Litigation Updates

October 2021 Updates to the Climate Case Charts

October 05, 2021

By Margaret Barry, Maria Antonia Tigre, and Korey Silverman-Roati

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 #151.

FEATURED CASE

Federal Court Vacated Decision Not to List Joshua Trees as Threatened Due to Inadequate Consideration of Climate Change Effects

The federal district court for the Central District of California set aside the U.S. Fish and Wildlife Service’s (FWS’s) 2018 determination that listing the Joshua tree as threatened or endangered under the Endangered Species Act was not warranted. The court found that the FWS “selectively relied on beneficial data and failed to consider and evaluate the contrary data” regarding climate change’s adverse impacts on Joshua trees. In addition, the court found that the FWS’s findings regarding the threats posed by climate change and wildfire were “unsupported, speculative, or irrational,” including the FWS’s findings that Joshua trees would be able to persist at 138°F and would be able to migrate to climate refugia. Because the FWS failed to consider contrary data on climate change’s adverse effects or explain its decision not to consider such data, the FWS’s conclusion that Joshua trees were not threatened in a significant portion of their range was also arbitrary and capricious. Because the FWS’s conclusion that existing regulatory mechanisms were adequate to protect Joshua trees was based on the arbitrary and capricious determination that they did not warrant listing, the court also found the conclusion regarding the adequacy of regulatory mechanisms to be arbitrary and capricious. Although the court’s finding on this point was not based on the FWS’s alleged failure to consider the threat posed to Joshua trees by inadequate regulatory mechanisms addressing climate change, the court said the FWS should consider this issue on remand. WildEarth Guardians v. Haaland, No. 2:19-cv-09473 (C.D. Cal. Sept. 20, 2021).

DECISIONS AND SETTLEMENTS

Louisiana Federal Court Allowed States to Proceed with Challenge to “Pause” on Onshore and Offshore Leasing

On September 22, 2021, the federal district court for the Western District of Louisiana denied the Biden administration’s motion to dismiss claims by Louisiana and 12 other states challenging the administration’s “pause” on new offshore and onshore oil and gas leasing. The court agreed with the entirety of a magistrate judge’s report and recommendation that recommended denial of the motion. First, the magistrate found that the plaintiffs sufficiently alleged facts demonstrating that President Biden’s Executive Order 14008—which ordered the pause—exceeded the President’s statutory or constitutional authority and that the states therefore stated a claim against the President for ultra vires review. Second, the magistrate found that the states’ allegations of economic harm established their entitlement to an exception to the Outer Continental Shelf Lands Act’s (OCSLA’s) 60-day notice requirement. The magistrate further found that the states’ claims that the defendants violated the OCSLA and the Mineral Leasing Act were reviewable under the Administrative Procedure Act (APA). The magistrate was not persuaded by the defendants’ arguments that the claims were improper programmatic challenges and that agency actions were not final. Louisiana v. Biden, No. 21-cv-778 (W.D. La. Sept. 22, 2021).

D.C. Circuit Denied Rehearing of Decision Vacating FERC Authorization for St. Louis Pipeline

On September 7, 2021, the D.C. Circuit Court of Appeals denied respondent-intervenors’ petitions for panel rehearing and rehearing en banc of the court’s June 2021 decision vacating Federal Energy Regulatory Commission (FERC) orders authorizing a natural gas pipeline in the St. Louis area. The June 2021 decision held that FERC acted arbitrarily and capriciously by failing to address arguments and evidence regarding self-dealing by the applicant and an affiliate and by failing to conduct an adequate balancing of public benefits and adverse impacts. Environmental Defense Fund v. Federal Energy Regulatory Commission, No. 20-1016 (D.C. Cir. Sept. 7, 2021).

King County Voluntarily Dismissed Climate Change Suit Against Fossil Fuel Companies

On September 28, 2021, King County filed a notice of voluntary dismissal in its climate change case against fossil fuel companies. On August 23, the defendants had filed motions to dismiss the lawsuit for lack of personal jurisdiction and for failure to state a claim. Proceedings in the case had been stayed between October 2018 and July 2021 while the appeal of the district court’s dismissal of Oakland and San Francisco’s cases was pending. King County v. BP p.l.c., No. 2:18-cv-00758 (W.D. Wash. Sept. 28, 2021).

Federal Court Again Dismissed Religious Order’s Religious Freedom Restoration Act Claims Against Pipeline Company

For a second time, the federal district court for the Eastern District of Pennsylvania dismissed an action brought by a vowed religious order of Roman Catholic women and individual members of the order against the developer of the Atlantic Sunrise Pipeline under the Religious Freedom Restoration Act (RFRA). The plaintiffs asserted that the pipeline—which was constructed across their property—“substantially burdened [their] exercise of their deeply-held religious beliefs to use and protect their land as part of God’s creation.” They cited a “Land Ethic” adopted by the order in 2005, as well as Pope Francis’s 2015 encyclical letter Laudato Si. The federal court previously dismissed the plaintiffs’ earlier RFRA action, and the Third Circuit affirmed, on the grounds that the Natural Gas Act foreclosed judicial review of a Federal Energy Regulatory Commission (FERC) certificate in district court, and that the plaintiffs had foreclosed judicial review of their claims because they failed to bring them before FERC initially. In the instant case, the district court found that the fact that the plaintiffs were now seeking money damages instead of injunctive relief did not cure the jurisdictional defect. Adorers of the Blood of Christ v. Transcontinental Gas Pipe Line Co., No. 5:20-cv-05627 (E.D. Pa. Sept. 30, 2021).

Federal Court Required BLM to Undertake Additional Review for Oil and Gas Lease Sales in Colorado

The federal district court for the District of Colorado found that the U.S. Bureau of Land Management’s (BLM’s) 2018 lease sales in and around the Uinta Basin in northwestern Colorado did not comply with the National Environmental Policy Act and the Administrative Procedure Act. The court remanded to BLM without vacating the leases. The court found that BLM should have considered air modeling that became available before it made the 2018 decision and that BLM failed to consider whether the discovery of wilderness character in certain lands warranted a change in management priorities. The court did not address the complaint’s climate change-related allegations. Rocky Mountain Wild v. Haaland, No. 18-cv-02468 (D. Colo. Sept. 28, 2021).

Federal Court Allowed Louisiana to Intervene in Environmental Groups’ Challenge to Gulf of Mexico Lease Sale

The federal district court for the District of Columbia held that the State of Louisiana could intervene as of right in environmental organizations’ lawsuit challenging the Interior Department’s decision to hold an offshore oil and gas lease sale for portions of the Gulf of Mexico. The court found that there was “sufficient doubt” about the adequacy of the federal government’s representation of Louisiana’s interests, given the litigation between Louisiana and the federal government in the Western District of Louisiana concerning the Biden administration’s “pause” on federal oil and gas leasing. Friends of the Earth v. Haaland, No. 1:21-cv-02317 (D.D.C. Sept. 22, 2021).

Federal Court Said Greenpeace Lacked Standing for Claims that Walmart’s Marketing of Plastic Products as Recyclable Violated California Unfair Competition Law

The federal district court for the Northern District of California ruled that Greenpeace did not have standing to bring claims under California’s Unfair Competition Law related to Walmart’s sale of plastic and plastic-packaged products under its private label brands. Greenpeace alleged that Walmart advertised and marketed products and packaging made from plastics #3-7 or unidentified plastic as “recyclable” when they are not recyclable. Greenpeace alleged that consumers “concerned with the proliferation of plastic pollution” and its environmental impact—including methane emissions—actively seek products that are recyclable, and that Walmart’s representations were likely to deceive the public. In addition, Greenpeace alleged that Walmart violated California’s policy against misrepresenting the environmental attributes of products. The court found that none of Greenpeace’s allegations demonstrated that Greenpeace took action in reliance on the truth of Walmart’s representations and that Greenpeace therefore did not meet the Unfair Competition Law’s requirements for standing. The court said Greenpeace could file an amended complaint if it did so by October 15, 2021. Greenpeace, Inc. v. Walmart Inc., No. 21-cv-00754 (N.D. Cal. Sept. 20, 2021).

California Federal Court Declined to Stop Groundwater Pumping Program

The federal district court for the Eastern District of California denied a motion for a preliminary injunction barring the U.S. Bureau of Reclamation from implementing a program to incentivize groundwater pumping as an alternative to obtaining water from the Sacramento River. The court found that the plaintiffs failed to meet their burden of establishing irreparable harm and that they failed to show a likelihood of success on the merits, including on their claim that the defendants failed to take a hard look at the effects of the program’s greenhouse gas emissions. The court also concluded that allowing the program to go forward was in the public interest. The plaintiffs appealed the court’s decision. AquAlliance v. U.S. Bureau of Reclamation, No. 2:21-cv-01533 (E.D. Cal. Sept. 14, 2021).

Mississippi Federal Court Dismissed Claims Seeking Environmental Review of More Frequent Opening of Spillway

In two related lawsuits, the federal district court for the Southern District of Mississippi dismissed claims under the Administrative Procedure Act (APA) and the National Environmental Policy Act (NEPA) against the Mississippi River Commission (MRC) and the U.S. Army Corps of Engineers in connection with the operation of the Bonnet Carré Spillway, which is “designed to divert water from the Mississippi River into Lake Pontchartrain in an effort to prevent flooding in the city of New Orleans.” The plaintiffs alleged that the defendants failed to conduct an adequate environmental impact analysis and to supplement the analysis “to reflect the changed circumstances and additional impacts resulting from the greater and more damaging Mississippi River flooding and resulting operation” of the spillway. Over an 89-year period, the spillway had been opened 15 times, with six of the openings occurring in the past 10 years and 4 openings occurring between 2018 and 2020. The court concluded that the MRC did not qualify as an “agency” under the APA because it only had the authority to make recommendations, not to make decisions, and that the plaintiffs therefore could not bring claims against the MRC under the APA. The court also dismissed the APA and NEPA claims against the Corps, finding that some claims were time-barred (e.g., challenges to a 1976 environmental impact statement) and that because there was no remaining “major federal action” it lacked jurisdiction over the claim that supplementation was required. The court also found that it could not compel the Corps to open a separate spillway more frequently. Watson v. U.S. Army Corps of Engineers, No. 1:19-cv-00989 (S.D. Miss. Sept. 14, 2021); Harrison County v. Mississippi River Commission, No. 1:19-cv-00986 (S.D. Miss. Sept. 13, 2021).

Vermont Supreme Court Reversed Denial of Approval for Solar Facility

The Vermont Supreme Court reversed and remanded the Vermont Public Utility Commission’s (PUC’s) denial of a certificate of public good for construction of a 2.0 megawatt solar facility in the Town of Bennington. The court rejected “significant portions” of the PUC’s rationale for denial—including the PUC’s conclusions that the project would violate “clear community standards”—but rejected the argument that Vermont law required the PUC to balance beneficial greenhouse gas impacts against other factors in the analysis of aesthetic effects. In re Petition of Apple Hill Solar LLC, No. 2020-232 (Vt. Sept. 3, 2021).

D.C. Appellate Court Upheld Climate Protesters’ Convictions

The District of Columbia Court of Appeals affirmed two individuals’ convictions for crowding, obstructing, or incommoding a street after being warned to cease. A witness testified that the individuals were participating in a climate change protest directed at the Republican National Committee. The court held that provisions of D.C.’s First Amendment Assemblies Act on which the defendants relied did not apply to the Capitol Police. The provisions required the Metropolitan Police Department (MPD) to seek voluntary compliance when enforcing time, place, and manner restrictions and limited circumstances in which MPD could issue general orders to disperse. The appellate court also found that evidence was sufficient to support the convictions and rejected the argument that their convictions required proof of breach of the peace. Ochs v. District of Columbia, Nos. 19-CT-625 and 19-CT-648 (D.C. Sept. 2, 2021).

California Appellate Court Rejected Climate Change Claims in CEQA Challenge to Olympic Valley Resort

The California Court of Appeal rejected challenges to the analysis of the climate change impacts of a proposed resort in Olympic Valley but found certain other elements of the California Environmental Quality Act (CEQA) review for the project to be inadequate. Regarding the climate change analysis, the appellate court found that the County of Placer’s modification of the analysis in the final environmental impact report (EIR) in response to a California Supreme Court decision did not require recirculation of the EIR. The appellate court also rejected the argument that the County failed to reconsider climate change mitigation in light of the revised analysis in the final EIR. The court noted not only that the County had reconsidered mitigation measures but also that the project could no longer result in the emissions levels that might have warranted reconsideration of mitigation. The court found that the plaintiff forfeited two other climate change arguments. Sierra Watch v. County of Placer, No. C088130 (Cal. Ct. App. Aug. 24, 2021).

New York Court Denied Preliminary Injunction in Challenge to Renewable Energy Siting Regulations

A New York State Supreme Court denied a motion for a preliminary injunction barring the New York State Office of Renewable Energy Siting (ORES) from implementing regulations that set forth procedural and substantive requirements for permit applications for major renewable energy facilities. Under the Accelerated Renewable Energy Growth and Community Benefit Act, such facilities are exempt from the State Environmental Quality Review Act (SEQRA), and ORES has authority to waive local laws. The court found that there was little likelihood that the petitioners challenging the regulations—which included a number of towns and bird conservation organizations—would succeed on the merits of their claims that adoption of the regulations violated SEQRA. The court also found that the record did not support a finding of irreparable harm in the absence of specific project approvals and that the equities did not balance in the petitioners’ favor, “for it is manifest that development of major renewable energy facilities based on wind and solar resources to provide electrical generation is a reasoned means to combat climate change, and wholly compatible with the public interest to ‘protect the environment for the use and enjoyment of this and all future generations.’” Town of Copake v. New York State of Office of Renewable Energy Siting, No. 905502-21 (N.Y. Sup. Ct. Sept. 21, 2021).

Southern California Gas Settled Lawsuit Challenging California Energy Commission’s “Anti-Natural Gas Policy”

Southern California Gas Company (SoCalGas) and the California Energy Commission (CEC) agreed to settle a lawsuit in which SoCalGas contended that the CEC was unlawfully implementing a policy to eliminate use of natural gas. Details of the settlement were not available, but a CEC spokesperson said the CEC had not taken, and did not have plans to take, the steps SoCalGas sought in the lawsuit, which included preparation of certain new reports. Southern California Gas Co. v. California State Energy Resources Conservation and Development Commission, No. __ (Cal. Super. Ct. Aug. 26, 2021).

Vermont Court Said Attorney General Communications Under Climate Litigation Common Interest Agreements Were Shielded from Disclosure

In a lawsuit brought by Energy Policy Advocates, a Vermont Superior Court ordered the Vermont Attorney General to produce seven common interest agreements concerning “the general subject of combatting global warming in some fashion,” but concluded that communications related to the common interest agreements were attorney work product that was shielded from disclosure under Vermont’s Public Records Act. The common interest agreements were with other state attorneys general (and, in one case, with auto manufacturers) and related to automobile greenhouse gas standards, California’s cap-and-trade policy, climate change public nuisance litigation, potential litigation to compel action concerning greenhouse gas emissions, NEPA regulations, and oil and gas development in the Arctic. The court concluded that the agreements themselves had to be produced so that the State could use them to document the refusal to produce subsequent communications within the scope of the agreements. The court rejected the argument that the communications were not protected because the lawsuits might have a political component or motivation. Energy Policy Advocates v. Attorney General’s Office, No. 173-4-20 Wncv (Vt. Super. Ct. July 16, 2021).

NEW CASES, MOTIONS, AND OTHER FILINGS

Vermont Filed Consumer Protection Suit Against Oil and Gas Companies Alleging Deception over Climate Change

On September 14, 2021, Vermont filed a lawsuit against oil and gas companies under its Consumer Protection Act (VCPA). The lawsuit was filed in Vermont Superior Court and asserts that the defendants have misled Vermont consumers about the risks posed by their products, including the causal connection between their products and climate change, and have thereby denied Vermont consumers of the opportunity to make informed decisions about their fossil fuel purchases and consumption. The complaint alleges that the defendants took “extraordinary steps” to keep information about the connection between use of their products and climate change secret despite being “fully aware for decades of the causal link.” The state also contends that the defendants have in more recent years “sought to adjust to shifting public perception through their ‘greenwashing’ campaigns’” in which they “falsely hold themselves out as responsible stewards of the environment.” Vermont seeks a permanent injunction prohibiting the companies from engaging in unfair or deceptive acts and practices and requiring disclosure of fossil fuels’ role in climate change at every point of sale in the state. The state also seeks disgorgement of funds acquired or retained as a result of any unlawful practices, civil penalties of $10,000 for each violation of the VCPA, and investigative and litigation costs and fees. Vermont v. Exxon Mobil Corp., No. __ (Vt. Super. Ct., filed Sept. 14, 2021).

Second Circuit to Hear Oral Argument in Appeal of Remand Order in Connecticut Case Against Exxon; Supplemental Briefing Completed in Appeals of Remand Orders in Baltimore and Rhode Island Cases

In addition to the new case filed by Vermont and the voluntary dismissal of King County’s case (discussed above), the following developments have taken place over the past month in state and local government climate change cases against the fossil fuel industry.

  • The Second Circuit scheduled oral argument for October 5, 2021 on Exxon Mobil Corporation’s motion to stay the remand order in Connecticut’s case against the company. On September 21, Exxon filed its opening merits brief. Connecticut v. Exxon Mobil Corp., No. 21-1446 (2d Cir. Sept. 20, 2021).
  • Honolulu and Maui filed their answering brief in the Ninth Circuit urging the court to affirm the remand orders in their cases. They argued that none of the requirements for removal under the federal-officer removal statute were met, and that neither the Outer Continental Shelf Lands Act nor federal enclave jurisdiction provided a basis for federal jurisdiction. Six amicus briefs were filed in support of Honolulu and Maui. City & County of Honolulu, Nos. 21-15313, 21-15318 (9th Cir. Sept. 17, 2021).
  • The parties have submitted all of their supplemental briefs in fossil fuel companies’ appeal of the remand order in Rhode Island’s case. The First Circuit—which limited its review to the federal-officer removal statute when it initially heard the appeal—is considering whether any of the companies’ other grounds provide a basis for removal after the Supreme Court ruled in Baltimore’s case that courts of appeal have a broader scope of review of remand orders when federal-officer removal is one basis for removal. Rhode Island v. Shell Oil Products Co., No. 19-1818 (1st Cir.).
  • In Baltimore’s case, supplemental briefing on remand from the Supreme Court has also been completed in the Fourth Circuit, including the filing of five amicus briefs supporting affirmance of the district’s order remanding the case to state court. Mayor & City Council of Baltimore v. BP p.l.c., No. 19-1644 (4th Cir.).
  • Fossil fuel companies appealed the order remanding the City of Hoboken’s case to state court and asked the district court to stay the remand order pending appeal. A temporary stay of the remand order is currently in effect. City of Hoboken v. Exxon Mobil Corp., No. 2:20-cv-14243 (D.N.J.).

Petitioners Detailed Shortcomings in FERC’s Review of Alaska LNG Project’s Climate Impacts

Center for Biological Diversity and Sierra Club filed their opening brief in their lawsuit challenging the Federal Energy Regulatory Commission’s authorization of the Alaska LNG Project, which the organizations described as including a gas treatment plant, eight compressor stations, liquefaction facilities, a marine terminal, and an 807-mile pipeline. The organizations assert claims under the NEPA and the Natural Gas Act. Under NEPA, their arguments include that FERC failed to consider the significance of the project’s substantial direct greenhouse gas emissions and that FERC segmented the environmental review, obscuring the project’s full impacts on climate. The organizations also argued that because FERC violated NEPA, its determination under the Natural Gas Act that the project was in the public interest was also invalid. Center for Biological Diversity v. Federal Energy Regulatory Commission, No. 20-1379 (D.C. Cir. Sept. 13, 2021).

Plaintiffs Argued that Roadway Project Required Environmental Review, Including Assessment of Potential Impacts of Climate Change on the Project

Plaintiffs filed a motion for summary judgment in their case challenging the Bayfront Parkway Project, a roadway project in the City of Erie, Pennsylvania, which they argued did not meet requirements for a categorical exclusion under NEPA. The plaintiffs contended that the Pennsylvania Department of Transportation (PennDOT) failed to examine a number of potentially significant impacts, including impacts from climate change—both the project’s impact on climate change due to increased greenhouse gas emissions and the potential impact of climate change on the project. Regarding the impact of climate change on the project, the plaintiffs argued that PennDOT should have assessed the project and alternatives for impacts such as soil moisture levels affecting the structural integrity of roads and bridges, damage to culverts and roads during heavy precipitation events, the need for higher design standards to improve resiliency, and an evaluation of historic flooding events and impacts in the study area. National Association for the Advancement of Colored People v. Federal Highway Administration, No. 1:20-cv-00362 (W.D. Pa. Sept. 24, 2021).

Exxon Sought Dismissal of Shareholder Derivative Action Alleging Climate Change-Related Misconduct

Exxon Mobil Corporation and individual defendants (Exxon) moved to dismiss a shareholder derivative action in which the plaintiffs alleged misconduct related to Exxon’s use of and statements regarding proxy costs of carbon or greenhouse gas costs—including their use in the company’s asset impairment analyses and proved reserves estimates—as well as assertions that the company’s assets would be stranded due to governmental climate change policies. Exxon argued that the case should be dismissed because the company’s independent directors had determined in good faith after a reasonable inquiry that the shareholder derivative lawsuit was not in Exxon’s best interests. Exxon further argued that additional theories of wrongdoing raised in the plaintiffs’ recently filed consolidated complaint were procedurally improper because the plaintiffs had never asked Exxon’s board to investigate the allegations. Exxon said the plaintiffs had added the new theories—which included allegations of misrepresentation of the environmental benefits of the company’s products and “greenwashing campaigns” about the company’s steps to mitigate climate change—in reliance on theories in an action filed by the Massachusetts Attorney General in October 2019 and after a New York court “discredited” the plaintiffs’ core allegations in a December 2019 decision dismissing the New York Attorney General’s fraud action against Exxon Mobil Corporation. In re Exxon Mobil Corp. Derivative Litigation, No. 3:19-cv-1067 (N.D. Tex. Sept. 24, 2021).

Facebook and Fact-Checkers Sued for Defamation for Labels Applied to Climate Change Videos

The journalist John Stossel, who currently publishes weekly news videos on social media, filed a defamation lawsuit against Facebook, Inc. and two French non-profit organizations that provide fact-checking services to Facebook. Stossel alleged that Facebook on two occasions placed labels over videos concerning climate change that mischaracterized the content of statements in the videos. He alleged that on one of these occasions the defendants falsely attributed to him a statement that climate change does not cause wildfires, and that on the second occasion a “Partly False Information” label was affixed to a video in which Stossel questioned claims made by people he referred to “environmental alarmists.” Stossel asserted that the defendants’ actions injured him in his profession and occupation, and that the defendants acted with malice and that Facebook acted with reckless disregard of the truth or falsity of the statements on the labels. Stossel requested injunctive and declaratory relief; general, special, and compensatory damages to make him whole for actual damages and reputational damages (estimated to exceed $1 million); exemplary and punitive damages (estimated to exceed $1 million); and costs of suit. Stossel v. Facebook, Inc., No. 5:21-cv-07385 (N.D. Cal., filed Sept. 22, 2021).

Organizations Cited Failure to Consider Climate Impacts on Protected Species in Challenge to Approvals of Plans for California Desert Conservation Area

Center for Biological Diversity and five other organizations filed a lawsuit in the federal district court for the Northern District of California asserting that federal defendants failed to comply with NEPA, the Federal Land Policy and Management Act, and the Endangered Species Act in their management of the West Mojave Planning Area of the California Desert Conservation Area. The actions challenged by the plaintiffs included adoption of the “Route Network Project” that increased the number of miles designated for off-highway vehicle­ use and approval of continued livestock grazing within Desert Tortoise critical habitat. The plaintiffs’ allegations included that the U.S. Fish and Wildlife Service incompletely assessed cumulative effects, especially the impacts of climate change, in a 2015 biological assessment, and that a 2019 biological opinion failed to accurately assess whether the action, taken together with cumulative effects (including climate change), was likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat. The plaintiffs said this assessment should have included a “tipping point analysis.” They also alleged a failure to utilize “the best available scientific and commercial data to assess the current status and trend of the species in the face of climate change.” Center for Biological Diversity v. U.S. Bureau of Land Management, No. 3:21-cv-7171 (N.D. Cal., filed Sept. 16, 2021).

Groups Said TVA Failed to “Meaningfully Respond” to Petition Requesting that It Curtail Payments to Third-Party Organizations that Opposed Greenhouse Gas Regulations

Center for Biological Diversity and five other organizations filed a lawsuit in the federal district court for the Eastern District of Tennessee challenging the Tennessee Valley Authority’s (TVA’s) response to their petition requesting that TVA adopt regulations limiting its ability to pay funds to third-party organizations such as trade associations and industry groups that the plaintiffs allege work against the interests of TVA ratepayers. The plaintiffs alleged that TVA had paid certain “Utility Regulatory Groups” millions of dollars for advocacy work and that the groups’ actions included opposition to the U.S. Environmental Protection Agency’s authority to regulate greenhouse gas emissions as well as opposition to specific greenhouse gas emission regulations. The plaintiffs asserted that TVA’s response to their petition violated the Administrative Procedure Act because it failed to “meaningfully respond” to the petition and because its delay in resolving the matters raised by the petition amounted to action unreasonably delayed or withheld. Center for Biological Diversity v. Tennessee Valley Authority, No. 3:21-cv-00319 (E.D. Tenn., filed Sept. 9, 2021).

Federal Government Sought Final Judgment Against Organizational Plaintiff in Juliana

After the organization Earth Guardians declined to join other plaintiffs in a motion to file an amended complaint in Juliana v. United States, the federal government filed a motion requesting entry of judgment against Earth Guardians. The government argued that because the Ninth Circuit had ordered that claims of all plaintiffs be dismissed and because Earth Guardians no longer was part of the plaintiffs’ efforts to amend the complaint, Earth Guardians’ claims should be dismissed for lack of standing. The plaintiffs opposed the motion, arguing that instead Earth Guardians should be dropped as a plaintiff, at its request, pursuant to Rule 21. The plaintiffs asserted that the defendants’ motion “appears to be part of a broader strategy to set up another early appeal or review by way of mandamus in connection with the pending Motion to Amend.” They contended that the court should issue “one final judgment at the conclusion of the case to avoid any further unnecessary early appeals.” Juliana v. United States, No. 6:15-cv-01517 (D. Or. Sept. 9, 2021).

Class Action Filed Against Electricity Provider for Damages Sustained in Louisiana During and After Hurricane Ida

Property owners, lessees, and occupants of four parishes in Louisiana filed a class action in Louisiana Civil District Court seeking damages from Entergy Corporation and related defendants for damages sustained as a result of the “foreseeable failure” of Entergy’s distribution and transmission equipment and systems during Hurricane Ida. The plaintiffs alleged that the failure had occurred “despite evidence which demonstrated the weakness and perilous condition of their equipment and systems which was well known to Entergy.” The plaintiffs also alleged that Entergy “has become aware that the climate of the world (including southeast Louisiana) is changing” and that Louisiana was experiencing more hurricanes, other severe tropical storms, and periods of heat and flooding. They contended that studies, including a 2007 “Hardening Study,” had put Entergy on notice of the deficiencies in its systems but that Entergy had failed to take action in response and had cut funding for operations and maintenance expenses. The plaintiffs asserted claims of negligence and strict liability, as well as breaches of express and implied contracts. Stewart v. Entergy Corp., No. 2021-07365 (La. Dist. Ct., filed Sept. 18, 2021).

Exxon and Texas Governor Argued that Texas Supreme Court Should Hear Case Concerning Jurisdiction over California Municipalities

Exxon Mobil Corporation filed a brief in the Texas Supreme Court arguing that the court should review the decision of an intermediate appellate court that held that Texas courts did not have personal jurisdiction over California municipalities and municipal officials and an attorney who originally represented San Francisco and Oakland in their climate lawsuits against fossil fuel companies. Exxon had filed a petition seeking pre-suit discovery against these parties to determine whether their lawsuits were “baseless and brought in bad faith as a pretext to suppress the Texas energy sector’s Texas-based speech and associational activities regarding climate change and to gain access to documents that Exxon keeps in Texas.” Exxon’s arguments included that the Texas Supreme Court should hear the case to confirm that the municipalities’ lawsuits were aimed at chilling speech by the Texas energy sector on climate change and that this constituted meaningful contacts with the Texas forum. Texas Governor Greg Abbott submitted a letter brief as amicus curiae in support of granting review, writing that “[w]hen out-of-state officials try to project their power across our border, as respondents have done by broadly targeting the speech of an industry crucial to Texas, they cannot use personal jurisdiction to scamper out of our courts and retreat across state lines.” Exxon Mobil Corp. v. City of San Francisco, No. 20-0558 (Tex. Sept. 10, 2021).

Environmental Groups Filed Suit Against Local Clean Air Agencies in Washington

Environmental groups filed a lawsuit in Washington Superior Court alleging that local clean air agencies were unlawfully shifting decision-making authority for new source approval from their boards of directors to technical staff and treating such approvals as ministerial decisions. The plaintiffs alleged that the effect of these actions was to undermine the Washington State Clean Air Act’s “ability to protect the public health of Washington residents and the State’s ability to achieve greenhouse gas (GHG) emissions reduction targets.” 350 Seattle v. Puget Sound Clean Air Agency, No. 21-2-09958-7 SEA (Wash. Super. Ct., filed July 28, 2021).

HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART

ICSID Found Colombia in Breach of the FTA for Delays in Delimiting the Páramos Ecosystem, Affecting Eco Oro’s Mining Concession

On September 9, 2021, the International Centre for Settlement of Investment Disputes found Colombia to be in breach of the Free Trade Agreement and the Canadian mining company Eco Oro to be entitled to damages for a series of regulatory measures undertaken by the government to protect the páramo ecosystem, which is essential in carbon sequestration. The tribunal decided that there was no breach of Article 811 (relating to expropriation) as the regulatory measures protected a legitimate public welfare objective and were adopted in good faith. However, the tribunal found Colombia to be in breach of Article 805 (relating to the customary international law minimum standard of treatment of aliens) given the government’s delay in delimiting the Santurbán Páramo and its failure to comply with constitutional obligations to protect the ecosystem at the time of the company’s investment. The company had legitimate expectations to undertake the mining exploitation activities in its concession. The tribunal found Colombia’s conduct to be arbitrary and disproportionate, damaging Eco Oro without serving any apparent purpose. The tribunal concluded that Eco Oro is entitled to damages, which will be decided on a later date upon further input from the parties. Eco Oro Minerals Corp. v. Republic of Colombia (International Centre for Settlement of Investment Disputes).

Precautionary Measures Granted in Brazilian Case Requiring Company to Assess Climate Damages

On August 31, 2021, a court in Rio Grande do Sul partially granted precautionary measures in a case related to an open-pit coal mining project. Precautionary measures can be exceptionally granted when there is a serious and urgent situation presenting risk of irreparable harm. In particular, the court suspended the permitting procedure of the Nova Seival coal-fired power plant until irregularities in the environmental impact assessment are addressed and included specific requirements in the terms of reference of thermoelectric power plants in the state of Rio Grande do Sul related to climate change, the need for a strategic environmental evaluation, and potential risks to public health. The requirements to assess potential climate change damages are grounded in the National Policy of Climate Change and the State Law No. 13.594/2010 (state policy on climate change) in the terms of reference of permitting procedures of thermal power stations in the state of Rio Grande do Sul. Instituto Preservar et. al. v. Copelmi Mineração Ltda. and IBAMA (9th Federal Court of Rio Grande do Sul).

Ministry of Environment Appealed Federal Court of Australia’s Decision in Sharma and Others v. Minister for the Environment

On September 13, 2021, the Australia Ministry of Environment filed an appeal questioning a judge’s finding from July 2021 that the Minister owes a duty of care to avoid causing personal injury to children related to anthropogenic climate change. The appeal is based on the separation of powers and the argument that the Minister’s decision is a matter of policy and subject to discretion. The regulation of greenhouse emissions is better suited for the Executive, and no novel duty of care should be recognized. The appeal also questioned whether the approved project would cause a net increase in global greenhouse gas emissions and the reversed onus of proof in approaching this issue. Sharma and Others v. Minister for the Environment (Federal Court of Australia).

Hearing Held in Offshore Drilling Case Against the UK Government

In October 2020, Greenpeace brought a case against the U.K. government for awarding BP plc a permit to drill for 30 million barrels of oil in the North Sea. Greenpeace is challenging the permit on the grounds that the government allegedly failed (i) its legal duty to assess climate impacts, since it only weighed the effects of emissions from production, and not from the consumption of the oil extracted; (ii) to comply with public consultation requirements; and (iii) to assess how much flaring (the controlled burning of natural gas) would take place as a result of the permit being granted. Greenpeace asked the court to overturn the government’s decision to grant BP a permit for the Vorlich oil field. A hearing was held in September 2021. Greenpeace v. United Kingdom (Scotland’s Court of Sessions).

Environment Victoria Filed Case Against the EPA for Lack of Stringent Limits on Greenhouse Gas Emissions on Coal Power Plants

On September 20, 2021, Environment Victoria launched a legal action against the Environment Protection Authority (EPA) and AGL Energy, EnergyAustralia, and Alinta, owners of Victoria’s three remaining coal-burning power stations. The plaintiffs question EPA’s review of three power station licenses, which lacked more stringent limits on greenhouse gas emissions. Environment Victoria argues that the EPA has failed to require best practice management of toxic emissions, take proper account of the environmental principles in the Environment Protection Act, and consider key sections of the 2017 Climate Change Act. Environment Victoria asks the court to revoke, amend, and attach certain conditions to the licenses. Environment Victoria v. EPA et al. (Victoria Supreme Court).

Drivers Questioned a New Tax Posed on Electric Vehicle Drivers

On September 16, 2021, two electric vehicle drivers, Mr. Christopher Vanderstock and Ms. Kathleen Davis, brought a claim in the High Court of Australia against the State of Victoria to challenge the Zero and Low Emission Vehicle Distance-based Charge Act 2021 (Vic). The ZLEV Act, adopted in July 2021, introduces a new tax that charges electric vehicle drivers between 2 and 2.5 cents for every kilometer they drive. In addition, drivers of electric vehicles are required to submit annual odometer readings to state authorities from which an annual charge is calculated. The plaintiffs argue that the State of Victoria lacks the constitutional authority to impose such a charge based on Section 90 of the Commonwealth Constitution, which, they claim reserves the exclusive power to levy such charges for the Commonwealth. Vanderstock & Anor v. The State of Victoria (High Court of Australia).

Student Files a Complaint at Ad Standards on HSBC's Great Barrier Reed Ad

On September 16, 2021, a 17-year-old student, Ava Shearer, filed a complaint at Ad Standards—an Australian organization that manages consumer and competitor complaints concerning the country’s self-regulatory advertising codes—against HSBC for a marketing campaign touting its support for protection of the Great Barrier Reef while funding fossil fuel operations. Ms. Shearer claims that HSBC’s ads, which claim to be investing in the reef’s future and “reef credits” to support water quality, are contradicted by its financial links to fossil fuel projects that negatively contribute to the climate crisis. Ad Standards will assess the claim and potentially initiate a case against HSBC. The Environmental Claims Code covers truthful and factual presentation, genuine benefit to the environment, and substantiation of claims. Complaint to Ad Standards on HSBC’s Great Barrier Reef Ad (Ad Standards Australia).

Shareholders Sought Internal Documents Related to Project Potentially Not in Line with the Goals of the Paris Agreement

On August 26, 2021, Guy and Kim Abrahams as trustees for the Abrahams Family Trust, shareholders in the Commonwealth Bank of Australia (CBA), filed an application in the Federal Court of Australia, seeking access to internal documents under the Corporations Act 2001 (Cth). The documents relate to the bank’s reported involvement with several projects including a gas pipeline in the US, a gas project in Queensland, a gas field, and an oil field, among other projects that potentially infringe the bank’s Environmental and Social Framework (E&S Framework) and Environmental and Social Policy (E&S Policy). In particular, the E&S Framework and the E&S Policy require that the bank carries out an assessment of the environmental, social, and economic impacts of the projects and whether the projects are in line with the goals of the Paris Agreement. Abrahams v. Commonwealth Bank of Australia (2021) (Federal Court of Australia).

Amicus Brief Filed in Union of Swiss Senior Women Case

On September 21, 2021, the International Commission of Jurists and the European Network of National Human Rights Institutions submitted third-party interventions to the European Court of Human Rights in the suit brought by a group of senior women asserting that Switzerland’s inadequate climate policies violate the women’s right to life and health under Articles 2 and 8 of the European Convention on Human Rights (ECHR), as well as other violations of the ECHR. More amicus briefs are expected to be submitted in the coming days. Union of Swiss Senior Women for Climate Protection v. Swiss Federal Council and Others (European Court of Human Rights).

NSW Court of Appeal Dismissed KEPCO’s Appeal and Maintained the Independent Planning Commission’s Decision to Deny an Application for the Bylong Valley Coal Mine

On August 25, 2021, the New South Wales Court of Appeals dismissed an appeal by KEPCO, a major Korean utility company, of a decision upholding the rejection by the Independent Planning Commission of New South Wales of an application to build the Bylong Valley coal mine. The Court found that the Commission had adequately found that KEPCO had not proposed to minimize greenhouse gas emissions and that the State Climate Change Policy concerning greenhouse gas emissions was applicable. KEPCO Bylong Australia v. Independent Planning Commission and Bylong Valley Protection Alliance (New South Wales Court of Appeals).