was held on June 21, 2022. The parties presented their legal arguments before the judge. The judge scheduled the next hearing for September 13, 2023. A Sud et al. v. Italy (Civil Court of Rome, Italy)

NEW CASES, MOTIONS, AND OTHER FILINGS

Canadian NGOs Demanded Oil and Gas “Sleeper” Permits for Coast of British Columbia Be Found Expired and Invalid

On July 26, 2022, the World Wildlife Fund Canada and the David Suzuki Foundation, supported by EcoJustice Canada, filed in the Federal Court of Appeal an application for judicial review of the federal government’s decision to extend 20 oil and gas “sleeper” permits originally granted off the coast of British Columbia in the late 1960s and 1970s. The applicants allege that these permits, held by Chevron Canada Limited and Exxon Mobil for offshore oil and gas exploration in British Columbia, were to expire decades ago, but Natural Resources Canada has indefinitely extended them in violation of the Canada Petroleum Resources Act. The applicants claim that because the federal government has unlawfully kept these permits on the books for more than 40 years, the permits should be found to be expired and invalid. The areas covered by the permits include Scott Islands Protected Marine Area and the Hecate Strait/Queen Charlotte Sound Glass Sponge Reefs Marine Protected Area in British Columbia. The applicants note that these sleeper permits pose an underlying threat to at-risk species and critical habitat in these areas, which are areas rich in biodiversity. Further judicial proceedings are currently pending. World Wildlife Fund Canada et al. v. Minister of Natural Resources et al. (Federal Court of Appeal, Canada)

Australian NGO and Others Filed Complaint Challenging Glencore’s Misleading Claims About Climate Impact and Behavior Towards Traditional Owners

On September 2022, a legal complaint was lodged on behalf of the Plains Clan of the Wonnarua People (PCWP) and Lock the Gate Alliance to the Australian Competition and Consumer Commission (ACCC) and Australian Securities and Investments Commission (ASIC) regarding Glencore’s allegedly misleading claims about climate impact and its behavior towards traditional owners. Glencore operates 17 coal mines in Australia, making it Australia’s largest coal producer and biggest contributor to emissions from coal mining. Glencore publicly claims to have decarbonization plans in place. However, a legal investigation by the Environmental Defenders Office (EDO) found no evidence to support these claims. Glencore is in fact expanding its coal production, and its net zero claims may amount to harmful greenwashing under the Corporations Act 2001 or Australian consumer law. Lawyers from the London-based organization ClientEarth have backed the action, writing to the UK’s Financial Conduct Authority over the role of Glencore plc and urging them to coordinate with ASIC in a robust response. EDO lawyers have also lodged a legal complaint with Ad Standards on behalf of Comms Declare: Climate Crisis. Further judicial proceedings are currently pending. PCWP and others v. Glencore (Competition and Consumer Commission, Australia)

14 Indonesian Youths and Affected Groups Filed Complaint Against Government for Not Taking Necessary Mitigation and Adaptation Measures to Prevent Temperature Rises Above 1.5 Degrees

On July 14, 2022, 14 applicants filed a complaint against the Indonesian government in the Indonesian National Human Rights Commission. The complainants are youth and affected groups from various generations and regions in Indonesia affected by climate change. The complainants claimed that climate change has caused them to face life-threatening hazards; reduced physical and mental well-being; increased health risks and food and water insecurity; and disrupted their education and livelihoods. The complainants stated that they had experienced various impacts caused by climate change including 1) heat waves that caused death and heat-related illness and decreased productivity of outdoor works; 2) sea-level rise which caused coral reef bleaching and declining fish stocks, resulting in food and job insecurity in tourism and fisheries; 3) an increase in extreme heat and rainfall, bringing disease and water and food insecurity; 4) the occurrence of tidal flooding, high waves, and strong winds due to sea level rise, endangering lives and causing loss of shelter and vulnerability to food and water; and 5) aggravated mental health. The complainants claimed that the Indonesian government has violated their human rights guaranteed by the Indonesian constitution, by not taking the necessary mitigation and adaptation measures to prevent temperature rises above 1.5 degrees. The claim was based on allegations that: 1) Indonesia is still heavily dependent on deforestation and fossil fuels, especially coal, for economic growth; 2) Indonesia has inadequate emission reduction targets; 3) Indonesia still allocates significant available resources to support carbon-intensive industries; 4) Indonesia does not integrate adaptation planning into domestic policies and budgeting; 5) Indonesia fails to ensure that social protection mechanisms work to reduce vulnerability to disasters and climate-related stresses; and 6) Indonesia does not prioritize nature-based adaptation. Indonesian Youths and others v. Indonesia (National Human Rights Commission, Indonesia)

FOCISV Submitted New Application Against FCA Italy to the Dutch National Contact Point Due to Jurisdiction Limitations and Contact Point Accepted Application

On April 4, 2022, FOCSIV and many other Italian associations submitted a specific instance application against FCA Italy to the Italian National Contact Point under the OECD Guidelines for Multinational Enterprises at the Italian Ministry on Economic Development. FCA Italy is a leading Italian company in the automotive sector and is part of the Stellantis NV. The need for decarbonization and ecological transition is pushing the automotive sector to increase production of electric cars. This increase, in turn, is boosting the demand for raw materials needed to produce lithium-ion rechargeable batteries. Cobalt is one such material, and a high percentage of it comes from the Democratic Republic of Congo (DRC), where serious human rights violations have been reported in mining operations. The applicants claim that FCA Italy, which purchases an increasing amount of cobalt from the DRC, is failing to provide adequate information about its suppliers, contrary to the relevant provisions of the OECD Guidelines for Multinational Enterprises. On April 11, 2022, the Italian National Contact Point held that it does not have territorial jurisdiction to hear the case, as the FCA’s parent company Stellantis NV is based in the Netherlands. The applicants submitted a new application to the Dutch National Contact Point. The contact point accepted the application and opened the formal procedure. FOCSIV and others v. FCA Italy (OECD national contact point, Netherlands)