November 2023 Updates to the Climate Case Charts
Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts. If you know of any cases we have missed, please email us at [email protected].
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #176:
The Hawai‘i Supreme Court affirmed a trial court’s denial of oil and gas companies’ motions to dismiss the City and County of Honolulu and Honolulu Board of Water Supply’s (Honolulu’s) common law claims seeking to hold the companies liable for allegedly deceptive marketing and failure to warn of the climate change impacts of their products. With respect to the motion to dismiss for lack of personal jurisdiction, the court concluded that the minimum contacts test for specific jurisdiction was satisfied. First, the court found that Honolulu’s claims “arise out of” or “relate to” the defendants’ sale and promotion of oil and gas in the state. Second, the court found that the seven-factor test for determining whether exercise of specific jurisdiction was reasonable weighed heavily in favor of concluding it was reasonable. In particular, the court found that Hawai‘i had a “significant interest” in providing its residents “with a convenient forum for redressing injuries inflicted by out-of-state actors.” Third, the court rejected the companies’ contention that due process also required “clear notice” that the defendants could be subject to specific jurisdiction. With respect to the companies’ motion to dismiss for failure to state a claim, the court held that neither federal common law nor the Clean Air Act preempted Honolulu’s claims. The court first concluded that because the Clean Air Act displaced federal common law claims regarding interstate pollution abatement and damages, the federal common law could not govern in this case and could not preempt Honolulu’s claims; only the Clean Air Act could preempt the claims. The court further found that federal common law preemption arguments would fail, even if federal common law was not displaced, because Honolulu did not seek to regulate emissions. The court also found that the defendants waived any argument seeking to expand federal common law to tortious marketing and that, in any event, such an argument would fail because regulation of marketing conduct is traditionally a state-governed area. Finally, the court held that the Clean Air Act did not preempt Honolulu’s claims under any theory of substantive preemption (express, field, or conflict). City & County of Honolulu v. Sunoco LP, No. SCAP-22-0000429 (Haw. Oct. 31, 2023)
The federal district court for the District of Alaska dismissed environmental organizations’ claims that federal agency approvals in early 2023 of the Willow Master Development Plan—which authorized oil production on leases in the National Petroleum Reserve in Alaska (NPR-A)—violated the National Environmental Policy Act (NEPA), Endangered Species Act, and other federal statutes. The approved project consists of three drill sites and related infrastructure, including a processing facility, airstrip, operations center, gravel mine, gravel roads, and pipelines.
Under NEPA, the court found that the U.S. Bureau of Land Management (BLM) considered a reasonable range of alternatives, rejecting the plaintiffs’ contentions that BLM had based its selection of alternatives on a “purpose and need” statement that relied on a misinterpretation of BLM’s authority under the Naval Petroleum Reserves Production Act (NPRPA). The plaintiffs contended that BLM should have considered an alternative that “substantially reduces Willow’s carbon footprint” and prohibits infrastructure within the sensitive Teshekpuk Lake Special Area while also allowing production of some oil. The court held that the purpose and need statement’s framing of the authorization of NPR-A oil and gas production while providing for the protection of significant surface resources was reasonable and that BLM considered the requisite reasonable range of alternatives based on the purpose and need. In addition, the court rejected the plaintiffs’ assertion that BLM’s analysis of greenhouse gas emissions from reasonably foreseeable future actions failed to consider emissions from potential future development. The court noted that BLM’s final supplemental environmental impact statement (SEIS) incorporated prior analysis that included “low to high range of projected GHG emissions from future potential projects in the NPR-A” and therefore provided sufficient information about cumulative effects of greenhouse gas emissions from future development that could be induced by the Willow project even if the prior analysis did not include specific projections of downstream emissions from the potential “West Willow” or “Greater Willow” project. In addition, the court rejected the contention that BLM violated NEPA by excluding emissions from construction and routine operations of the West Willow project. The court characterized this exclusion as “inconsequential.”
Under the NPRPA, the court rejected the contention that BLM failed to consider a reasonable range of alternatives and arbitrarily limited its authority, citing the same rationale as it cited for upholding the NEPA alternatives analysis. The court found that the assertion that BLM violated NPRPA by failing to address the impact of the Willow Project’s greenhouse gas emissions on surface resources was “unpersuasive”; the court found that the plaintiffs did not causally link the project’s emissions to specific harms. Under the NPRPA, the court also found that BLM provided sufficient explanations for its rejection of specific measures that the plaintiffs claimed BLM had arbitrarily rejected: (1) a 20-year operating term instead of a 30-year term; (2) periodic review of NEPA analysis if more oil was recovered than anticipated; and (3) mitigation of greenhouse gas emissions through land reforestation.
Under Alaska National Interest Lands Conservation Act § 810, the court rejected the claim that BLM failed to consider alternatives that would reduce impacts to subsistence uses.
Under the Endangered Species Act (ESA), the court first concluded that the plaintiffs had standing to raise all their ESA claims, including claims regarding the ESA consultation on the project’s greenhouse gas emissions. On the merits of the ESA claim, the court concluded that the U.S. Fish and Wildlife Service’s (FWS’s) biological opinion (BiOp) was not arbitrary and capricious in its incidental take analysis of polar bears. The court also rejected the plaintiffs’ contention that BLM, FWS, and the National Marine Fisheries Service failed to consider the effects of Willow’s carbon emissions on protected species. The court upheld BLM’s determination that Willow’s greenhouse gas emissions were not an “effect of the action” under the ESA. In response to a plaintiff’s comment on the draft SEIS that suggested linking the project’s emissions and climate change-related effects to listed species and their critical habitat, BLM prepared a memorandum that stated that the project “is anticipated to result in a marginal increase in global GHG emissions that would contribute to climate change and, potentially, a marginal seasonal decrease in sea ice extent somewhere in the Arctic” but that “any generalized calculations of GHG impacts, such as sea ice loss, at this time would not be able to determine precise effects to individual animals and such consequences would not be reasonably certain to occur.” The court rejected the petitioners’ argument that BLM improperly required “precision” or “granularity” in the ability to predict effects. The court cited the regulations that prescribe criteria for determining what is an “effect of the action,” which provide that a consequence must be “reasonably certain to occur” based on “clear and substantial information.” The court found that BLM “used ‘precision’ and ‘granularity’ as characterizations of the causation issues with the scientific data” to conclude that the evidence was not “clear and substantial enough to render the impact of Willow’s GHG on listed species an ‘effect of the action.’” The court similarly found that FWS’s failure to specifically address the Willow Project’s greenhouse gas emissions in the BiOp was not arbitrary and capricious. The court noted that the BiOp had recognized the impacts of greenhouse gas emissions on climate change and climate change impacts on polar bears and their habitat. The court noted that FWS had acknowledged that “polar bears in the Action Area could become increasingly sensitive to disturbance or other impacts … indirectly associated with climate change” but had found that there was not “sufficient data to reliably predict how the effects of the proposed Action may or may not contribute to increased sensitivity.” In addition, the court cited FWS’s conclusion that climate science was “still insufficient to identify project-specific effects to listed species or designated critical habitat” and that “an estimate of a project-caused decrease in sea ice occurring somewhere in the Arctic, without more specific information … does not enable us to predict any ‘effects of the action’ to listed species or designated critical habitat.” Citing these statements, the court found that the federal agencies considered the relevant factors and articulated a rational connection between the facts and the conclusion that the Willow Project’s greenhouse gas emissions were not an “effect of the action” under the ESA. In addition, the court rejected a contention that FWS failed to consider the best available scientific and commercial data as required by the ESA when it failed to consider the project’s greenhouse gas emissions. The court found that the agencies had considered the scientific studies that plaintiffs contended should have been used to quantify the impacts of the project’s emissions on sea ice and polar bears and seals. But the court accepted the agencies’ conclusion that the studies did not enable them to predict “effects of the action” on listed species or their critical habitat. Sovereign Iñupiat for a Living Arctic v. Bureau of Land Management, No. 3:23-cv-00058 (D. Alaska Nov. 9, 2023)
DECISIONS AND SETTLEMENTS
The federal district court for the Northern District of California “reluctantly” denied a motion to remand the Pacific Coast Federation of Fishermen’s Associations’ climate change case against fossil fuel companies. The organization alleged that its members had suffered financial losses due to climate change and stated that it was suing “in a representative capacity on behalf of its members and the west coast fishing community.” The court found that the suit was a state-law equivalent to a damages class action under Rule 23 of the Federal Rules of Civil Procedure and was therefore removable under the Class Action Fairness Act. The court found that other grounds for removal were without merit. The court asked the parties to address two questions at a case management conference scheduled for December 1, 2023: (1) whether there could be another basis for declining to exercise jurisdiction, “considering either the current complaint or a possible amended complaint,” since, in the court’s view, “the case includes various claims under state law that are quite novel and that the state courts may be better suited to adjudicate,” and (2) whether the court should stay the case pending appeal, which the court said it was “tentatively inclined” to do. Pacific Coast Federation of Fishermen’s Associations, Inc. v. Chevron Corp., No. 18-cv-07477 (N.D. Cal. Nov. 1, 2023)
New Jersey Court Said It Would Not Dismiss Hoboken Climate Case in Deference to New Jersey’s Pending Case
A New Jersey Superior Court rejected fossil fuel industry defendants’ argument that it should dismiss the City of Hoboken’s climate change case against them because it was “nearly identical” to the State of New Jersey’s suit. The court denied the defendants’ motion to dismiss on this ground. The defendants’ motion, which asserted multiple other grounds for dismissal, remains pending. City of Hoboken v. Exxon Mobil Corp., No. HUD-L-003179-20 (N.J. Super. Ct. Oct. 25, 2023)
New York Court Dismissed Challenge to New York City Building Decarbonization Law
A New York trial court granted New York City’s motion to dismiss a lawsuit challenging Local Law 97, which sets increasingly stringent limits on greenhouse gas emissions from existing large buildings in New York City, starting in 2024. First, the court concluded that the plaintiffs did not establish that the New York State Climate Leadership and Community Protection Act (CLCPA) preempted Local Law 97. The court found that the plaintiffs failed to show how the local law would either prohibit conduct the State permits or impose restrictions on State-granted rights. In fact, the court said, the City presented evidence presented evidence that there was no conflict between State and local law on abatement of greenhouse gas (GHG) emissions and that, “rather than identifying any inconsistency or divergence in their objectives, New York State has repeatedly expressed its desire and intent to collaborate with the City and other local governments to abate GHG emissions under the CLCPA.” Second, the court rejected the plaintiffs’ contention that the penalties for violations of Local Law 97 were unconstitutional taxes on greenhouse gas emissions. The court said the plaintiffs’ argument relied on authorities regarding improper “fees” as opposed to improper “penalties.” Third, the court rejected due process challenges to the law. The court found that neither the prospective penalties nor the plaintiffs’ projections of compliance costs were “so severe and oppressive as to be wholly disproportionate to the offense …and obviously unreasonable.” The court also rejected the contentions that the law was unconstitutionally retroactive or impermissibly vague. Additional analysis of the court’s decision is available in this Climate Law Blog post. Glen Oaks Village Owners, Inc. v. City of New York, No. 154327/2022 (N.Y. Sup. Ct. Oct. 27, 2023)
Supreme Court Denied Certiorari in States’ Challenge to Biden Administration Social Costs of Carbon
The U.S. Supreme Court denied the petition for writ of certiorari filed by Missouri and 10 other states seeking review of the Eighth Circuit’s determination that they lacked standing to challenge the Biden administration’s interim social costs of greenhouse gases and President Biden’s executive order requiring the publication of the interim social costs of greenhouse gases and other related actions. Missouri v. Biden, No. 22-1248 (U.S. Oct. 10, 2023)
Supreme Court Declined Review of Minnesota Court’s Rejection of Challenge to Minnesota Adoption of California Vehicle GHG Emissions Standards
The U.S. Supreme Court denied the Minnesota Automobile Dealers Association’s petition for writ of certiorari seeking review of a Minnesota appellate court’s decision that rejected a challenge to the Minnesota Pollution Control Agency’s adoption of California vehicle greenhouse gas emissions standards pursuant to Section 177 of the Clean Air Act. Section 117 authorizes states that have nonattainment or maintenance plans to adopt standards identical to California standards for which a waiver has been granted. Minnesota Automobile Dealers Association v. Minnesota Pollution Control Agency, No. 23-143 (U.S. Oct. 10, 2023)
Ninth Circuit Finds Shortcomings in Analysis of Climate Change Effects on Oregon Spotted Frog in Biological Opinion for Grazing Plan
In an unpublished memorandum, the Ninth Circuit Court of Appeals found that the U.S. Fish and Wildlife Service (FWS) did not adequately address climate change in a biological opinion (BiOp) that considered the impacts on the Oregon spotted frog of a new framework for livestock grazing on the Antelope Allotment in the Fremont-Winema National Forest in south-central Oregon. The court found that the BiOp did not account for climate change as a cumulative effect or baseline condition because it failed to consider how climate change would affect the frog in non-drought years. The Ninth Circuit said the BiOp needed to consider whether the frog population “could sustain grazing-related impacts on top of potential climate change effects,” which the record indicated included “stranding and higher egg mortality due to increased exposure to ultraviolet radiation and pathogens.” In addition, the court noted that the BiOp acknowledged threats posed by low water conditions but found that the BiOp failed to address available information regarding climate change’s impact on the frequency or severity of low water conditions. The Ninth Circuit said it could not address the FWS’s arguments regarding the “too speculative” nature of the climate change information because this explanation was not in the BiOp. In addition, the Ninth Circuit concluded that the BiOp’s mitigation strategies to exclude cattle from critical frog habitat in low water conditions did not render the lack of climate change analysis harmless. The court noted the absence of information indicating that the mitigation strategies “were developed with climate change in mind” and further found that the FWS could not rely on mitigation measures in the absence of a plan to ensure they were implemented. The court concluded, however, that the U.S. Forest Service’s consideration of the effects of climate change and increasing drought on Oregon spotted frogs in the final environmental impact statement, unlike in the BiOp, was sufficient and also ruled for the Forest Service on claims under the National Forest Management Act. Western Watersheds Project v. McKay, No. 22-35706 (9th Cir. Oct. 26, 2023)
Second Circuit Said Federal Government Considered Northward Movement of Summer Flounder in Fishery Allocation
The Second Circuit Court of Appeals agreed with a federal district court that the National Marine Fisheries Service (NMFS) did not violate the Magnuson-Stevens Fishery Conservation and Management Act (MSA) or the Administrative Procedure Act when it set summer flounder quotas in a 2020 allocation rule. The court rejected New York State’s contention that by failing to allocate a higher quota to New York, the 2020 allocation rule ignored northward migration of the summer flounder population (which, New York alleged, was attributable in part to ocean warming) and was therefore inconsistent with four of the MSA’s 10 national standards for fishery management plans. The Second Circuit found that the 2020 allocation was “based upon the best scientific information available” (one of the factors), including information about the northward shift in summer flounder population, because the allocation included “surplus quotas” that increased New York’s quota from 7% to 12% during surplus periods. The Second Circuit also found that the NMFS could base its rule on “multiple sets” of “scientific information,” not just location data. The Second Circuit further found that the NMFS had explained its balancing of the three other standards that New York argued were inconsistent with the allocation. Those three standards were related to fair and equitable allocation of fishing privileges to residents of different states and consideration of efficiency and minimization of costs. New York v. Raimondo, No. 1:23-cv-00859 (2d Cir. Oct. 13, 2023)
Challenges to Iowa Counties’ Regulation of Carbon Dioxide Pipeline Dismissed After Project Canceled
On the same day that Navigator CO2 announced that it had decided to cancel its carbon dioxide pipeline project (known as the Heartland Greenway project), the company joined in filing stipulations of dismissal without prejudice of its lawsuits challenging Iowa county laws that would have regulated the pipeline. The company cited “the unpredictable nature of the regulatory and government processes involved, particularly in South Dakota and Iowa,” as the reason for the cancellation. Navigator Heartland Greenway LLC v. Story County, No. 4:23-cv-00272 (S.D. Iowa Oct. 20, 2023); Navigator Heartland Greenway LLC v. Emmet County, No. 3:23-cv-03013 (N.D. Iowa Oct. 20, 2023); Navigator Heartland Greenway LLC v. Bremer County, No. 6:23-cv-2030 (N.D. Iowa Oct. 20, 2023)
Federal Court Said Plaintiffs Lacked Standing for Case Alleging Etsy Misrepresented Effectiveness of Carbon Offsets for Shipping Emissions
The federal district court for the Central District of California ruled that plaintiffs in a putative greenwashing class action against Etsy, Inc. lacked standing for their false advertising claims, which were based on allegations that Etsy made false representations regarding its offsetting of carbon emissions from its shipping activities. The complaint alleged that “nearly all offsets issued by the voluntary carbon offset market over promise and under deliver on their net carbon impact due to endemic methodological errors and fraudulent accounting on behalf of offset vendors.” The court found that the complaint failed to plausibly allege that the plaintiffs paid a price premium caused by Etsy’s statements about carbon offsetting, noting that the price of the unique handmade products sold on Etsy “may result from a variety of factors that may have nothing to do with whether the platform on which it was sold attempted to offset the carbon from the platform’s shipping activities.” The court therefore dismissed the plaintiffs’ claims of violations of the California Consumers Legal Remedies Act, California False Advertising Law, and California Unfair Competition Law without prejudice. The court dismissed the plaintiffs’ negligent misrepresentation claim with prejudice because the plaintiffs did not make an argument concerning the claim or why the economic loss doctrine did not bar the claim in their opposition to the motion to dismiss. Blackburn v. Etsy, Inc., No. 2:23-cv-05711 (C.D. Cal. Oct. 12, 2023)
Connecticut Federal Court Rejected Defendants’ Bid for Summary Judgment Dismissing Claims that General Permit Covering Terminal Required Consideration of Climate Change Risks
In a lawsuit claiming that Shell Oil Company and other defendants violated federal environmental statutes by failing to prepare a bulk storage and fuel terminal in New Haven for the effects of climate change, the federal district court for the District of Connecticut denied the defendants’ motion for summary judgment on nine claims premised on the contention that Connecticut’s General Permit for the Discharge of Stormwater Associated with Industrial Activity required permittees to consider risk associated with climate change. The court concluded that the permit “unambiguously imposes a minimization duty” that incorporates “best industry practice” and that if best industry practice required consideration of climate change factors, then the permit would include such a requirement even in the absence of explicit language requiring it. The court found that it could not resolve this factual question at this time. In a separate order, the court encouraged the parties “to redouble their efforts to cooperate” on discovery rather than engage in motion practice. The court also encouraged the parties to return to a magistrate judge to consider settlement and also to consider whether they would consent to transfer of the case to a magistrate judge for all purposes, including a jury trial, to achieve greater scheduling certainty. Conservation Law Foundation, Inc. v. Shell Oil Co., No. 3:21-cv-00933 (D. Conn. Oct. 19, 2023)
Kentucky Federal Court Dismissed First Amendment Claim Challenging Kentucky Attorney General’s Investigation of Banks’ ESG Investing
The federal district court for the Eastern District of Kentucky dismissed a First Amendment claim challenging the Kentucky Attorney General ‘s investigation into six national banks’ environmental, social, governance (ESG) investment practices. The six banks were members of the United Nations’ Net-Zero Banking Alliance, and the Attorney General suspected that by devising lending and investment strategies to eliminate global carbon emissions by 2050, the banks discriminated against businesses not aligned with this goal in violation of Kentucky consumer protection statutes and antitrust law. The court found that neither a nonprofit corporation whose membership included national and local banks or a subsidiary of the nonprofit that financed multifamily housing projects had demonstrated standing for the First Amendment claim. Because the only federal claim was dismissed, the court found it could not exercise jurisdiction over the plaintiffs’ state law claims. The court therefore remanded the plaintiffs’ these claims to state court. HOPE of Kentucky, LLC v. Cameron, No. 3:22-cv-00062 (E.D. Ky. Sept. 28, 2023)
Massachusetts Federal Court Rejected Challenges to Offshore Wind Project
The federal district court for the District of Massachusetts rejected challenges to federal agencies’ and officials’ actions in connection with the approval of a wind energy project off the coast of Martha’s Vineyard and Nantucket, Massachusetts. With respect to the National Environmental Policy Act claims—including failure to consider climate change impacts—of an alliance representing commercial fishing interests, the court found that the alliance did not have statutory standing because it asserted only economic injuries. Responsible Offshore Development Alliance v. U.S. Department of the Interior, No. 1:22-cv-11172 (D. Mass. Oct. 12, 2023)
Virginia Court Transferred RGGI Repeal Challenge to Different County
In a lawsuit challenging the Virginia State Air Pollution Control Board’s repeal of regulations regarding Virginia’s participation in the Regional Greenhouse Gas Initiative (RGGI), a Virginia Circuit Court in Fairfax County concluded that the only Fairfax County-based petitioner did not have constitutional or statutory standing and that the County therefore was not the proper venue for the suit. RGGI is a multistate market-based program to reduce greenhouse gas emissions from power plants. The court found that Faith Alliance for Climate Solutions, the Fairfax County-based petitioner, and two other petitioners lacked constitutional standing because they asserted only “generalized grievances concerning a world-wide issue” (i.e., climate change, air pollution, and a transition to renewable energy). Similarly, the court found that the three petitioners did not satisfy the “affected by” standard for statutory standing under the Virginia Administrative Procedures Act. The court transferred the appeal to the Circuit Court of Floyd County, for a determination of whether a fourth petitioner had standing. That petitioner, the Association of Energy Conservation Professionals, alleged that the RGGI repeal would disrupt its members’ businesses and impede weatherization projects funded by RGGI. Association of Energy Conservation Professionals v. Virginia State Air Pollution Control Board, No. CL-2023-12061 (Va. Cir. Ct. Nov. 3, 2023)
Pennsylvania Commonwealth Court Voided Pennsylvania’s RGGI Regulation
The Pennsylvania Commonwealth Court declared that the Pennsylvania rulemaking that made Pennsylvania a RGGI participant was void because it constituted an unconstitutional tax imposed by the Pennsylvania Department of Environmental Protection and Environmental Quality Board. The court found that it was undisputed that “significant monetary benefits” were anticipated from participation in the RGGI carbon dioxide allowance auctions; that there was no cited authority for the agencies to obtain or retain auction proceeds for allowances purchased by non-Pennsylvania covered sources, which are not subject to the agencies’ regulatory authority and “not tethered to CO2 emissions in Pennsylvania”; that only 6% of proceeds would be attributable to the costs of administering the program; and that the auction proceeds would exceed total funds appropriated to the agencies “by nearly threefold.” The court found that participation in RGGI would thus generate moneys “grossly disproportionate” to oversight costs and annual regulatory needs and relate to activities beyond the agencies’ jurisdiction. The court held that the regulations therefore were invalid and unenforceable. The court said that RGGI participation “may only be achieved through legislation duly enacted by the Pennsylvania General Assembly.” Three judges did not participate in the case, and one judge dissented, writing that in her view there were genuine issues of material fact at this stage regarding whether the rulemaking established a fee or a tax. Bowfin KeyCon Holdings, LLC v. Pennsylvania Department of Environmental Protection, No. 247 M.D. 2022 (Pa. Commw. Ct. Nov. 1, 2023); Ziadeh v. Pennsylvania Legislative Reference Bureau, No. 41 M.D. 2022 (Pa. Commw. Ct. Nov. 1, 2023); Calpine Corp. v. Pennsylvania Department of Environmental Protection, No. 357 M.D. 2022 (Pa. Commw. Ct. Nov. 7, 2023)
Connecticut Court Upheld Office of Attorney General’s Redactions in Correspondence Related to Environmental and Climate Litigation
A Connecticut Superior Court found that substantial evidence supported the Freedom of Information Commission’s determination that information redacted in documents produced by the Connecticut Office of the Attorney General (OAG) pursuant to the Connecticut Freedom of Information Act were “records of strategy with respect to pending litigation,” and therefore exempt from disclosure. The documents were produced in response to a request for emails and correspondence from assistant attorneys general, other OAG legal staff, and two outside attorneys dealing with environmental and climate change litigation. Energy Policy Advocates v. Freedom of Information Commission, No. HHB-CV-22-6073766-S (Conn. Super. Ct. Oct. 26, 2023)
Refiner Dropped Suit Challenging Credit Allocation Under Oregon Climate Protection Program
The Portland Business Journal reported that fuel refiner HF Sinclair had withdrawn its challenge to Oregon Department of Environmental Quality (DEQ) orders that gave free credits under Oregon’s Climate Protection Program to Shell, from whom the refiner acquired a Washington refiner in 2021. DEQ told the publication that a settlement between HF Sinclair and Shell had fully resolved Sinclair’s claims against DEQ. HF Sinclair Corp. v. Oregon Department of Environmental Quality, No. 23CV21320 (Or. Cir. Ct. Sept. 22, 2023)
NEW CASES, MOTIONS, AND OTHER FILINGS
The Fourth Circuit Court of Appeals scheduled oral argument for December 6 in fossil fuel companies’ appeals of remand orders in cases brought by the City of Annapolis and Anne Arundel County. Anne Arundel County v. BP p.l.c., Nos. 22-2082, 22-2101 (4th Cir.)
After initially setting a date of November 13 for oral argument in fossil fuel companies’ appeals seeking to reverse the remand to state court of Oakland’s and San Francisco’s climate change cases, the Ninth Circuit Court of Appeals determined that “the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.” City of Oakland v. BP p.l.c., No. 22-16810, 22-16812 (9th Cir.)
The City of New York renewed its motion to remand its lawsuit asserting that fossil fuel companies violated its local consumer protection law. The City argued that federal common law did not provide a basis for removal, that federal officer removal did not apply, that federal enclave jurisdiction did not exist, and that First Amendment defenses did not supply a basis for removal. In addition, the City argued that there was no fraudulent joinder and that the case could not be removed under the Class Action Fairness Act. City of New York v. Exxon Mobil Corp., No. 1:21-cv-04807 (S.D.N.Y. Oct. 20, 2023)
Supreme Court Review Sought on Standing Issue in Challenge to EPA’s Denial of Petition to Reconsider 2009 Greenhouse Gas Endangerment Finding
Two organizations that unsuccessfully challenged EPA’s denial of their petition to reconsider the 2009 endangerment finding for greenhouse gases from motor vehicles filed a petition for writ of certiorari in the U.S. Supreme Court. The question presented by their petition was whether a consumer group challenging a federal agency action can establish the “injury in fact” element of standing with “an evidentiary showing that the policies mandated by that agency action have resulted in large increases in consumer prices in the places where they have been implemented.” Concerned Household Electricity Consumers Council v. EPA, No. 23-418 (U.S. Oct. 17, 2023)
Montana Defendants Sought to Stay Judgment in Youth Plaintiffs’ Constitutional Climate Case
Two months after a Montana trial court ruled that a Montana Environmental Policy Act provision limiting considering of climate change violated youth plaintiffs’ constitutional right to a clean and healthful environment, the defendants filed a motion for clarification and for stay of judgment pending appeal. Held v. State, No. DV-2020-0000307 (Mont. Dist. Ct. Oct. 16, 2023)
Plaintiffs Appealed District Court’s Rejection of Challenge to Investment Duties Regulations
Twenty-seven states, two companies, an energy producers trade group, and two individual plaintiffs appealed a decision by the federal district court for the Northern District of Texas upholding the U.S. Department of Labor’s 2022 amendments of its Investment Duties regulation, which included provisions clarifying that employee benefit plan fiduciaries may consider environmental, social, and governance (ESG) factors such as climate change in risk and return analyses for investment decisions. Utah v. Su, No. 2:23-cv-00016 (N.D. Tex. Oct. 26, 2023), No. 23-11097 (5th Cir. Oct. 30, 2023)
Lawsuit Challenged Cancellation of Oil and Gas Leases on Coastal Plain of Arctic National Wildlife Refuge
Alaska Industrial Development and Export Authority (AIDEA) filed a lawsuit in federal district court in the District of Columbia challenging the U.S. Department of the Interior’s (DOI’s) September 2023 termination of seven oil and gas leases on the Coastal Plain of the Arctic National Wildlife Refuge. The leases were issued in January 2021; DOI suspended the leases in June 2021. After a court rejected a challenge to the suspension, DOI issued a letter canceling the leases, citing, among other things, DOI’s failure in its environmental review for the 2021 leases to provide quantitative estimates of downstream greenhouse gas emissions from foreign consumption or to explain why it could not provide such estimates and DOI’s failure to consider alternatives that involved fewer than 2,000 acres of surface development. AIDEA asserted that the lease cancellations violated the Tax Cuts and Jobs Act of 2017 and the Administrative Procedure Act, that DOI failed to provide AIDEA with due process, and that the cancellation violated DOI regulations. Alaska Industrial Development & Export Authority v. U.S. Department of the Interior, No. 1:23-cv-03126 (D.D.C., filed Oct. 18, 2023)
Lawsuit Filed in New Jersey Federal Court Challenging Federal Approval of Offshore Wind Farm
The County of Cape May, New Jersey, and other plaintiffs filed a lawsuit in federal district court in New Jersey to challenge the Bureau of Ocean Energy Management’s (BOEM’s) approval of the Ocean Wind 1 Project, a 161,000-acre offshore wind farm on the Atlantic Outer Continental Shelf. The asserted claims under the National Environmental Policy Act (NEPA), Administrative Procedure Act, Endangered Species Act, Marine Mammal Protection Act, Migratory Bird Treaty Act, Coastal Zone Management Act, National Historic Preservation Act, Outer Continental Shelf Lands Act, Clean Water Act, and the Rivers and Harbors Act of 1899. In support of the plaintiffs’ NEPA claim, the complaint alleged that BOEM failed to adequately analyze the project’s impacts on greenhouse gas emissions and climate change because the analysis “focuses on partial, project-specific climate impacts in the nearby geographic area but attempts to quantify only emissions offsets from the Project, with limited qualitative descriptions of emissions generated from construction.” The complaint alleged that the defendants did not evaluate activities associated with the supply chain or eventual disposal of wind turbine components, did not compare the project’s climate impacts with alternative renewable energy projects or project locations and designs, and did not including cumulative-level analysis of climate impacts. The developer of the project filed a motion to intervene in support of the defendants. Four days later, however, the developer announced that it would cease development of the project. The plaintiffs subsequently filed their opposition to the motion to intervene, arguing that abandonment of the project defeated the developer’s grounds for intervention. County of Cape May v. United States, No. 1:23-cv-21201 (D.N.J., filed Oct. 17, 2023)
Lawsuit Challenged California’s Advanced Clean Fleets Regulations
California Trucking Association (CTA) filed a lawsuit in the federal district court for the Eastern District of California challenging the California Air Resources Board’s Advanced Clean Fleets (ACF) regulation. The complaint characterized the ACF regulation as comprising four principal parts: (1) regulations to phase in zero emissions vehicles (ZEVs) for state and local government fleets; (2) regulations to phase in ZEVs for “high priority fleets”; (3) regulations to phase in ZEVs for drayage fleets; and (4) regulations to implement a 100% ZEV sales mandate effective in 2036. CTA asserted that the Clean Air Act and Federal Aviation Administration Authorization Act of 1994 preempted the ACF regulation, that it violated the dormant Commerce Clause, and that it violated the Fifth and Fourteenth Amendments of the Constitution due to its vague standards and the discretion granted to CARB’s executive officer to determine whether to grant exemptions. California Trucking Association v. California Air Resources Board, 2:23-cv-02333 (E.D. Cal. Oct. 16, 2023)
Companies, Trade Associations, and Unions Filed Suit Claiming Federal Law Preempted New York State Ban on Gas Equipment in New Buildings
A lawsuit filed in the federal district court for the Northern District of New York challenged New York State laws banning natural gas appliances and infrastructure in certain new buildings. The plaintiffs were “companies, trade associations, and unions that rely on the availability of gas appliances and systems for their livelihoods.” They asserted that the Energy Policy and Conservation Act expressly preempts New York’s laws. Mulhern Gas Co. v. Rodriguez, No. 1:23-cv-01267 (N.D.N.Y., filed Oct. 12, 2023)
Refrigerant Producer Said AIM Act Unconstitutionally Delegated Power to EPA to Implement HFC Phasedown
A company that imports, produces, and sells refrigerants filed a lawsuit in federal district court in Georgia claiming that the American Innovation and Manufacturing Act of 2020 (AIM Act)—which phases down production and consumption of hydrofluorocarbons (HFCs)—is unconstitutional because it transfers legislative powers to EPA. The company alleged that the AIM Act contains “a gaping hole” because Congress “did not provide any instruction or even policy suggestions to EPA regarding who would receive the ‘allowances’ newly required for HFC production and consumption, nor in what amounts or proportions.” The company said EPA’s system of allocation granted some allocations attributable to the company’s products to an ”intellectual property pirate” and to the company’s former business partner rather than the company. The complaint asked the court to make a declaration that the AIM Act “violates the United States Constitution because it fails to provide an intelligible principle as to how an executive agency is to identify allowance recipients or to distribute allowances among recipients, resulting in the transfer of legislative power to the Executive Branch.” The plaintiff also sought permanent injunctive relief. RMS of Georgia, LLC d/b/a Choice Refrigerants v. EPA, No. 1:23-cv-04516 (N.D. Ga., filed Oct. 4, 2023)
Center for Biological Diversity Challenged Decision Not to List Bridled Darter as Endangered or Threatened
Center for Biological Diversity filed a lawsuit in federal district court in the District of Columbia challenging the U.S. Fish and Wildlife Service’s decision to deny Endangered Species Act protection to the bridled darter, a freshwater fish “found only in the headwaters of the Etowah and Conasauga Rivers within the Coosa River basin in northern Georgia and southern Tennessee.” The complaint alleged that the fish “faces growing and intensifying threats from urbanization, agriculture, and climate change.” The complaint contends that the decision not to list the bridled darter as endangered or threatened relied on a 20-year “foreseeable future” timeframe” based on “unsupported assertions” that it would speculative to forecast beyond that time period due to “uncertainty when predicting the species’ response to threats in the future.” The complaint alleged that FWS failed to explain how the darter’s response to future threats, including climate change, “could be expected to change for the better” beyond 20 years. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 1:23-cv-02866 (D.D.C., filed Sept. 27, 2023)
Petitioners Challenged Iowa Agency’s Determination that Water Withdrawal Permit for Carbon Capture Would Have “Beneficial Use”
Three individuals filed a lawsuit in Iowa state court challenging a water withdrawal permit issued by the Iowa Department of Natural Resources, allegedly for carbon dioxide capture facilities at an ethanol plant. Their petition contended that there was no evidence in the record to support the agency’s conclusion that the “beneficial use” of the water was “evident.” They alleged that although the developer claimed that capturing carbon dioxide at ethanol plants would mitigate climate change, “that claim does not consider the life cycle net emissions of carbon dioxide.” The complaint cited written testimony by Dr. Mark Jacobson of Stanford University that they alleged showed that carbon capture does not mitigate climate change. The petitioners also challenged the developer’s contention that the project would keep the ethanol industry from leaving the state for other states that would have a carbon dioxide pipeline. Junker v. Iowa Department of Natural Resources, No. __ (Iowa Dist. Ct., filed Oct. 18, 2023)
HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART
Colombia: Colombian Courts Uphold Indigenous Rights to Informed Consultation on REDD+ Carbon Credit Project
In December 2022, 12 members of the Indigenous community “Gran Cumbal” in Nariño, Colombia, learned of the existence of a contract between the Indigenous community’s authority and SVP Business SAS to purchase carbon credits related to the REDD+ project “Pachamama Cumbal.” Plaintiffs assert the contract was negotiated without their knowledge, even though it would impact Indigenous territory. They argue that the Indigenous authority overreached their functions and that no information was shared with the community. In June 2023, plaintiffs filed a tutela alleging that the private companies involved in the contract and the associated REDD+ project failed to obtain their consent and violated their fundamental rights to free, prior and informed consultation (FPIC), active and effective participation in decision-making, territory as collective property, self-determination and environmental justice from an Indigenous perspective.
On July 21, 2023, the Juzgado Promiscuo Municipal de Cumbal, Nariño (trial level) found that the defendants had violated the plaintiffs’ rights by failing to conduct the FPIC process with the community concerning the contract associated with the REDD+ project. The judge granted a temporary injunction against the REDD+ project and the carbon credit contract and ordered the defendants to conduct an FPIC process within six months following the ILO Indigenous and Tribal Peoples Convention 169.
The decision highlights that these projects incentivize forest protection and aid in reducing GHG emissions. However, the lack of meaningful participation from the Indigenous community violated the plaintiffs` fundamental rights. More importantly, the judge underscored the blatant lack of information regarding the allocation of financial resources resulting from the purchase of carbon credits and asserted the Indigenous communities’ right to information. Hence, the judge ordered the defendants to hold a public hearing where they provide the Indigenous community with a detailed and clear financial report regarding resources from the REDD+ project and the purchase of carbon credits.
The defendants appealed the decision. On August 23, 2023, the Juzgado Tercero Penal del Circuito de Ipiales, Nariño (appellate level) upheld the lower court’s decision. The appellate judge gave the defendants two months to file the request for FPIC before the corresponding authority (Ministry of Interior). The Ministry then has six months to issue a decision on the matter. Members of Indigenous community “Gran Cumbal” v. SVP Business SAS, Global Consulting and Assessment Services SA, Deutsche Certification Body SAS, COLCX and the Indigenous authority of “Gran Cumbal” (Superior Court of Judicial Administration, Colombia)
DECISIONS & SETTLEMENTS
Brazil: Brazilian Court Rules in Favor of State on Sugarcane Straw Burning, Rejects Need for Additional Environmental Impact Studies
On January 18, 2017, the Federal Public Prosecutor’s Office (MPF) filed a public civil action (ACP), with a request for preliminary relief, against the State of São Paulo, CETESB, and IBAMA. It calls for the cancellation of all licenses and authorizations issued by the state agency regarding the authorization for the controlled burning of sugar cane straw in the municipalities covered by the Campinas Judicial Subsection, as well as for the defendants to be prevented from issuing new licenses without the preparation of an environmental impact assessment (EIA). The plaintiff alleges that this activity generates pollution and contributes to global warming. Additionally, the burning of sugarcane straw is repudiated by the UNFCCC (promulgated by Decree 2.652/1998). Finally, the MPF requests that, in the event of an application for a license for this activity, an EIA must be carried out as a condition, and the analysis must be comprehensive, taking into account, among other factors, the changes in the atmosphere related to the GHG emissions and global warming.
On April 17, 2018, in a preliminary decision, the judge determined, among other measures: (i) that CETESB and the State of São Paulo should not grant environmental licenses and permits for the burning of sugarcane straw without first carrying out an EIA in the region referring to the Campinas Judicial Subsection; and (ii) that IBAMA should monitor the requirement for licensing and EIA. The Court found that it was unreasonable to suspend all sugarcane straw burning activities immediately and ordered that the measures be applied from the next harvest onwards. Subsequently, on March 13, 2020, the Court ordered CETESB and the state of São Paulo to refrain from granting new licenses and authorizations that do not include specific licensing with EIA and consider the consequences of the activity for the atmosphere, global temperature and others. IBAMA was ordered to supervise the damage caused by the burning of sugarcane straw.
The defendants appealed the decision. On March 5, 2022, the Court unanimously upheld the appeals. The preliminary objections of inadequate legal remedies and the lack of jurisdiction of the Federal Court were rejected. The court concluded that the interstate or national dimension of the environmental damage was not established, nor was the omission of CETESB such as to impose IBAMA’s competence to supervise the activity, confirming the competence of the state agency. The court highlighted that CONAMA Resolution 237/1997 did not list the burning of sugarcane straw as an activity subject to environmental licensing, and that the Forest Code and state legislation support the authorization granted by CETESB for the burning of sugarcane straw. It also recognized that the activity is suitable for protecting the environment, since the legislation that regulates it provides for the gradual reduction of the use of fire, and that the sudden suspension of the activity would cause serious economic damage, as well as pointing out that CETESB adopts a specific system for issuing authorization for the activity. In October 2022, the case was definitively closed. Federal Public Prosecutor’s Office vs. State of São Paulo, CETESB and IBAMA (Burning of Sugarcane Straw) (2nd Federal Court of Campinas, Brazil)
Brazil: Rio Grande do Sul Court Rules Eldorado do Sul’s Urban Plan Unconstitutional, Highlighting Lack of Public Participation and Climate Concerns
On January 22, 2021, the Attorney General of the State of Rio Grande do Sul brought a Direct Action of Unconstitutionality against Municipal Law 4.968/2019 of Eldorado do Sul, which provides for urban policy and establishes the municipality’s Urban and Environmental Development Master Plan. The plaintiff argued that the approval of the Plan by the City Council took place without popular participation, in violation of the constitutional right to participation recognized in the Constitution of the State of Rio Grande do Sul and the Federal Constitution. The plaintiff argued that the law reduces environmental protection in the city, reinforcing the need for popular participation in the legislative process and a technical study to analyze its environmental impacts. It requests a preliminary injunction to suspend the validity of the contested law and, on a final basis, for the law to be declared unconstitutional. On March 23, 2021, the Reporting Judge granted the injunction due to lack of popular consultation. The judge considered that the city’s master plans, being related to the population’s quality of life, require public discussion. He pointed out that there had been no Environmental Impact Study or Neighborhood Impact Study.
In its amicus brief, the Association of Residents and Friends of Eldorado Park (AMAPE) emphasized that climate change and health represent a core part of the right to a balanced environment. AMAPE argued that the legislative plan to set up an industrial center in the area of Parque Eldorado (a district of the municipality), related to the opening of the Guaíba coal mine, goes against the need to expand renewable energy sources to preserve the planet’s climate. AMAPE stressed the need to stop coal mining to protect the climate, the environment and health, as provided for in the Paris Agreement. AMAPE further claimed that there was no consultation with the indigenous community living nearby.
On December 10, 2021, the special body of the Rio Grande do Sul Court of Justice upheld the request to declare Municipal Law 4.968/2022 unconstitutional, on the grounds that the requirements of reasonable community participation in the drafting of the rule and prior environmental studies on its impacts were not met, considering the climate issue when mentioning AMAPE’s statement. Subsequently, the Municipal Law in question was repealed. The case was definitively dismissed, since the law in question was no longer in force. State ADI 0007238-31.2021.8.21.7000 (Eldorado do Sul Master Plan) (Court of Justice of Rio Grande do Sul, Brazil)
Japan: Japanese Citizens Challenge Government on Climate Action, Arguing CO2 Emissions Violate Human Rights; Supreme Court Upholds Prior Rulings
On November 19, 2018, twelve residents of the Japanese city of Kobe filed an administrative action against the government seeking more ambitious action on climate change. The plaintiffs asked the Osaka District Court to compel the government to cancel the notice of finalization of an environmental assessment of two new coal-fired units, which the plaintiffs allege would emit about 7 million tons of carbon dioxide per year. The plaintiffs also sought an order finding that the government has unlawfully failed to establish regulatory standards consistent with the Paris Agreement.
On April 26, 2022, the Osaka High Court upheld the judgment by the Osaka District Court rejecting the appellant’s request to revoke the Notice of Finalization. The Osaka High Court stated that there must be a legally protected individual interest to have standing under administrative law. While the court recognized the standing of the appellants in relation to air pollution, the court ruled that the interest of the appellants do not include climate damage and that CO2 emissions are not recognized as a legally protected interest in the current society. Furthermore, the court was not able to determine the legality of the Notice of Finalization based on the CO2 emissions as this was a policy issue. Moreover, concerning the lack of consideration of PM 2.5 emissions and concerns related to the emissions of other pollutants, the court stated that there was no deviation nor abuse of the discretionary power. Thus, the Notice of Finalization was legal.
On May 6, 2022, the citizens filed a final appeal and asked the Supreme Court to reverse the judgment given on April 26, 2022. On March 9, 2023, the Supreme Court rejected the request for a final appeal and the judgment by the Osaka High Court was upheld. The Supreme Court stated that it did not find grounds for a final appeal under Article 312 of the Code of Civil Procedure but no specific reasons were given. Thirty-four people appealed, and the process began on October 10, 2023. As their primary claim, the appellants sought an injunction against the operation of the power plant and against Kansai Electric Power’s instructions to generate electricity. As a preliminary claim, they sought a phased emission reduction toward the future so that carbon dioxide emissions will be zero by 2040, since the international goal is to eliminate all coal-fired power plants worldwide by the same year. The appellants, opposing the District Court decision, argued that their rights should be evaluated as being infringed by the state of being exposed to countless individual damages and the continuation of such a lifestyle, without actually having specific disasters. Specifically, the appellants insisted that “being forced to live in a climate unstable world with a temperature increase of over 1.5 degrees Celsius, where life and health are in danger and social instability” itself is a violation of their rights. Moreover, they claimed that not all CO2 emissions are illegal, but only those that would make it impossible to achieve the 1.5 degree target. They alleged that the appellees’ emissions fall under this category. Citizens’ Committee on the Kobe Coal-Fired Power Plant v. Japan (Osaka High Court, Japan)
Brazil: State of Goiás Faces Legal Action for Alleged Failure in Implementing Air Quality and Climate Change Policies; Court Upholds Preliminary Injunction for Environmental Compliance
On October 29, 2021, the Public Prosecutor’s Office of the State of Goiás (MPGO) filed a public civil action against the state of Goiás. It seeks to compel the state to take the necessary measures to improve air quality and, consequently, safeguard the population’s health by implementing a public environmental policy for monitoring and controlling air pollution and climate change. The plaintiff claims that the regional government has failed to comply with public environmental control policies to protect air quality and the climate. It stresses the state’s repeated inertia in combating climate change, controlling air pollution and monitoring vehicle pollution, evidenced by the lack of technical actions, such as implementing a network of air quality monitoring stations, carrying out an inventory of GHG emissions and mobile sources, as well as implementing Vehicle Inspection and Maintenance Programs. The Public Prosecution highlights the omission in the analysis of climate impacts in environmental licensing procedures in the state, and claims that, in line with the National Policy on Climate Change, the State Policy on Climate Change was instituted, but few public policies have been implemented. It also points out the lack of implementation of instruments to prevent atmospheric pollution and climate change, especially the Atmospheric Emissions Control Plan (PCEA) and the Vehicle Pollution Control Plan (PCPV). It highlights the inadequacy of the PCPV in the state of Goiás.
On the merits, it requests that the State of Goiás be ordered, among other measures to: (i) implement public environmental policies to control pollution and combat climate change, by drawing up the PCEA, including a network to monitor air quality throughout the state, from both mobile and stationary sources of gas emissions; (ii) implement a network to monitor air quality throughout the state;(iii) update the PCPV; (iv) draw up, implement and carry out the Vehicle Inspection and Maintenance Program (I/M) and the annual Environmental Vehicle Inspection Program for gas and noise emissions in motor vehicles; (v) define and publish Administrative Regulations establishing (v.1) activities with significant GHG emissions for the purposes of environmental licensing and the requirement to submit a GHG Emission Inventory, (v.2) Term of Reference (TR) criteria for drawing up the Inventory and (v.3) technical criteria and standards for assessing environmental impacts on the micro and macroclimate in environmental licensing procedures in the state, as well as GHG mitigation and compensation instruments; (vi) prove that all environmental licensing procedures in progress that have an Environmental Impact Study and respective Environmental Impact Report (EIA/RIMA) require an inventory of GHG emissions, as well as the obligation to present an assessment of environmental impacts on the micro and macroclimate in the TRs; and (vii) draw up a State Inventory of GHG Emissions.
The judge granted a preliminary injunction on March 8, 2022, ordering the immediate implementation of the violated normative provisions, considering the risk to collective health. In contrast, the state of Goiás filed an interlocutory appeal with suspensive effect, asking for the injunction to be overturned, indicating (i) the absolute nullity of the decision since the federal court would be competent to deal with the case and (ii) the lack of the requirements for granting urgent relief. In addition, the state of Goiás filed an opposition on April 29, 2022. The state argued that only the Executive Branch can determine the form and condition of implementation of environmental public policies, considering the financial resources available. On the merits, it requested that the injunction be dismissed, and the plaintiff’s claims be declared unfounded. In the alternative, it asked that the limits on the reviewability of administrative acts by the Judiciary, the separation of powers and the federal pact be respected.
In the context of the interlocutory appeal, the Court of Justice ruled on August 8, 2022, partially accepting the appeal filed by the state of Goiás. It held that the Court couldn’t examine the preliminary thesis of absolute incompetence of the Common State Court, as the previous court had not examined it. On the merits, it considered that the requirements for granting the injunction had been met. The judge stressed that the installation of systems to control noise and air pollution emitted by motor vehicles in the state of Goiás has a normative basis for compliance and recognized that they had not been effectively implemented, resulting in a violation of the constitutional duty to protect the environment. He further stated that the aggravated decision merely ordered the appellant to comply with environmental laws. It held that the state had sufficient time to implement public policies, such as those aimed at monitoring and controlling air pollution and climate change and controlling noise pollution, which constituted an omission. It, therefore, dismissed the appeal. Prosecutor’s Office of the State of Goiás v. State of Goiás (State public policy on air quality control) (4th State Public Finance Court of Goiás, Brazil)
Brazil: NGOs and Public Offices Sue for Conceição Lagoon’s Protection, Court Orders Advisory Chamber Creation
On May 19, 2021, three NGOs, ONG Costa Legal, UFECO and Associação Pachamama filed an Public Civil Action (environmental class action) seeking structural measures to protect the Conceição Lagoon, located in Florianópolis, Santa Catarina. Later, the Federal Public Prosecutor’s Office (MPF), the Public Prosecutor’s Office of the State of Santa Catarina (MPSC) and the Associação Nacional dos Atingidos por Barragens (ANAB) joined the plaintiffs. The environmental class action was filed against the Municipality of Florianópolis, the Municipal Environment Foundation (FLORAM), the State of Santa Catarina, the Santa Catarina Environmental Institute (IMA/SC), the Santa Catarina Water and Sanitation Company (CASAN) and the Santa Catarina Public Services Regulation Agency (ARESC).
The lawsuit seeks to implement a socio-ecological governance system for the protection, control, monitoring and inspection of the ecological integrity of the Conceição Lagoon. The plaintiffs present the Conceição Lagoon as the subject of ecological rights and claim that, due to the irresponsibility of the current institutional structure, there is an unconstitutional state of affairs. They point out that there is, in its surroundings, a complex mosaic of dunes, sandbanks and forests, part of the Atlantic Forest biome. They explain the importance of the ecosystem services provided by the lagoon, especially for a greater capacity to adapt to climate change of the surrounding ecosystems and communities, which are more vulnerable to the effects of global temperature increase. The plaintiffs emphasize the role of the Lagoon in the local socio-cultural history, highlighting the importance of water quality for the identity of the communities in the region. They claim that the risks of perishing and collapse of the Lagoon’s ecosystem are evident and urgent, generating violations of fundamental rights. They allege structural problems related to ineffective governance by the responsible actors and claim that the impacts of human activities on ecological systems threaten diverse forms of life and are a matter of ecological justice. Finally, the plaintiffs request, among other things, the recognition of the active legitimacy of the associations to claim, besides the protection of the collective right to the environment, the protection of the rights of the Conceição Lagoon. They seek a declaration of the Lagoon as a natural entity with specific rights. Also, they request the recognition of a structural problem which requires the institution of a Judicial Chamber for the Protection of the Conceição Lagoon (CJ-PLC) and, based on its findings, the establishment of a Judicial Plan for the Protection of Conceição Lagoon (PJ-PLC).
A preliminary injunction was granted, determining the creation of the CJ-PLC, to advise the Court in adopting structural measures necessary to guarantee the ecological integrity of the Lagoon as a natural entity. The Chamber is to be composed of the defendants and interested parties. In addition, the decision welcomed the inclusion of the Federal Public Prosecutors’ Office (MPF) and the Public Prosecutors’ Office of Santa Catarina (MPSC) as plaintiffs. The decision was appealed, and the Court of Appeal concluded that the CJ-PLC is not equivalent to a state agency; it does not have decision-making power or the power to impose obligations on any party to the proceedings. It clarifies that the CJ-PLC does not enjoy the prerogative of using public resources and is merely consultative nature to advise the Court on issues that have already been litigated. After a conciliation hearing between the parties, an order was handed down in April 2022 approving the definitive proposal for the composition of the CJ-PLC and its Internal Regulations. ONG Costa Legal and others vs. Municipality of Florianópolis and others (Santa Catarina, Brazil)
United Kingdom: High Court Dismisses Challenges by Greenpeace and Uplift Against UK Government’s North Sea Oil Licensing Decisions; Appeal Status Uncertain
These challenges concern the legality of the following decisions, all of which relate to the licensing of North Sea oil. On September 7, 2022, the UK government adopted its non-statutory Offshore Energy Plan (“the Plan”). This Plan was the subject of a strategic environmental assessment (“SEA”), known as “OESEA4.” On Sep. 8, 2022, the government approved the design of its “Climate Compatibility Checkpoint” (“the Checkpoint”). The stated aim of this policy was to ensure that, before a new North Sea oil and gas licensing round is offered, “the compatibility of future licensing with the UK’s climate objectives is evaluated”. In approving the design of this policy, a proposed test was omitted. That test would have considered whether end-use emissions from the combustion of UK oil are expected to fall in line with the 1.5°C temperature target, if further licensing rounds are approved.
On September 16, 2022, the government decided that a further licensing round was compatible with the UK’s climate objectives. That was informed by departmental analysis by reference to the Checkpoint. On Oct. 4, 2022, the Oil and Gas Authority (“OGA”) invited applications for offshore oil and gas licenses under section 3 of the Petroleum Act 1998, in what is known as the 33rd Offshore Oil and Gas Licensing Round. The OGA is a company wholly owned by the UK government which, since March 2022, has traded under the name “The North Sea Transition Authority.”
These decisions were challenged in public law claims issued in December 2022 by environmental charities Greenpeace and Uplift. In April 2023, both claims were granted permission to proceed to trial. In July 2023, they were heard. In October 2023, the High Court dismissed both claims, rejecting all the grounds of challenge: The decision in OESEA4 not to assess end-use emissions from further oil and gas licensing rounds was rational. There was no breach of the relevant SEA regulations. Whilst the leading case of R(Finch) v Surrey County Council [2022] EWCA Civ 187 concerned environmental impact assessment, not SEA, the factual context and the two regimes were sufficiently analogous that important parts of the Finch analysis were applicable. Here, the Plan only set the framework for licensing oil and gas exploration and production in the North Sea. It did not set the framework for downstream development, such as refinement and storage. The end-use emissions from uses of the extracted oil and gas were not therefore “likely significant effects” of the Plan under the SEA regulations. Further, it was lawful for the government to conclude there was an insufficient causal connection between new oil and gas licensing and end-use emissions, and to decline to assess such emissions on that basis also.
The government did not fail to properly assess “reasonable alternatives” under the SEA regulations. That failure was said by the claimants to have resulted from a failure to properly assess the alternative of not proceeding with further licensing. However, to the extent this entailed arguments about market substitution, these did not arise, given that end-use emissions were not assessed. As to assessments of production emissions, these were matters of judgment. Nor was it unlawful for the government to have concluded that imports would have a higher emissions intensity than UK-produced hydrocarbons.
The reasons for omitting the end-use emissions test from the Checkpoint were lawful and rational. It was also rational for the government to rely on the Checkpoint when adopting the Plan and deciding the new licensing round was compatible with the UK’s climate objectives. The Checkpoint is not a statutory plan or policy. It is an informative, non-binding document to assist ministers in deciding whether to support or not support a further licensing round. It was a matter of judgment for the Secretary of State as to whether he considered there to be an appropriate test or benchmark for taking scope 3 emissions into account on a decision whether or not to support a new licensing round.
The failure to publish reasons for deciding a new licensing round would be compatible with the Checkpoint and the UK’s climate objectives was not unlawful. There was no common law duty to give reasons. (Judgment, paragraphs 151 to 158.) Further grounds of challenge related to the OGA’s decision to carry out the 33rd licensing round necessarily failed, given the findings above (judgment, paragraphs 58 and 159). It is not known whether the claimants intend to appeal to the Court of Appeal. Greenpeace Ltd v (1) Secretary of State for Business, Energy and Industrial Strategy and (2) the Oil and Gas Authority; and Uplift v (1) SSBEIS and (2) the OGA (North Sea oil and gas licensing) (High Court of Justice, United Kingdom)
Mexico: Mexican Collegiate Court Recognizes Plaintiffs’ Right to Sue in Climate Case; Awaits Supreme Court’s Verdict
On September 21, 2023, the Collegiate Court that heard the appeal decided to reverse the Judge’s decision to dismiss the case for a lack of legal standing. The Collegiate Court decided that the plaintiffs did have legal standing to file the lawsuit. The jurisprudential criteria in environmental cases in Mexico to know whether a person has standing or not, is that there must be a link between the plaintiffs who claim to be right holders and the environmental services provided by the ecosystem allegedly violated. In this case, since it is climate change, a direct link with the ecosystem cannot be argued.
However, the Collegiate Court determined that the link between the plaintiffs’ right to health and to a healthy environment, and the environmental services provided by the ecosystem allegedly violated, is proven by the fact that they live in Mexico and the legal norms and plans that they claim have not been issued by the responsible authorities in compliance with the General Law on Climate Change, could have an impact on the entire national territory. This means that all the ecosystems of the country will benefit from the provisions, rules, plans and strategies that must be issued, since their purpose will be to counteract the effects and prevent possible damages derived from climate change, which is a phenomenon that impacts the entire planet and not only a specific place.
In addition, the case was analyzed considering the principle of citizen participation and the correlative principle of public initiative in environmental matters, as well as the precautionary principle. Therefore, regarding the legal standing, the Court decided that the plaintiffs have standing to file the lawsuit. In relation to the merits of the case, the Collegiate Court sent the case to the Mexican Supreme Court, so that they may resolve the lawsuit. The Supreme Court’s decision is pending. Youth v. Government of Mexico (Collegiate Court, Mexico)
NEW CASES, MOTIONS, AND OTHER FILINGS
Brazil: Political Party Challenges Goiás State Laws Over Alleged Environmental and Constitutional Violations
On August 24, 2023, the political party Rede Sustentabilidade (Rede) filed a Direct Action of Unconstitutionality (ADI), requesting a precautionary measure against the State Laws n. 22.017/2023 and n. 18.104/2013 of the state of Goiás. The case is supported by six NGOs that signed the initial petition and requested to be admitted as amicus curiae. It questions the constitutionality of several articles of State Law 18.104/2013 and State Law 20.017/2023, which amend various environmental provisions contained in (i) State Law 18.102/2013, on environmental administrative infractions; (ii) State Law 18.104/2013, the Goiás Forest Code; and (iii) State Law 20.694/2019, on environmental licensing at the state level. The plaintiff argues that the law approved in 2023 was passed too hastily and without any debate, participation by civil society or an opinion from the legislative body’s Environment Committee, presenting material and formal violations of the Federal Constitution.
It is argued that the changes to state legislation promoted by Law 20.017/2023 are detrimental to the protection of the Cerrado biome, water security in the region and the fight against climate change. The plaintiff points out that the biome stores huge amounts of carbon and is important in the fight against global warming. Thus, the growing deforestation of the region, allegedly also encouraged by the contested legislative changes, has serious implications for the climate emergency. The plaintiff argues that the provisions are unconstitutional considering the violation of (i) the principles of publicity and transparency, (ii) the principle of non-regression on environmental matters, and (iii) the right to an ecologically balanced environment and the duty to protect the environment. It alleges the relaxation of environmental rules, the violation of the competencies of the Federal Union regarding forestry law and the Municipalities regarding licensing law. Additionally, the plaintiffs argue that they represent a direct violation of the Paris Agreement by promoting deforestation. As an injunction, the plaintiff requests the suspension of the effects of several provisions of State Law 22.017/2023 and State Law 18.104/2013. On the merits, the plaintiff requests the declaration of unconstitutionality of the provisions. ADI 7438 (environmental protection of the Cerrado biome) (Federal Supreme Court, Brazil)
Brazil: IBAMA Files Environmental Class Actions Over Unauthorized Cerrado Deforestation
On September 11, 2023, Brazil’s Federal Environment Agency (“IBAMA”) filed two public civil actions (environmental class action) against Minerva Ribeiro de Barros and Genesisagro S/A, and Brandão de Souza Rezende and Jovino Moreno de Miranda, respectively, seeking compensation for environmental and climate damages. The plaintiff claims that several hectares of native Cerrado forest were cleared without prior authorization from the competent environmental agency. IBAMA highlights the great importance of the Cerrado biome and that the advance of illegal deforestation in the biome contributes to the climate crisis. According to remote sensing images, the plaintiff claims the area continues to be exploited (even though IBAMA has embargoed it) without adopting regeneration measures. IBAMA argues that the defendants have civil liability for the specific environmental damage caused by the irregular suppression of native forest in the Cerrado and the existence of resulting environmental damage that includes damage to fauna, soil, climate and biodiversity, among other harmful consequences related to deforestation. Several measures to secure the prohibition of further exploitation of the deforested area are requested as an injunction. As a final request, IBAMA requested that the defendants be ordered to (i) recover the deforested area, (ii) pay collective moral damages, (iii) pay for the transitory and residual damage caused to ecological heritage, in addition to compensation for the economic profit obtained illegally, including climate damage. IBAMA vs. Minerva Ribeiro de Barros e Genesisagro S/A (Maranhao Federal Court, Brazil) and IBAMA vs. Brandão e Jovino (Toncantins Federal Court, Brazil)
Brazil: Cattle Raiser Faces R$292M Suit for Climate Damage from Illegal Deforestation in Amazonas
On September 12, 2023, Brazil’s Federal Environment Agency (“IBAMA”) filed a public civil action (class action) against Dirceu Kruger for climate damage. The defendant is a cattle raiser and has been fined several times by the environmental agency for illegal deforestation of a total of 5,600 hectares in the state of Amazonas, using fire. It is argued that his illegal activities have impacted the biomass of the Amazon, illegally interfering with the forest’s carbon stock and emitting GHG, intensifying the climate crisis. IBAMA highlights that climate damage is projected continuously and addresses residual environmental damage in climate matters, corresponding to effects and imbalances that cannot be remedied. Climate damage also implies intergenerational environmental damage since it spreads indefinitely, causing future damage. The plaintiff argues that the defendant’s conduct was held under violation of the Paris Agreement and that the international obligations internalized by Brazil are binding, implying the determination of reparability of environmental climate damage. IBAMA quantified the climate damage based on a series of studies related to Amazonian deforestation and the social cost of carbon. Thus, deforestation generated the illegal emission of 901,600 tons of carbon, resulting in the obligation to pay the amount of R$292,118,400.00. As a preliminary injunction, it is requested that (i) the litigious nature of the property which is the subject of the action be recognized; (ii) the defendant be ordered not to transfer the occupation of the area to third parties; (iii) the defendant be prohibited from leasing or lending chainsaws and other deforestation tools; (iv) the defendant be prohibited from selling or donating oxen or agricultural products; (v) the blocking or unavailability of assets in the equivalent amount of R$292,118,400.00; (vi) the suspension or restriction of the defendant’s access to tax benefits and credit lines; (vii) the defendant be ordered to implement carbon sinks. On the merits, the plaintiff claims that the defendant be condemned to (i) repair the environmental climate damage in ecological compensation; (ii) repair the interim climate damage; (iii) promote ecological compensation; (iv) promote financial compensation for illegal GHG emissions, with the amount of R$292,118,400.00 being reverted to the National Climate Change Fund; (v) promoting financial compensation to be set by the court for the amounts to be reverted to funds for preventing and responding to climate disasters; (vi) compensating the amount related to the disgorgement of profits; and (vii) confirming the requests made as a matter of urgency. IBAMA v. Dirceu Kruger (Illegal deforestation in the Amazon and climate damage) (Amazonas Federal Court, Brazil)
Brazil: Health and Sustainability Institute Sues Federal Union, IBAMA, and Automakers over Vehicle Emission Limits; Courts Await Verdict
On April 26, 2022, the Health and Sustainability Institute filed a public civil action against the Federal Union, IBAMA, Toyota do Brasil Ltda, Nissan do Brasil Automóveis Ltda and Renault do Brasil S.A. The action intends to declare the nullity of IBAMA Normative Instruction (IN) 23/2021, which extends the validity of Licenses for the Use of Vehicle or Engine Configuration for models that do not meet the new pollutant emission limits referring to light road vehicles. The Resolution deals with the Program on Air Pollution from Motor Vehicles (PROCONVE), which, among its objectives, seeks to reduce pollutant emissions from motor vehicles to meet Air Quality Standards. The plaintiff argues that the IN extends the permission to produce and sell vehicles that emit more GHG and goes against the commitments to reduce emissions made by Brazil under the Paris Agreement. In addition, it goes against the public authorities’ duty to protect the environment, set out in Article 225 of the Federal Constitution, and the principles of prevention, precaution, and prohibition of environmental backsliding. It also claims that the normative change generates environmental damage, to human health and the climate system, insofar as it authorizes the unrestricted growth of the automotive fleet, characterized by the burning of fossil fuels, which is proven to be responsible for worsening the greenhouse effect. It argues that the effects of the climate crisis disproportionately affect the most socio-economically vulnerable populations. For these reasons, it requests, among other measures, in advance, (i) the suspension of the effects of IN 23/2021 and, on the merits, (ii) the declaration of nullity of said IN, (iii) the condemnation of the defendants for material damages to the environment and (iv) the condemnation of the defendants to pay compensation for collective damages.
On September 22, 2022, the court granted the request for injunctive relief and ordered the defendants to submit reports containing the number of vehicles produced between December 31, 2021, and March 31, 2022, that did not meet the emission limits of the PROCONVE L-7 phase and suspended the effects of IN 23/2021. Health and Sustainability Institute v. the Federal Union and others (Emission of pollutants by motor vehicles) (Instituto Saúde e Sustentabilidade vs. União Federal e outros (Emissão de poluentes por veículos automotores)) (2nd Federal Civil Court of São Paulo, Brazil)
Brazil: Plaintiffs Challenge Brazil’s Reduced Biodiesel Mandate Amid Environmental Concerns
This is a Popular Action with a request for an injunction filed on January 7, 2022, by two individuals against an act carried out by the President of the Republic, the President of the CNPE (National Energy Policy Council) - the occupation of the Minister of State for Mines and Energy - and the Federal Union. The action seeks the annulment of an act that determined the reduction of the mandatory blending of biodiesel in diesel oil to 10% during 2022 (B10), under the terms of CNPE Resolution 25/2021, approved by Order of the President of the Republic.
The plaintiffs request that CNPE Resolution 16/2018 be observed so that the mandatory blend of biodiesel in diesel is 13% (B13) in January and February 2022 and 14% (B14) from March 2022, in keeping with the gradual increase in the blend previously announced by the authorities. In 2021, the President of the Republic and the President of CNPE established a temporary measure to reduce the mandatory percentage to 10% for the other auctions to be held in the year to reduce the price of diesel sold to end consumers. However, through CNPE Resolution 25/2021 and an order formalized in December 2021, the President of CNPE and the President of the Republic maintained the mandatory minimum percentage of 10% biodiesel in diesel for the whole of 2022, contrary to the previous CNPE resolution (16/2018).
The plaintiffs claim that this change is harmful to the environment, administrative morality, and public assets, and unconstitutional and illegal. The plaintiffs allege that the percentage reduction in the blend violates the legal order of environmental protection established at the constitutional, legal, and international levels, including the Federal Constitution, the RenovaBio Law, the National Policy on Climate Change, the Paris Agreement, nationally determined contributions (NDCs) and climate targets presented by Brazil. They maintain that there is damage to administrative morality to the extent that (i) the Public Administration goes against its own rules and manifestations, (ii) there is damage to the biodiesel production chain, and (iii) there is non-compliance with the objective and principle of promoting predictability established by RenovaBio.
They request, as a preliminary injunction: (i) the suspension of the harmful act and, consequently, the determination of compliance with CNPE Resolution 16/2018; and (ii) in the alternative, as long as there is no publication of the conclusive technical note of the study group created to evaluate the mixture of biodiesel in diesel, the suspension of the harmful act and determination of compliance with CNPE Resolution 16/2018. On a final basis, they request: (i) the ratification of the injunction; (ii) the annulment of the harmful act; and (iii) the determination of compliance with CNPE Resolution 16/2018, complying with the “B13” percentage in January and February 2022, and “B14” from March 2022.
In its decision on the preliminary injunction on May 18, 2022, the court held that the contested act falls within the scope of the technical-administrative discretion of the Public Authority and that it was duly justified in the public interest. Federal Law 13.033/2014 determines that the mandatory minimum percentage is 6% and, as the reduction had been to 10%, it considered that there had been no violation of legality or damage to administrative morality. He also pointed out that the Ministry of the Environment, which sits on the CNPE, had not objected to the proposal to reduce the biodiesel content. He concluded that the Judiciary should not interfere with the Public Administration, under penalty of violating the separation of powers. The request for an injunction was dismissed. A judgment was handed down on October 30, 2022, dismissing the Popular Action. The court reiterated the grounds presented in the preliminary injunction and added that, after this initial rejection, no other evidence could alter the judgment on the facts alleged in the initial decision. The case was referred to the TRF-4 for analysis, but no judgment has yet been handed down. Lucas Martins and Paulo Henrique Nagelstein v. the President of the Republic, the Minister of Mines and Energy and the Federal Government (Reduction in the percentage of biodiesel blended with fossil diesel) (2nd Federal Court of Porto Alegre, Brazil)
Brazil: Carbonext Sues Amazon Imóveis Over Carbon Credit Dispute
Carbonext is a company dedicated to the preservation of the Amazon, working in the development and implementation of carbon credit projects (REDD+, Reducing Emissions from Deforestation and Forest Degradation), whose objective is to reduce greenhouse gas (GHG) emissions and prevent deforestation in the Amazon rainforest. Individuals and companies can purchase these assets’ carbon credits on the voluntary market to offset GHG emissions. Carbonext acquires carbon credits from projects it manages or from assets purchased from other companies and resells them to finance environmental preservation and the development of local communities in the Amazon. The amounts obtained through the purchase and sale of carbon credits fund the environmental preservation and development of local communities in the Amazon Forest. Amazon Imóveis owns 3% of the carbon credits generated by the REDD+ project called “The Envira Amazonia Project – A Tropical Forest Conservation Project in Acre, Brazil.”
Carbonext and Amazon Imóveis made a contract for the purchase of carbon credits. Amazon Imóveis promised to sell and transfer 331,080 carbon credits. Carbonext paid the price by December 31, 2021. The debtor had to transfer the assets within up to five business days, counted from the signing of the contract on February 26, 2021. In line with market practice, Carbonext requested the transfer of carbon credits as it sold to companies interested in neutralizing GHG emissions. Initially, Amazon Imóveis transferred 5,000 credits to the claimant, referring to the 2017 harvest. In April 2017, Carbonext asked Amazon Imóveis to transfer 16,990 units of carbon credits, which they denied. Carbonext sent a pre-judicial letter requesting the transfer of credits, which was not complied with.
On July 12, 2021, Carbonext filed a lawsuit to execute the contractual obligation under the Civil Procedure Code (Federal Law 13,105/2015). The plaintiff requires the (i) transfer of 326,080 carbon credits by Amazon Imóveis to Carbonext within five business days and (ii) for the court to set up a daily fine if the transfer of credits is not done. On July 13, 2021, the court of first instance issued an official decision to warn the debtor to satisfy the obligation within fifteen days, under penalty of a daily fine. However, Amazon Imóveis did not fulfill the court order as it started judicial proceedings questioning the debt (motion to stay in execution, autonomous action no. 1088560-57.2021.8.26.0100 and interlocutory appeal with a request for preliminary injunction no. 2180421-19.2021.8.26.0000. The plaintiff requested the carbon credits’ custodian, Carbonfund.org Foundation, to transfer the credits from Amazon Imóveis to the creditor, which was accepted by the court and complied with by Carbonfound. However, given non-compliance with the decision, Carbonext requested the payment of the amount related to the daily fine. Amazon Imóveis later informed the court that it had fully complied with the contractual obligations. Accordingly, the court extinguished the process on October 7, 2021, precluding the right to appeal for lack of procedural interest.
Amazon Imóveis later filed a motion alleging that (i) the court’s sentence extinguishes the process without giving the appellant/executed party an opportunity to express their views regarding information brought by the appellee/executioner in its petitions; (ii) the fine established in the injunction was not confirmed in the sentence, therefore, it is not enforceable; and (iii) the deduction of the price by the appellant/executioner is improper. It requires a new integrative/clarifying pronouncement to remedy the ambiguity and annul the appealed judgment. The motion was not upheld and the company filed an appeal challenging the decision. Carbonext Tecnologia em Soluções Ambientais Ltda. v. Amazon Imóveis (Voluntary Carbon Market) (44a Vara Civel, Brazil)
Brazil: Legal Action Halts Guaíba Mine Project Due to Environmental Concerns; Case Paused Pending Outcome of Related Lawsuit
This is a Public Civil Action (ACP), with a request for urgent provisional relief of a precautionary nature on an incidental basis, filed on September 9, 2020, by the Arayara Association of Education and Culture against Copelmi Mineração Ltda., FEPAM and the National Water Agency (ANA), claiming that the Guaíba Mine Project will cause harmful impacts to the inhabitants of the metropolitan region of Porto Alegre, as a result of hydrological risks. The project is the largest open pit coal mine in Brazil, with a high potential for water pollution. The plaintiff points out flaws in the Environmental Impact Assessment (EIA) of the project, neglecting to comply with important permitting phases, such as holding public hearings in affected communities. The plaintiff claims that the project poses a risk of pollution, especially to the Jacuí River, which contributes 86.3% of the average flow of Lake Guaíba, which is responsible for supplying drinking water to several municipalities. It highlights the need to analyze the extent of possible environmental damage resulting from the undertaking and the synergies with other infrastructures designed for the region. It also argues that the Guaíba Mine Project will impact the balance of water resources, which is inextricably linked to climate change, and thus mobilizes the National Policy on Climate Change – PNMC (Federal Law 12,187/2009).
Therefore, actions such as pollution of springs, diversion of water courses, lowering of water tables, drainage of aquifers, among other harmful measures related to the Project, are directly or indirectly related to climate change. It is required, among other points, (i) as a preliminary injunction, the suspension of the permitting process for the Guaíba Mina Project until the judgment on the merits, so that the installation of the mine is prohibited and (ii), on the merits, the prohibition of the installation of the project in the originally planned location, in view of the irreversible environmental damages that it will cause to the region, in addition to the declaration of nullity of the environmental licensing procedure with the initiation of a new procedure that contemplates all the risks and the elaboration of an action plan for emergency, with a view to mitigating the consequences of possible environmental damage.
After the defendants’ preliminary statements, a decision was rendered on November 5, 2020, recognizing the passive illegitimacy of ANA and, consequently, the incompetence of the Federal Court to judge the action. Thus, the action was redistributed in the Court of Justice of the State of Rio Grande do Sul (TJRS). Subsequently, there was a decision determining the suspension of this process for six months, considering that the permitting procedure for the Guaíba Mine project was declared null and void in the scope of the case “Arayara Association of Education and Culture and others v. FUNAI, Copelmi Mineração Ltda. and FEPAM (Mina Guaíba Project and affected indigenous communities).” The suspension was determined to await the exhaustion of the appeal phase and the confirmation or not of the decision of that lawsuit. Arayara Association of Education and Culture vs. Copelmi Mineração Ltda. and FEPAM (Guaíba Mine Project and hydrological risks) (Court of Justice of the State of Rio Grande do Sul (TJRS), Brazil)
Romania: Declic NGO and Individuals Challenge Romanian Government on Climate Measures; Demand Stricter GHG Emission Reductions in Cluj Court of Appeal
On January 31, 2023, the NGO Declic and a number of individuals lodged a case before the Cluj Court of Appeal against the Romanian Government, the Ministry of Energy, the Ministry of Environment, Water and Forests, seeking that the court order the authorities to take all necessary measures to reduce GHG emissions by 55% by 2030 compared to 1990 levels and to achieve climate neutrality by 2050. They also demand that the Court order the Romanian Government to take adequate measures to increase the share of renewable energy in final energy consumption to 45% and to increase energy efficiency by 13% by 2030. Further, they requested the court to order the Romanian authorities to implement concrete and coherent climate change mitigation and adaptation plans, including annual carbon budgets, within a maximum of 30 days from the final judgment, in order to meet the objectives of the Paris Agreement.
The plaintiffs have asked the court to answer three questions:
1. Whether national authorities are in breach of their legal obligations by applying GHG emission reduction targets for 2030 that are significantly lower than the target agreed at EU level for 2030.
2. Whether, according to objective standards (such as the reasonableness tests applied by the UN Committee on Economic, Social and Cultural Rights), the measures taken by central authorities are sufficient, proportionate and will result in limiting global warming to 1.5-2 degrees Celsius?
3. Whether the measures taken by the defendants are compatible with the rights and freedoms guaranteed by the Romanian Constitution, the EU Charter of Fundamental Rights and the ECHR (right to a future in accordance with human dignity, right to health and an ecologically balanced environment, right to life and privacy).
The claimants argue that the defendants have general and specific legal obligations to mitigate and adapt to climate change. The general obligation stems from several sources of law, namely: (i) the Constitution of Romania, which provides that the Romanian government shall ensure a better quality of life for its citizens, and restore and protect the environment; (ii) the Paris Agreement, and (iii) the European Climate Law. They highlight that public property does not mean that the government can exploit it with no regard to the consequences, but rather in the public interest. Natural resources such as soil, water, air, wildlife are part of an enduring heritage, and the government has a statutory duty to preserve them to safeguard citizens’ constitutional rights to a healthy environment, to life, and the like. Specific obligations derive from European and national secondary legislation and soft law instruments (Repower EU and domestic plans) and deal with increasing the share of renewables in the national energy grid and energy efficiency. For instance, in the field of renewable energy, it can be observed that Romania’s ambitions are falling (38% for 2020, compared to 30.07% for 2030). Overall, the claimants conclude that the Romanian government has taken meager measure and is failing to meet its legal obligations. Declic et al. v. The Romanian Government (Cluj Court of Appeal, Romania)