October 2022 Updates to the Climate Case Charts
Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts. If you know of any cases we have missed, please email us at [email protected].
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #163:
FEATURED CASES
Connecticut Federal Court Largely Denied Motion to Dismiss Climate Adaptation Case Against Shell Oil Defendants
The federal district court for the District of Connecticut allowed Conservation Law Foundation (CLF) to proceed with claims under the Clean Water Act and the Resource Conservation and Recovery Act in its citizen suit alleging that Shell Oil Company and other defendants failed to prepare a bulk storage and fuel terminal in New Haven for the impacts of climate change. The court rejected the defendants’ argument that CLF did not have standing, finding that the complaint sufficiently alleged “near-term harms from foreseeable weather events” that were “not purely theoretical” and that were “fairly traceable” to defendants. The court found that the allegations established that CLF had standing to seek penalties for ongoing violations that could continue if undeterred. The court further found that the complaint alleged facts sufficient to assert Clean Water Act adaptation claims and also declined to dismiss CLF’s RCRA imminent and substantial endangerment claim. The court dismissed, however, two RCRA regulatory violation claims and also dismissed all claims against a former owner and operator except for the RCRA endangerment claim. The court declined to dismiss the non-owner/operator defendants, finding that “at this early stage” the complaint stated a plausible claim for direct liability. Conservation Law Foundation, Inc. v. Shell Oil Co., No. 3:21-cv-00933 (D. Conn. Sept. 16, 2022)
Standing Allegations Found Inadequate in Climate Adaptation Case Concerning Gulf Oil New Haven Petroleum Storage Terminal
The federal district court for the District of Connecticut agreed with defendant Gulf Oil LP (Gulf) that Conservation Law Foundation (CLF) failed to allege an injury in fact for purposes of standing in CLF’s citizen suit charging that Gulf failed to prepare its bulk petroleum storage facility in New Haven, Connecticut for the impacts of climate change. The court found that “although the complaint discusses the worsening impacts of climate change on New Haven at great length, Plaintiff does not articulate whether or how such impacts will imminently lead to the discharge of pollutants from Defendant’s Terminal.” The court distinguished the allegations in similar lawsuits in which CLF established standing, finding that the allegations in the other cases concerned not “just the likely future occurrence of major and foreseeable weather events” but “how such weather events would result in the discharge of pollutants, thereby validating Plaintiff’s theory of increased risk of exposure to such pollutants as its near-term injury.” The court also distinguished the other cases based on their allegations that past severe storms had caused pollutant discharges. The court dismissed nine Clean Water Act counts and all Resource Conservation and Recovery Act counts without prejudice, and granted CLF leave to file an amended complaint to address the deficiencies in its standing allegations. Conservation Law Foundation, Inc. v. Gulf Oil LP, No. 3:21-cv-00932 (D. Conn. Sept. 29, 2022)
DECISIONS AND SETTLEMENTS
Third Circuit Denied Rehearing of Affirmance of Remand Orders in Hoboken and Delaware Climate Cases
On September 30, 2022, the Third Circuit Court of Appeals denied fossil fuel industry defendants’ petition for rehearing of the court’s decision affirming the remand orders in climate change cases brought by the City of Hoboken and the State of Delaware. The defendants’ petition for rehearing en banc, submitted on September 14, contended that the Third Circuit panel erred by concluding that cases “that are necessarily federal by virtue of federal common law derived from the Constitution’s structure” were not removable. The defendants argued that the panel’s decision misinterpreted Third Circuit precedent, “deepened” a circuit split, and was at odds with the position of the United States and “the teachings of the Supreme Court.” The petition for rehearing also contended that that the panel erred in giving effect to Hoboken’s and Delaware’s “artful disclaimers” that the defendants said were “designed to evade federal jurisdiction.” After the Third Circuit denied the rehearing petition, the defendants filed a motion to stay the mandates. City of Hoboken v. Chevron Corp., No. 21-2728 (3d Cir. Sept. 30, 2022); Delaware v. BP America Inc., No. 22-1096 (3d Cir. Sept. 30, 2022)
Tenth Circuit Said District Court Erred in Dismissing Challenge to Dam Permit
The Tenth Circuit Court of Appeals ruled that a federal district court erred when it concluded that the Federal Power Act vested the courts of appeals with exclusive jurisdiction over a challenge to a U.S. Army Corps of Engineers permit that was required for modification of a dam project licensed by the Federal Energy Regulatory Commission. The environmental groups challenging the Corps permit contended, among other things, that the Corps violated the National Environmental Policy Act by failing to fully consider the impacts of climate change. The Tenth Circuit reversed the district court’s dismissal of the case and remanded for further proceedings. Save the Colorado v. Spellmon, No. 21-1155 (10th Cir. Sept. 30, 2022)
Ninth Circuit Said Environmental Groups Could Not Bring New Challenge to Bull Trout Recovery Plan
The Ninth Circuit Court of Appeals held that the doctrine of claim preclusion barred environmental groups from challenging the U.S. Fish and Wildlife Service’s 2015 Bull Trout Recovery Plan in the District of Montana. The Ninth Circuit found that the plaintiffs “must bear the consequences of their strategic choices” in earlier litigation in the District of Oregon, where they initially decided not to amend their complaint to fix jurisdictional deficiencies identified by the district court and instead unsuccessfully appealed, after which they filed an unsuccessful motion to amend. The plaintiffs in the District of Oregon litigation, joined by one additional plaintiff, then filed a new lawsuit in the District of Montana to challenge the recovery plan for failing to incorporate recovery criteria that satisfied Endangered Species Act requirements. The groups’ complaint alleged that climate change would reduce bull trout habitat and stress existing populations. The Ninth Circuit noted that both the claim identity and privity elements of claim preclusion were met and further found that there was a final judgment in the District of Oregon. Save the Bull Trout v. Williams, No. 21-35480 (9th Cir. Sept. 28, 2022)
Ninth Circuit Stayed District Court’s Vacatur of 2019 Endangered Species Act Regulations
The Ninth Circuit Court of Appeals stayed a district court’s order that vacated 2019 amendments to the Endangered Species Act regulations, including provisions that plaintiffs alleged would limit consideration of the effects of climate change and constrain designation of critical habitat for species whose current habitat is threatened by climate change. The Ninth Circuit stated that it was “apparent” that the district court “clearly erred” by vacating the amendments without ruling on their legal validity. In re Washington Cattlemen’s Association, No. 22-70194 (9th Cir. Sept. 21, 2022)
Second Circuit Rejected New York and Town of Southold Challenges to Dredging Disposal Site in Long Island Sound
The Second Circuit Court of Appeals affirmed a district court’s conclusion that the U.S. Environmental Protection Agency (EPA) did not violate the Coastal Zone Management Act (CZMA) when the agency designated a new waste disposal site for dredging byproducts in Long Island Sound. The Second Circuit first concluded that the district court properly applied the Administrative Procedure Act’s deferential arbitrary-and-capricious standard for judicial review of the CZMA claim. The Second Circuit further found that EPA adequately justified its determination under the CZMA that designation of the disposal site was consistent with the Long Island Sound Coastal Management Program authored by New York State and the Town of Southold Local Waterfront Revitalization Program. Among the objections that the Second Circuit rejected was New York’s contention that a new dredging site was not needed. New York’s argument included that EPA’s estimate of how much dredged material could require disposal should not have included 15.5 million cubic yards of dredged sand that might be used for beach renourishment projects. New York had alleged in its complaint that sea level rise and increasingly intense storm events would increase demand for such projects. The Second Circuit also ruled that the Town of Southold could not assert its National Environmental Policy Act claim on appeal after it abandoned the claim in its summary judgment briefing. Town of Southold v. Wheeler, Nos. 20-3188, 20-3189 (2d Cir. Sept. 2, 2022)
Federal Court Dismissed Lawsuit Seeking Congressional Records on Climate Change Hearings
The federal district court for the District of Columbia dismissed a lawsuit seeking to compel, under the common law right of access, the disclosure of emails and recordings related to the House Committee on Oversight and Reform’s investigation of energy companies and their business practices and research on fossil fuels. The court concluded that the request sought records “directly related” to preparation for hearings on climate legislation, that compelling disclosure would impede Congress’s investigatory function, and that the Speech or Debate Clause therefore prohibited the plaintiff’s inquiry. Schilling v. Pelosi, No. 1:22-cv-00162 (D.D.C. Oct. 3, 2022)
Montana Federal Court Said Agency Must Quantify Coal Mine Expansion’s Greenhouse Gas Impacts but Did Not Have to Use Social Cost of Carbon
The federal district court for the District of Montana adopted a magistrate judge’s recommendation that the court find that the Office of Surface Mining Reclamation and Enforcement (OSM) must quantify the socioeconomic costs of the greenhouse gas emissions of a coal mine expansion because OSM had quantified the expansion’s economic benefits. The court rejected, however, the magistrate judge’s conclusion that OSM was required to use the social cost of carbon to quantify those costs. The court cited the Ninth Circuit’s April 2022 decision in 350 Montana v. Haaland holding that use of the social cost of carbon was not required. In this case, the district court found that OSM provided an acceptable rationale for not using the social cost of carbon—that it was too uncertain to provide value and was not designed for project-level analysis. The court reminded OSM, however, “of its obligation to provide high quality, accurate scientific analysis on the economic costs” of greenhouse gases from the expansion on remand. Regarding other environmental review issues, the court agreed with the magistrate judge that OSM failed to take the required hard look at cumulative impacts to surface water and indirect effects on water withdrawals from the Yellowstone River and that OSM’s alternatives analysis violated the National Environmental Policy Act. Montana Environmental Information Center v. Haaland, No. 19-cv-130 (D. Mont. Sept. 30, 2022)
Federal Court Rejected Challenge to Biden EPA’s Reconstitution of Clean Air Scientific Advisory Committee
The federal district court for the District of Columbia found that the U.S. Environmental Protection Agency (EPA) did not violate the Federal Advisory Committee Act or the Administrative Procedure Act when it reconstituted the Clean Air Scientific Advisory Committee (CASAC) in 2021. The plaintiffs alleged, “essentially, that the EPA has unlawfully purged [the CASAC and the Science Advisory Board] to allow the Biden administration to pursue policies on climate change the committees’ previous membership had thwarted.” The court concluded that the Clean Air Act did not require an industry representative on the CASAC, given its technical and scientific mandate. The court also found that there were safeguards in place that were sufficient to avoid inappropriate influence. In addition, the court rejected the plaintiffs’ contention that the reconstitution of the CASAC was arbitrary and capricious. Young v. EPA, No. 1:21-cv-02623 (D.D.C. Sept. 30, 2022)
Federal Court Sent Annapolis and Anne Arundel County Climate Cases Back to State Court
The federal district court for the District of Maryland granted the City of Annapolis’s and Anne Arundel County’s motions to remand to state court their climate change cases against fossil fuel industry defendants. The court found that the Fourth Circuit’s 2022 opinion affirming the remand order in Baltimore’s climate case foreclosed all but two of the defendants’ arguments for federal jurisdiction in these two cases. Regarding the first remaining argument, the court found that the defendants’ “materially expanded evidentiary record” in support of federal-officer removal did not address the deficiency the Fourth Circuit identified in Baltimore’s case—that the record did not establish that the defendants’ alleged concealment of the climate harms of fossil fuels was related to the defendants’ purported federally authorized actions. In their second remaining argument, the defendants contended that the case satisfied the requirements for Grable jurisdiction because the case necessarily implicated First Amendment concerns by targeting speech on matters of “public concern.” The district court declined to extend the “slim category” of Grable jurisdiction cases to include state tort claims involving speech on matters of public concern, finding that “[s]uch an expansive holding would raise federalism concerns and counter the mandate for federal courts to ‘strictly construe’ removal statutes.” The district court also denied the defendants’ motions to stay the proceedings pending the Supreme Court’s resolution of the Baltimore case (where a petition for writ of certiorari seeking review of the Fourth Circuit’s affirmance of the remand order was anticipated). The court stayed execution of the remand order for 30 days but said it was not amenable to a further stay on the present record. The parties were directed to establish a briefing schedule for any request for an additional stay pending appeal that would allow the court a week to rule on the request before the 30-day stay expired. City of Annapolis v. BP p.l.c., No. 21-cv-00772 (D. Md. Sept. 29, 2022); Anne Arundel County v. BP p.l.c., No. 1:21-cv-01323 (D. Md. Sept. 29, 2022)
Federal Court Said Sovereign Immunity Barred New Mexico Water Users’ Action
The federal district court for the District of New Mexico dismissed residential water users’ lawsuit seeking federal court intervention to correct state court rulings that the plaintiffs contended were at odds with federal water law. The complaint’s allegations included that adjudication of claims to interstate rivers must consider factors that include climate change. The court granted the state, federal, and Navajo Nation defendants’ motions to dismiss based on sovereign immunity. Clark v. Haaland, No. 21-cv-1091 (D.N.M. Sept. 28, 2022)
North Carolina Federal Court Said Elimination of Seasonal Dredging Restriction Was Arbitrary and Capricious
A federal district court in North Carolina found that the U.S. Army Corps of Engineers acted arbitrarily and capriciously when it eliminated seasonal restrictions on “hopper dredging” in harbors at Wilmington and Morehead City. The court found that the Corps’ evaluation of certain National Environmental Policy Act factors was inadequate, including consideration of the extent to which the action would adversely affect endangered or threatened sea turtles and sturgeon and consideration of the degree to which impacts on the environment were highly uncertain. The court did not directly address the complaint’s allegations that the Corps failed to address climate change impacts such as “the compounding impacts climate change will have on species, water quality, water temperatures, or the affected project area.” The court vacated the Corps’ decision and remanded for further consideration. Cape Fear River Watch v. U.S. Army Corps of Engineers, No. 7:21-cv-138 (E.D.N.C. Sept. 26, 2022)
Department of Energy Agreed to Timelines for Energy Conservation Standards for 20 Product Categories
The federal district court for the Southern District of New York so-ordered a consent decree resolving lawsuits in which nongovernmental organizations and states alleged that the U.S. Department of Energy (DOE) had failed to publish final rules concerning energy conservation standards for 25 categories of consumer products and industrial equipment by deadlines specified by the Energy Policy and Conservation Act. Since the plaintiffs filed their lawsuits, DOE had promulgated final rules for five categories of products. The consent decree established deadlines that DOE agreed to meet for the remaining 20 product categories, which include residential clothes dryers and washers, water heaters, and dishwashers. The earliest deadline specified in the consent decree is June 30, 2023; the latest is November 30, 2024. Natural Resources Defense Council v. Granholm, No. 1:20-cv-09127 (S.D.N.Y. Sept. 20, 2022)
Parties Agreed to Settlement in Clean Water Act Citizen Suit Concerning Sewage Overflows in Henrico County Sewer System
Two environmental groups and the County of Henrico reached a settlement to resolve the groups’ Clean Water Act citizen suit concerning alleged violations at the Henrico County Water Reclamation Facility. In April 2022, the federal district court for the Eastern District of Virginia denied in part the County’s motion to dismiss, finding that there were “reasonable doubts as to future compliance,” including because of trends such as more frequent severe weather events and increased amounts of precipitation. The settlement agreement obligated the parties to make a joint request to the Virginia Department of Environmental Quality (DEQ) to add certain requirements to a December 2021 consent order that was intended to resolve sanitary sewer overflow violations from the sewage collection system. If DEQ declines to modify the consent order, the parties will confer regarding the status of the litigation. The court stayed all proceedings in the case until December 31, 2022. Chesapeake Bay Foundation, Inc. v. County of Henrico, No. 3:21-cv-00752 (E.D. Va. Sept. 19, 2022)
Tennessee Federal Court Dismissed Lawsuit Regarding Petition to Stop TVA Funding of Groups that Lobby Against Environmental Protections
A federal district court in Tennessee dismissed a lawsuit brought by Center for Biological Diversity and other organizations to compel the Tennessee Valley Authority (TVA) to respond to a petition requesting that TVA curtail financial support for third-party organizations that engage in lobbying and other advocacy in opposition to environmental protections. The court found that the plaintiffs failed to establish either organizational or associational standing. Center for Biological Diversity v. Tennessee Valley Authority, No. 3:21-cv-319 (E.D. Tenn. Sept. 12, 2022)
Federal Court Concluded that Biological Opinion for Lobster Fisheries Adequately Addressed Evidence of Right Whale’s Northward Migration
The federal district court for the District of Columbia rejected a challenge by two lobstering associations, a lobstermen’s union, and the State of Maine to the National Marine Fisheries Service’s (NMFS’s) biological opinion that concluded that operation of federal lobster fisheries would not jeopardize the North Atlantic right whale. The plaintiffs alleged that the biological opinion overstated risks posed to the right whale and overregulated the lobstering industry. The court found that the biological opinion and related actions were not arbitrary and capricious. Among the points addressed in the decision was the plaintiffs’ contention that NMFS did not take into account evidence that climate change was causing right whales to spend more time in Canadian waters. The court “acknowledge[d] that NMFS could have more comprehensively addressed” this evidence, also noting that “[i]f new data continue supporting this trend, the agency may in the future need to either update its modeling or say more about why it has not.” However, at this juncture, the court found that NMFS “considered the relevant data and offered a rational and peer-reviewed explanation for its approach.” Maine Lobstermen’s Association, Inc. v. National Marine Fisheries Service, No. 1:21-cv-02509 (D.D.C. Sept. 8, 2022)
California Federal Court Dismissed Defamation Case Against Climate Scientist Fact Checker
The federal district court for the Eastern District of California granted a climate scientist’s motion to dismiss a defamation action brought by a plaintiff who published a documentary on YouTube and Facebook promoting his belief that there “has been an intentional effort to dim direct sunlight through aircraft-dispersed particles.” In a third-party fact checker’s review of the documentary, the defendant climate scientist referred to the documentary’s claims as “pure fantasy.” The court concluded it did not have personal jurisdiction over the defendant, who was a senior research associate at Cornell University in New York. The court also granted the defendant’s special motion to strike under California’s anti-SLAPP (Strategic Lawsuit Against Public Participation) law and awarded the defendant fees and costs. Wigington v. MacMartin, No. 2:21-cv-02355 (E.D. Cal. Aug. 31, 2022)
Federal Court Said State Department Properly Withheld Communications Concerning Public Engagement About Paris Agreement
In a Freedom of Information Act lawsuit pending since 2017, the federal district court for the District of Columbia found that the U.S. Department of State properly withheld 34 records regarding communications about how to engage with the public about the legal form of the Paris Agreement. The decision concerned three categories of documents: records involving interactions with the public through the media (including emails about how to respond to a reporter’s questions), records involving interactions with the public through elected representatives (including documents reflecting discussion of how to respond to questions from members of Congress), and drafts of press guidance, talking points, and other similar materials. Competitive Enterprise Institute v. U.S. Department of State, No. 1:17-cv-02032 (D.D.C. Aug. 10, 2022)
Minnesota Supreme Court Reversed Rulings that Would Have Required Attorney General’s Disclosure of Climate Litigation Documents
The Minnesota Supreme Court reversed portions of a Minnesota Court of Appeals decision that had rejected certain reasons cited by the Minnesota Attorney General for withholding documents requested under the Minnesota Government Data Practices Act regarding the Attorney General’s retention of special assistant attorneys general to pursue multistate climate change litigation. First, the Supreme Court formally recognized the common-interest doctrine and said it applies when two or more parties represented by separate lawyers have a common legal interest in a litigated or non-litigated matter, the parties agree to exchange information regarding the matter, and they make an otherwise privileged communication in furtherance of formulating a joint legal strategy. The Supreme Court also held that the doctrine prevented waiver of both attorney-client privilege and the work-product doctrine. Second, the Supreme Court said the attorney-client privilege extended to public law offices but declined to delineate the circumstances in which the privilege would protect communications within the Attorney General’s office. Third, the Supreme Court concluded that the Data Practices Act allowed the Attorney General to withhold certain “private data on individuals” such as “communications and noninvestigative files regarding administrative or policy matters which do not evidence final public actions” and investigative data even if the data do not pertain to natural persons. The court remanded to the district court for consideration of the application of the common-interest doctrine and attorney-client privilege to the documents withheld by the Attorney General. Energy Policy Advocates v. Ellison, No. A20-1344 (Minn. Sept. 28, 2022)
Virginia Court Dismissed Youth Plaintiffs’ Climate Case on Sovereign Immunity Grounds
A Virginia trial court dismissed a lawsuit brought by youth plaintiffs who alleged that the Commonwealth of Virginia’s permitting of fossil fuel development and infrastructure violated their common law public trust rights and substantive due process rights under the Virginia constitution. As reported by the AP, the court ruled from the bench and dismissed the case on sovereign immunity grounds. The plaintiffs said they would appeal the decision. Layla H. v. Commonwealth, No. CL22000632-00 (Va. Cir. Ct. Sept. 16, 2022)
Louisiana Court Cited Failure to Weigh Impacts of Greenhouse Gas Emissions in Decision Vacating Permits for Chemical Manufacturing Complex
A Louisiana District Court vacated air permits for a new chemical manufacturing complex in St. James Parish in an area referred to as Louisiana’s “Industrial Corridor.” The court found that the Louisiana Department of Environmental Quality (LDEQ) violated the Clean Air Act, the agency’s duties under the Louisiana Constitution’s public trust doctrine, and statutory requirements to consider how the air permits would affect the St. James Parish master plan. The violations of the public trust doctrine included LDEQ’s failure to consider the negative consequences of the project’s 13.6 tons per year of greenhouse gas emissions in the agency’s balancing of costs and benefits. The court found that LDEQ could not rely on its finding that the facility would comply with applicable standards and emission controls as a reason for not considering the impacts of the project’s greenhouse gas emissions. The court also was not persuaded by LDEQ’s argument that it could not determine how a specific facility’s contribution to greenhouse gas emissions would affect the physical environment. The court stated that “LDEQ’s public trustee duty does not require exactness” and that LDEQ was “not excused of its duty to evaluate the potential and real adverse impacts of [the applicant’s] greenhouse gases—especially given the enormity of the emissions—because it cannot quantify the exact impact at a specific place on Earth.” The court held that LDEQ “must take special care to consider the impact of climate-driven disasters fueled by greenhouse gases on environmental justice communities and their ability to recover.” The Advocate reported that LDEQ and the applicant filed notices of appeal and asked the district court to suspend the ruling pending the outcome of the appeals. Rise St. James v. Louisiana Department of Environmental Quality, No. 694,029 (La. Dist. Ct. Sept. 8, 2022)
NEW CASES, MOTIONS, AND OTHER FILINGS
Supreme Court Invited Solicitor General to Submit U.S.’s Views on Certiorari Petition Concerning Jurisdictional Issues in Local Government Climate Case
On October 3, 2022, the U.S. Supreme Court invited the Solicitor General to file a brief expressing the views of the United States on the petition for writ of certiorari filed by fossil fuel companies seeking review of the Tenth Circuit’s opinion upholding the remand order in the climate change case brought by Boulder and San Miguel Counties and the City of Boulder. The petition raised the questions of (1) Whether federal common law necessarily and exclusively governs claims seeking redress for injuries allegedly caused by the effect of interstate greenhouse-gas emissions on the global climate and (2) Whether a federal district court has federal question jurisdiction over claims necessarily and exclusively governed by federal common law but labeled as arising under state law. In a letter to the Third Circuit in support of its motion to stay the mandates in the City of Hoboken’s and State of Delaware’s cases, the defendants argued that the Supreme Court’s invitation to the Solicitor General made clear that these jurisdictional questions were “substantial.” The defendants cited an article that found that certiorari petitions were more than 46 times more likely to be granted once the Court sought the Solicitor General’s views. The defendants also cited the position the United States had previously taken in amicus briefs in Baltimore’s case and the Oakland/San Francisco case that the plaintiffs’ climate change claims were “inherently and necessarily federal in nature.” Deadlines for filing of petitions for writ of certiorari in other cases where the courts of appeal have affirmed remand orders are October 14 (Baltimore case), November 24 (County of San Mateo cases), December 4 (Rhode Island and Honolulu/Maui cases), and December 29 (Hoboken and Delaware cases). Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County, No. 21-1550 (U.S. Oct. 3, 2022)
Lawsuit Challenged FERC’s Grant of Additional Time for New Facilities at LNG Terminal
Sierra Club and Public Citizen filed a petition for review in the D.C. Circuit Court of Appeals challenging the Federal Energy Regulatory Commission’s (FERC’s) grant of a request for a 31-month extension of time to construct and place into service additional facilities, including a 21-mile-long pipeline, at an existing liquefied natural gas (LNG) terminal on Corpus Christi Bay in Texas. Before FERC, the petitioners’ arguments included that circumstances had changed since FERC authorized the LNG terminal and that FERC should assess the project’s greenhouse gas emissions in light of newly adopted emissions standards, the reinstated social cost of carbon protocol, and mitigation efforts such as carbon capture and sequestration. Sierra Club v. Federal Energy Regulatory Commission, No. 22-1235 (D.C. Cir., filed Sept. 6, 2022)
Sierra Club Challenged FERC Grant of Additional Time for Natural Gas Pipeline Project in New York
Sierra Club filed a petition for review in the D.C. Circuit Court of Appeals challenging FERC’s grant of a request for a 35-month extension of time for construction and placement into service of the Northern Access 2016 Project, which would involve construction of approximately 99 miles of natural gas pipeline in New York, a new compressor station, additional compression at an existing compressor station, and various appurtenant facilities. Arguments before FERC included that greater understanding of the impacts of climate change and the significance of greenhouse gas emissions constituted new information requiring updated environmental analysis. Sierra Club v. Federal Energy Regulatory Commission, No. 22-1233 (D.C. Cir., filed Sept. 6, 2022)
FOIA Lawsuit Sought Records from NOAA on Climate Data Fact-Checking Piece and Other Matters
On October 4, 2022, Government Accountability & Oversight filed a Freedom of Information Act (FOIA) lawsuit in federal district court in the District of Columbia seeking to compel the disclosure by the National Oceanic and Atmospheric Administration (NOAA) of records related to (1) the costs of sending officials to a conference in Portugal, (2) management of social media platforms, and (3) NOAA’s assistance with a fact-checking article regarding “a talking point about ‘corrupted’ climate change data.” The plaintiff—which the complaint described as a “a nonprofit research, public policy and public interest organization … dedicated to supporting pursuit of governmental transparency particularly in the areas of energy and environmental policy and regulation, how public institutions come to be used in the ways they are, and how policymakers use public resources”—submitted the FOIA requests in August 2022. Government Accountability & Oversight v. National Oceanic & Atmospheric Administration, No. 1:22-cv-02988 (D.D.C., filed Oct. 4, 2022)
Lawsuit Sought to Compel BOEM to Review and Revise 40-Year-Old Plans for Drilling Off California Coast
In a lawsuit filed in the federal district court for the Central District of California, Center for Biological Diversity (CBD) sought to bar the Bureau of Ocean Energy Management (BOEM) from authorizing new oil and gas drilling activities at the Beta Unit on the Pacific Outer Continental Shelf off Huntington Beach until BOEM reviews and revises development and production plans (DPPs). CBD alleged that the Outer Continental Shelf Lands Act (OCSLA) requires periodic reviews of DPPs and that BOEM had failed to review the DPPs—which had been in place for 40 years—for the Beta Unit (three drilling platforms and one processing platform) for at least two decades. CBD alleged that new information indicated that the DPPs for the Beta Unit were out of date, “increasing the numerous harms inherent in offshore drilling activities.” New information cited in the complaint included studies showing that climate change and ocean warming were increasing the frequency of extreme weather events, increasing wave power, and causing faster winds, which could affect the ability of the platforms to withstand wave conditions. The complaint also alleged that drilling off California’s coast “contributes to the climate emergency,” citing a study that found that “for each barrel of California oil left in the ground, only 0.4 to 0.8 barrels would be produced elsewhere, yielding a net reduction in global oil consumption of between 0.6 and 0.2 barrels.” CBD asserted claims under both the OCSLA and the Administrative Procedure Act. Center for Biological Diversity v. Haaland, No. 2:22-cv-06996 (C.D. Cal., filed Sept. 28, 2022)
Environmental Groups Said BLM Failed to Adequately Consider Environmental Impacts of Logging Plan in Oregon
Cascadia Wildlands and Oregon Wild filed a lawsuit in federal district court in Oregon challenging the U.S. Bureau of Land Management’s (BLM’s) approval of the plan for “a multi-decade series of logging projects on 13,225 acres of BLM-administered lands in Lane County west of Eugene, Oregon.” The plaintiffs asserted claims under the National Environmental Policy Act. Their specific allegations included that BLM “gave no in-depth consideration” to the project’s impacts on carbon sequestration and greenhouse gas emissions and other areas of concern. Cascadia Wildlands v. Adcock, No. 6:22-cv-1344 (D. Or., filed Sept. 8, 2022)
Environmental Groups Challenged 5,000-Well Oil and Gas Development Project in Wyoming
Two environmental groups filed a lawsuit in the federal district court for the District of Columbia challenging the Converse County Oil and Gas Project, which the plaintiffs alleged would involve development of 5,000 oil and natural gas wells in Wyoming’s Powder River Basin over a period of 10 years. The plaintiffs asserted claims under the National Environmental Policy Act (NEPA), the Federal Land Policy and Management Act (FLPMA), the Mineral Leasing Act (MLA), and the Administrative Procedure Act (APA). The complaint alleged that the defendants violated the MLA, FLPMA, and APA by failing to mitigate greenhouse gas and other air pollutant emissions. The complaint also alleged that the environmental review for the project violated NEPA by, among other things, failing to quantify the project’s cumulative greenhouse gas emissions and climate change impacts when combined with other reasonably foreseeable future actions and failing to consider reasonable alternatives that would reduce key impacts such as greenhouse gas emissions. Powder River Basin Resource Council v. U.S. Department of the Interior, No. 1:22-cv-02696 (D.D.C., filed Sept. 7, 2022)
Lawsuit Alleged that Syracuse Highway Project Would Violate New York Climate Law and Green Amendment
A lawsuit filed in a New York trial court sought to annul approvals for the Interstate 81 Viaduct Project in Syracuse, New York. The project would demolish the existing viaduct running through the center of the city, de-designate a portion of I-81 as an interstate highway, and route freeway traffic through ground-level intersections. The petitioners charged that the respondents failed to properly evaluate or minimize additional greenhouse gas emissions that would be generated by traffic-related impacts in violation of the New York State Environmental Quality Review Act, the Smart Growth Public Infrastructure Policy Act, and the Climate Leadership and Community Protection Act (CLCPA). The petition also alleged that consideration of greenhouse gas emissions associated with the project’s construction and operation was inadequate and that the New York State Department of Transportation had failed to issue regulations to contribute to the CLCPA’s statewide greenhouse gas emissions emission limits. In addition, the petitioners alleged a violation of the New York Constitution’s Green Amendment based on the alleged failure to properly analyze the environmental impact of the project and the selection of an alternative with unmitigated adverse impacts. Renew 81 for All v. New York State Department of Transportation, No. 007925/2022 (N.Y. Sup. Ct., filed Sept. 30, 2022)
Organizations Challenged San Diego’s “Aspirational” Climate Action Plan
Two non-profit organizations asked a California Superior Court to vacate the City of San Diego’s approvals of the City’s 2022 Climate Action Plan, which they alleged was “truly an aspirational policy document” that “does not include the detail or mechanisms to ensure its success.” The organizations alleged that the City failed to comply with the California Environmental Quality Act, including because the City failed to adequately analyze or mitigate significant impacts and failed to specify criteria or standards to ensure the Climate Action Plan’s emission reductions would be achieved. Climate Action Campaign v. City of San Diego, No. 37-2022-00036430-CU-TT-CTL (Cal. Super. Ct., filed Sept. 12, 2022)
HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART
FEATURED CASE
UN Human Rights Committee Found that Australia’s Failure to Protect Indigenous Torres Strait Islanders Against Adverse Impacts of Climate Change Violated Their Rights
On September 23, 2022, the UN Human Rights Committee (Committee) decided on a petition by the Torres Strait Islanders against the Australian government for violation of human rights due to failure to mitigate and adapt to climate change. The Committee found that Australia’s failure to take timely and adequate measures to protect the indigenous Islanders against adverse climate change impacts violated their rights to enjoy their culture and be free from arbitrary interferences with their private life, family, and home. The Committee considered the Islanders’ spiritual connection with their traditional lands, and the dependence of their cultural integrity on the health of their surrounding ecosystems. The Committee indicated that despite Australia’s adoption of a series of adaptation measures, such as the construction of new seawalls expected to be completed by 2023, additional timely and appropriate measures were required to avert a risk to the Islanders’ lives. Furthermore, the Committee noted that without robust national and international efforts, the effects of climate change may expose individuals to a violation of their right to life under the International Covenant on Civil and Political Rights. As remedies, the Committee asked Australia to compensate the indigenous Islanders for the harm suffered, engage in meaningful consultations with communities to assess their needs, and take measures to continue to secure the communities’ safe existence on their respective islands. Daniel Billy and others v Australia (United Nations Human Rights Committee) (for an in-depth analysis, see here)
DECISIONS & SETTLEMENTS
New Zealand Court Rejected NGO’s Challenge to Auckland Regional Land Transport Plan that Was Expected to Increase GHG Emissions
In June 2021, the Planning Committee of Auckland Council, acting on the recommendation of Auckland’s Regional Transport Committee (RTC), adopted the Regional Land Transport Plan 2021 (RLTP). Under the RLTP, Auckland’s transport emissions are expected to increase 6% between 2016 and 2031, and vehicle kilometers traveled per capita are not expected to decrease. All Aboard Aotearoa (AAA), an NGO, brought an action against the three local government bodies which had proposed, recommended, and adopted the RLTP. In July 2022, the court rejected the challenges to the decisions of all three agencies. First, it found that the RTC had not acted contrary to the purposes of the Land Transport Management Act 2003 (LTMA). This was because the LTMA made no explicit reference to social, economic, cultural, or environmental well-being, and the statute had actually been amended to remove such factors. Next, the court found that the RTC had not acted inconsistently with the Government policy statement on Land Transport 2021 (GPS). Although climate change was a strategic priority reflected in the GPS, it did not have primacy over other grounds, such as safety, better travel options, and improving freight connections. The RTC was entitled to balance climate considerations against other factors. The court also rejected procedural challenges related to the RTC’s decision to recommend the RLTP for adoption. The court further dismissed claims that the Auckland Council Planning Committee had acted unlawfully. It found that the Planning Committee’s role in adopting the RLTP was a limited non-statutory process to which its obligations under the Local Government Act 2002 did not apply. Finally, the Court dismissed the claim against the Board of Auckland Transport on the same basis as it had dismissed the claim against the RTC. All Aboard Aotearoa v Auckland Transport (High Court, New Zealand)
German Court Dismissed Climate Case Against Mercedes-Benz
On September 20, 2021, environmental organization Deutsche Umwelthilfe (DUH; Environmental Action Germany) filed an action against Mercedes-Benz in the Regional Court of Stuttgart for not yet having clearly and irreversibly committed to phase out the sale of passenger cars with internal combustion engines (ICE) by 2030. DUH argues that by failing to do so, the automaker is violating the fundamental right to climate protection and impinging upon the rights and freedoms of future generations, as ICE phase-out would be necessary for the company to adhere to its allocated carbon budget. The claim was grounded in the Paris Agreement and German Tort Law. The plaintiff relied on the earlier decision by the Federal Constitutional Court (BVerfG) on the German Climate Protection Act, where the Court accepted that Germany has a limited total CO2 emissions budget remaining at its disposal (Neubauer v. Germany). On September 13, 2022, the Regional Court of Stuttgart dismissed the case against Mercedes-Benz, on the grounds that it is up to the legislature to decide the appropriate measures to protect the climate. The court went on to state that this could not be preempted by an individual action before a civil court. DUH has announced that it will appeal this decision before the Higher Regional Court of Stuttgart. Deutsche Umwelthilfe (DUH) v. Mercedes-Benz AG (Regional Court of Stuttgart, Germany)
New Zealand Court Dismissed Claim by Māori Plaintiffs Against Government for Failure to Reduce Carbon Emissions
In March 2022, a Māori landowner and tribal climate spokesperson filed a claim against New Zealand arguing that the government had failed to adequately address the effects of climate change on New Zealand and its citizens, especially the Māori. Specifically, the plaintiff argued that the government had failed to incorporate international obligations into domestic law, and to reduce the carbon emissions produced by government activities. Furthermore, although the government had introduced an emissions trading scheme, the plaintiff argued that the overall emissions cap was too high and contained unjustifiable exemptions. In July 2022, the High Court of New Zealand struck out all three of the plaintiff’s claims as untenable. First, it found that the common law duty of care claim lacked reference to any recognized legal obligations and went beyond mere incremental development of new obligations. Furthermore, it was beyond the democratic role and institutional competence of a court to “monitor” the full scope of the government’s climate change response. Next, the court found that the right to life claim was untenable because the plaintiff had not pointed to a “real and identifiable” risk to a specified individual. Furthermore, the court found that the minority rights claim failed to particularize specific breaches, the Non-Discrimination and Minority Rights in New Zealand’s Bill of Rights Act (Section 20) does not impose positive duties on the State, and the Crown had taken adequate steps to consider the interests of Māori. Finally, the court found that Te Tiriti (the treaty between the Crown and Māori) does not give rise to free-standing obligations, and that plaintiff’s claim was too wide-ranging to give rise to fiduciary Te Tiriti obligations because such obligations would untenably be owed to the public in general. Even if such duties were to be developed, they would need to rely on the common law duty advanced in the first cause of action, which the Court deemed untenable in any event. Smith v. Attorney General (High Court, New Zealand)
Applicants Demanded Ordinance from the Minister of Digitalization and Business Location of Austria to Gradually Ban Sale of Fossil Fuels
In April 2022, the Administrative Court of Vienna issued a decision in a case regarding the application by three Austrian citizens, an Austrian municipality, and the NGO Global 2000 to the (then) Minister for Digitalization and Business Location requesting that the Minister issue an ordinance establishing a gradual ban on the sale of fossil fuels in Austria. The applicants argued that they were directly affected by the climate crisis, and therefore sales of fossil fuels should be halted to protect life, health, and the environment. The court addressed whether the plaintiffs could demand the enactment of the ordinance. With regard to the Effort Sharing Regulation, which sets binding greenhouse gas emission reduction targets for EU Member States, the court held that the regulation is directed at Member States and that subjective rights could principally arise from the regulatory content of the regulation. The court, however, concluded that the regulation’s wording does not show the European legislature’s intent to grant EU citizens subjective rights. Therefore, it held that the applicants do not have subjective rights to demand compliance with the Effort Sharing Regulation or the enactment of the proposed ordinance. In the context of fundamental rights, the court held that legislative and administrative inaction cannot be challenged in court and that it was not competent to order an administrative authority to issue an ordinance. Furthermore, it held that the state’s duty to protect fundamental rights, in particular from Article 2 of the EU’s Charter of Fundamental Rights, would only apply to localized natural disasters and hazards. Therefore, the applicants could not demand the enactment of an ordinance for phasing out fossil fuels based on fundamental rights. The plaintiffs plan to appeal to the Constitutional Court and the High Administrative Court. Fliegenschnee et al. v. Federal Ministry for Digitalisation and Business Location, Austria (Administrative Court of Vienna, Austria)
Mexican NGO’s Challenge to Law Eliminating the Climate Change Fund Still Pending Before Supreme Court
The General Law on Climate Change in Mexico was issued in 2012. The law created a Climate Change Fund, intended to attract and channel public, private, national, and international financial resources to support the implementation of actions to address climate change. In 2020, the Mexican Congress reformed the Law and eliminated the Climate Change Fund. On December 17, 2020, the Mexican Center for Environmental Law (CEMDA) filed a complaint challenging the amendments to the law, arguing, among other things, that the amended law violates the constitutional right to a healthy environment. The plaintiff requested an injunction to suspend the effects of the amendments, asking the Court to reverse the elimination of the Fund. The injunction was denied, as the judge considered that the reform did not restrict the exercise of any right. The judge argued that the reform did not eliminate all funds to address climate change, but rather reallocated the resources on to the Federal Expenditure Budget. CEMDA appealed the decision before a Collegiate Tribunal. In August 2021, the Tribunal decided, due to the relevance of the case, to send the appeal the Mexican Supreme Court. The Supreme Court’s decision is still pending. Mexican Center for Environmental Law (CEMDA) v. Mexico (District Court in Administrative Matters, Mexico)
Belgium Citizens Won Annulment of Permit for Gas Station in Boechout on Ground that Permit Was Not Carefully Assessed Under Environmental Objectives of Community
On April 3, 2019, GABRIËLS & CO l.c. requested an environmental permit to build and operate a new gas station in Boechout, a municipality of Belgium located in the Flemish province of Antwerp. The process for obtaining such a permit included a public inquiry, during which 51 objections to the project were raised. The municipal authority refused to deliver the permit to the requesting company since the envisaged gas station was not “future proof” in that it did not include a recharge point for electric cars or provide for compressed natural gas. However, the provincial government, on GABRIËLS’ appeal, decided that the project should receive an environmental permit, arguing the reason used by the local authorities to refuse the permit is illegal. After the permit was granted, prospective neighbors of the envisioned gas station sought to suspend and annul the environmental permit before the Council for Permit Disputes, a special administrative tribunal under Belgian law. In the course of the suspension procedure, the Council found that Art. 4.3.4 of the Flemish Code for Spatial Planning provides legal grounds for the denial of permits for projects that are not compatible with the objectives and duties of care of the local authority. The Council decided that the environmental permit was not properly granted because there was no research on whether the project would be compatible with the environmental objectives of the community of Boechout or whether mitigating measures would be sufficient to compensate for the negative impacts on the community. On this ground, the Council suspended the decision of the provincial government on April 22, 2021. In the primary procedure, which sought to annul the permit, the Council found on December 9, 2021, that there was insufficient justification with regard to the gas station’s compatibility with the residential area in which it was to be built and with its immediate surroundings; such compatibility is an important component of “good spatial planning,” and, as such, suffices as a ground to refuse to deliver an environmental permit. Lauwrys A.O. v. The Province of Antwerp (Council for Permit Disputes, Belgium)
NEW CASES, MOTIONS, AND OTHER FILINGS
NGOs Challenged Flemish Government’s Approval of Petrochemical Company’s Plastics Plant Project
In 2021, Flemish authorities announced their approval of petrochemicals company INEOS’s plastics plant project (Project One) in the Port of Antwerp, Belgium. ClientEarth and 13 other NGOs argue that this project would have tremendous and inadequately assessed environmental impacts, namely in the form of plastic pollution and climate change exacerbation. As a consequence, ClientEarth and 13 other NGOs submitted an appeal against the permit to the Flemish Ministry of the Environment in early 2022. They argued, in particular, that the permit’s Environmental Impact Assessment failed to meet the legal requirements and should not be granted. This appeal was dismissed in June 2022. A month later, the NGOs announced that they would bring the Flemish authorities to court to challenge this decision. They argue that “INEOS has so far failed to present an adequate assessment of how the project would impact the climate, nature and surrounding air quality—all of which are likely to suffer significantly if the project goes ahead”—and that “the Flemish authorities approved the project without first fully assessing its impacts—making the approval illegal according to EU and national laws.” This judicial procedure is currently pending before the Council of Permit Disputes (“Raad Voor Vergunningsbetwistingen”). ClientEarth v. Flemish Region (Council of Permit Disputes, Belgium)
NGOs Filed Complaint Against Spanish Government for Pollution in Mar Menor Lagoon
On October 6, 2021, ClientEarth and Ecologistas en Acción submitted a complaint to the European Commission over pollution in the Mar Menor Lagoon, located in the Region of Murcia, as a result of the increased economic use of the area with a convergent increase of activities that include agriculture, tourism, fishing, or old mining operations. In particular, the plaintiffs argue that contrary to the obligations envisaged in the EU Nitrates Directive and relevant nature laws, Spain has taken only superficial steps to protect Mar Menor Lagoon from harmful agricultural practices and failed to take necessary measures to avoid deterioration of the lagoon’s ecosystem and protected animal species. The plaintiffs request that the European Commission launch infringement proceedings against Spain, in accordance with Article 258 of the Treaty on the Functioning of the European Union. In December 2021, the European Commission referred Spain to the Court of Justice of the European Union for poor implementation of the Nitrates Directive. The Commission stated that “Spain must still take additional measures to prevent eutrophication for the whole country” and implement additional measures in those regions where the measures set in places “have proven insufficient to achieve the objectives of the Nitrates Directive,” including Murcia. ClientEarth and Ecologistas en Acción v. Spain (European Commission, Spain)
NGO Challenged German Government’s Program for GHG Emissions Reduction
Germany’s Federal Climate Change Act (KSG) requires each federal government ministry to draft immediate action programs (Sofortprogramm) when the greenhouse gas (GHG) emissions in their respective sectors have exceeded the permissible annual emissions budget. These plans are to demonstrate compliance with the annual sectoral emission budgets for the following years. Any immediate action program is to be presented to the Council of Experts on Climate Change which is tasked with assessing and examining “the assumptions on greenhouse gas reduction that underlie the measures.” On September 5, 2022, the NGO Deutsche Umwelthilfe (DUH; Environmental Action Germany) filed a lawsuit against the German government in the Higher Administrative Court of Berlin-Brandenburg challenging the Sofortprogramm of the Federal Ministry of Digital and Transport. In its consideration of the Transport Ministry’s immediate action program, the Council of Experts found that the measures suggested in the immediate action program were not sufficient to comply with § 8 (1) KSG. It calculated the cumulative emissions gap to amount to 261 million tons CO2-equivalent by 2030. On the basis of these findings and its own calculations, DUH is arguing for the short-term enforcement of an immediate action program that complies with the GHG reduction requirements of the Federal Climate Change Act. Deutsche Umwelthilfe (DUH) v. Germany (Higher Administrative Court, Germany)
Russian NGOs Filed Lawsuit Against Russian Government Demanding Action Under Paris Agreement to Protect Citizens from Future Risk of Greenhouse Emissions
On September 11, 2022, activists from several climate groups in Russia filed a case before the Supreme Court of the Russian Federation demanding that the Russian government protect its citizens from the risk of future death or serious illness by keeping the increase in global temperatures to 1.5–1.8℃ in accordance with its obligations under domestic and international law. The plaintiffs request Russian authorities take measures that will reduce the country’s GHG emissions, in line with targets of limiting the global temperature rise to 1.5℃ under the 2015 Paris Agreement. Russia is currently the fourth biggest producer of carbon emissions worldwide, and needs to reduce emissions 31% below its 1991 levels to meet the 2030 goal of the Paris Agreement. The plaintiffs contend that Russia’s insufficient measures on climate change are “violating the Russian constitution and the European convention on human rights” (ECHR). Russia had planned to withdraw from the ECHR on September 16, 2022, which means the climate lawsuit could be among the last cases in the country that the ECHR could issue a binding agreement on, if it is taken to the European courts. Ecodefense v. Russia (Supreme Court, Russia)