October 2023 Updates to the Climate Case Charts

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

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #175:

Second Circuit Said Connecticut’s Climate Case Against Exxon Belonged in State Court

The Second Circuit Court of Appeals affirmed an order remanding to state court the State of Connecticut’s lawsuit alleging that Exxon Mobil Corporation (Exxon) violated the Connecticut Unfair Trade Practices Act (CUTPA) by misleading and deceiving consumers about Exxon’s fossil fuel products’ impacts on climate. The Second Circuit first rejected Exxon’s arguments that there were exceptions to the well-pleaded complaint rule beyond the three established exceptions for cases (1) where a federal statute explicitly provides for removal of state law claims, (2) where federal law completely preempts state law claims, and (3) where a state-law right necessarily turns on a question of federal law. The Second Circuit said its precedent “squarely foreclosed” Exxon’s argument that the “artful pleading doctrine” provided a “broad, flexible exception … that extends beyond the bounds” of those three exceptions; the Second Circuit said the artful pleading doctrine was “simply a label for the first two of the three exceptions to the well-pleaded complaint rule.” The Second Circuit also rejected the argument that there was a fourth exception to the well-pleaded complaint rule for claims that may arise under federal common law. The Second Circuit further concluded that the third exception to the well-pleaded complaint did not apply because Connecticut’s deception and unfairness claims under CUTPA did not necessarily raise a federal issue because they could be resolved without reaching the federal common law of transboundary pollution. In addition, the Second Circuit found that Exxon did not establish that removal was authorized under the federal-officer removal statute or the Outer Continental Shelf Lands Act. Connecticut v. Exxon Mobil Corp., No. 21-1446 (2d Cir. Sept. 27, 2023)

Federal Court Upheld ERISA Regulation Allowing Benefit Plan Fiduciaries to Consider ESG Factors

The federal district court for the Northern District of Texas ruled that the U.S. Department of Labor’s 2022 amendments of its Investment Duties regulation that governs private-sector employee benefit plans did not violate the Employee Retirement Income Security Act of 1974 (ERISA) or the Administrative Procedure Act. The 2022 amendments included provisions that clarified that fiduciaries could consider environmental, social, and governance (ESG) factors such as climate change in risk and return analyses for investment decisions. The court rejected the argument by 26 states and several private plaintiffs that ERISA’s plain text foreclosed consideration of such “non-pecuniary” factors. The court also concluded that the 2022 amendments were not “manifestly contrary to the statute.” In finding that the amendments were not arbitrary and capricious, the court noted that it was “not unsympathetic to Plaintiffs’ concerns over ESG investing trends,” but that the Department of Labor had provided the required “minimal level of analysis” from which the agency’s reasoning in support of the regulation could be discerned. Utah v. Walsh, No. 2:23-cv-016 (N.D. Tex. Sept. 21, 2023)

 

DECISIONS AND SETTLEMENTS

Federal Court Upheld Endangered Species Act “Downlisting” of Beetle Facing Existential Climate Change Threat as Early as 2040

The federal district court for the District of Columbia upheld the U.S. Fish and Wildlife Service’s (FWS’s) “downlisting” of the American burying beetle from endangered to threatened under the Endangered Species Act (ESA). In a 2019 report, FWS identified climate change as a primary threat to the beetle that likely would result in the extirpation of the Southern Plains populations of the beetle between 2040 and 2069. The court rejected the plaintiff’s contention that these factual findings compelled a conclusion that the species was “in danger of extinction” throughout a significant portion of its range and thus “endangered” under the ESA definition. The court concluded that the ESA compelled FWS’s interpretation “that the only difference between an endangered species and a threatened one is the different timeframes of the danger of extinction,” with an endangered species facing a present danger of extinction and a threatened species likely to face that danger in the “foreseeable future.” The court further found that FWS was entitled to deference under Chevron step two with respect to its conclusions that “current danger of extinction can be low even if the best scientific evidence shows that extirpation is very likely in the far future because of extant forces” such as climate change and that the 2040­–2069 period in which extirpation is likely in the Southern Plains region “constitutes danger in the foreseeable future” within the ESA’s meaning. The court also found that the plaintiff had not identified any flaws in the FWS’s consideration of the evidence that would support a conclusion that FWS arbitrarily failed to consider evidence that the beetle faced a risk of earlier extirpation. The court also rejected the plaintiff’s contentions (1) that the notice-and-comment process was inadequate, (2) that FWS did not provide a sufficient explanation for its change in position from a 2008 review that found that the beetle remained endangered, and (3) that more stringent protections were required for the beetle even if the species was downlisted. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 1:21-cv-00791 (D.D.C. Sept. 30, 2023)

California Federal Court Rejected Challenges to NEPA Review for Right-of-Way Serving Pumped Storage Electric Generation Project

The federal district court for the Eastern District of California found that the U.S. Bureau of Land Management (BLM) complied with the National Environmental Policy Act (NEPA) in connection with its granting of a right-of-way for an electrical line and water supply pipeline for a pumped storage electrical generation project (the energy project) near Joshua Tree National Park. The Federal Energy Regulatory Commission (FERC) approved the energy project in 2014 after completing an environmental impact statement (EIS). BLM “tiered” its NEPA review to FERC’s EIS. The court rejected arguments that BLM failed to address global warming’s impacts on groundwater, noting that only the energy project—not the right-of-way—would have an impact on groundwater usage, and that BLM therefore was not required to conduct additional analysis regarding the energy project’s impacts on groundwater. The court noted that BLM nevertheless had reviewed “more up-to-date information on climate change” and found that annual precipitation was not anticipated to change despite global warming. The court also stated that by asserting that BLM had a duty “to separately address the way global warming might intensify the effects of the Project,” plaintiff “misunderstands what NEPA requires.” The court said that “NEPA requires that an agency must assess the impacts of the project on the environment, not the other way around.” The court found that the plaintiff did not contend the right-of-way would have an impact on global warming, only that global warming would increase the project’s other impacts. The court further found that to the extent the plaintiff claimed BLM failed to address how global warming would intensify the project’s impacts on groundwater overdraft and wildlife, BLM had conducted sufficient analysis. In addition, the court found no violations of the Federal Land Policy and Management Act or the Administrative Procedure Act. Desert Protection Society v. Haaland, No. 2:19-cv-00198 (E.D. Cal. Sept. 29, 2023)

Energy Company Dismissed Lawsuit After BLM Granted Applications to Drill on Colorado Lands

A company that in 2022 submitted two applications for permit to drill (APDs) wells on lands under BLM jurisdiction in Colorado filed a joint stipulation of dismissal of its action seeking to compel BLM to process the APDs. The parties filed the stipulation one day after BLM issued a final supplemental environmental assessment (SEA) for the North Fork Mancos Master Development Plan (MDP), affirmed prior approvals of the MDP, and approved the two APDs. The SEA contained analysis of greenhouse gas emissions and climate change impacts that BLM conducted after a district court in a case filed in 2021 granted BLM’s request for remand to conduct additional analysis and vacated the prior approvals of the MDP. Gunnison Energy LLC v. Haaland, No. 1:23-cv-01696 (D. Colo. Sept. 29, 2023)

Court of International Trade Ordered Commerce Department to Reconsider Determination that Korea’s Emissions Permit Allocation to Steel Company Constituted Countervailable Subsidy

The U.S. Court of International Trade remanded the U.S. Department of Commerce’s (Commerce’s) final results of the 2019 administrative review of the 2016 countervailing duty order on hot-rolled steel flat products from the Republic of Korea. Hyundai Steel Company was the sole mandatory respondent for the 2019 review. Pursuant to the Korean government’s Emissions Trading System of Korea (K-ETS), greenhouse gas emissions permits are allocated for each annual compliance year, with a standard “gratuitous” allocation of 97% of permits for K-ETS participants but with “types of businesses” that met “international trade intensity” or “production cost” criteria receiving a gratuitous allocation of 100% of their permits. Commerce determined that the additional 3% constituted a countervailable subsidy (i.e., when “a foreign government provides a financial contribution … to a specific industry” that confers “a benefit” on a “recipient within the industry.” The court found that Commerce applied an incorrect interpretation of whether revenue “is otherwise due” and lacked substantial evidence “that the full allocation does not result in revenue forgone that is otherwise due.” The court therefore directed Commerce to reconsider its determination that the 100% allocation of permits was a “financial contribution.” The court said Commerce also could reconsider the basis for its “benefit” determination depending on its reconsideration of the “financial contribution.” The court rejected, however, Hyundai Steel’s claim that Commerce “impermissibly ignored the burdens imposed by the K-ETS program.” The court said the circumstances when environmental compliance is non-countervailable were not present in this case. The court also directed Commerce to reconsider its finding that the subsidy was specific as a matter of law. Hyundai Steel Co. v. United States, No. 22-00170 (CIT Sept. 29, 2023)

Federal Court Said FERC Did Not Justify Application of Deliberative Process Privilege to Commissioners’ Calendar Entries

In a Freedom of Information Act (FOIA) lawsuit to compel disclosure of redacted information in calendars of two FERC Commissioners, the federal district court for the District of Columbia ruled that FERC had not justified its invocation of the deliberative process privilege for certain calendar entries but had sufficiently explained why privacy interests justified most of its Exemption 6 redactions, though not redactions related to names of “lower-level staff.” The court also found that FERC’s search of records had been adequate. The plaintiff requested the Commissioners’ calendars after FERC Chairman Richard Glick testified before Congress that no one “higher up” in the Biden administration had “ever spoken to [him] in regards to somehow slow-walking or otherwise impeding or otherwise actuating policy that would have the effect of impeding the development of natural gas pipelines.” The plaintiff said it requested the calendars because it was skeptical of Chairman Glick’s response. Institute for Energy Research v. Federal Energy Regulatory Commission, No. 1:22-cv-02114 (D.D.C. Sept. 19, 2023)

Alaska Federal Court Allowed Environmental Groups to Proceed with Challenge to 2020 EIS Regarding Oil and Gas Leasing in the National Petroleum Reserve–Alaska

The federal district court for the District of Alaska denied federal defendants’ and the State of Alaska’s motions to dismiss environmental groups’ amended complaint challenging a 2020 environmental impact statement (EIS) for revisions to an Integrated Activity Plan (IAP) for the National Petroleum Reserve–Alaska (NPR-A). The 2020 EIS purported “to fulfill NEPA requirements for lease sales conducted at least through December 2039.” In 2020, BLM selected the 2020 EIS’s preferred alternative as the revised IAP, which opened approximately 82% of the NPR-A to oil and gas leasing. In 2022, BLM approved a new IAP that adopted the 2020 EIS’s no-action alternative, pursuant to which approximately 52% of the NPR-A would be available for leasing. BLM subsequently published an errata sheet with “minor edits” to the 2020 EIS, including a statement that “[t]his programmatic IAP/EIS is not intended to, by itself and without further NEPA analysis, fulfill NEPA requirements for future lease sales.” In their amended complaint filed after the court lifted a stay, the plaintiffs asserted that the federal defendants failed to consider a reasonable range of leasing alternatives in the 2020 EIS and failed to take a hard look at the impacts of greenhouse gas emissions from lease sales in the NPR-A. The plaintiffs sought to bar reliance on the 2020 EIS to authorize future lease sales without further analysis. The court ruled that the plaintiffs’ claims were not moot, finding that various factors supported “a reasonable expectation that BLM might change its position again” and concluding that the voluntary cessation exception to mootness therefore applied. In addition, the court rejected other challenges by Alaska to the plaintiffs’ standing as well as Alaska’s arguments that the claims in the amended complaint were time-barred and that the plaintiffs could not challenge the 2020 EIS because BLM did not have to prepare an EIS in order to proceed with the no-action alternative. National Audubon Society v. Haaland, No. 3:20-cv-00206 (D. Alaska Sept. 14, 2023)

Federal Court Dismissed Two Claims from Carbon Dioxide Pipeline Developer’s Suit Against Iowa County

The federal district court for the Northern District of Iowa dismissed individual county supervisors from an interstate carbon dioxide pipeline developer’s lawsuit challenging an Iowa county’s ordinance regulating hazardous liquid pipelines. The court denied a motion to dismiss the board of supervisors as a defendant. The court also dismissed two of the plaintiff’s five claims—(1) a tortious interference with contracts and prospective business advantages claim and (2) an inverse condemnation claim. Navigator Heartland Greenway LLC v. Emmet County, No. 3:23-cv-03013 (N.D. Iowa Sept. 13, 2023)

Federal Court Said Plaintiff Lacked Standing for Greenwashing Case Against KLM

The federal district court for the Southern District of New York granted the Dutch airline KLM’s motion to dismiss a putative class action claiming that KLM misled consumers who purchased airline tickets in reliance on allegedly “misleading promises of its commitment to adhere to the carbon emissions targets defined by the historic Paris Climate Agreement.” The plaintiff asserted causes of action for violations of New York and other states’ consumer fraud statutes, as well as claims for breach of contract and unjust enrichment. The court found that the plaintiff’s allegations regarding her injury—that she would not have purchased her airline ticket, or would not have paid as much for the ticket, absent KLM’s alleged misrepresentations—appeared not to be true based on evidentiary submissions from KLM that indicated that a third-party organization, not the plaintiff, had purchased the ticket and that the plaintiff could not have known which airline the organization would select for her travel. The court therefore found that the plaintiff lacked standing. The court further found that given the “demonstrably false allegations” in the complaint, sanctions against plaintiff’s counsel could be warranted pursuant to Rule 11(b) of the Federal Rules of Civil Procedure. The court granted the plaintiff leave to amend, “provided she has a good faith basis for doing so.” Dakus v. Koninklijke Luchtvaart Maatschappij, N.V., No. 1:22-cv-07962 (S.D.N.Y. Sept. 12, 2023)

Federal Court Asked Hawai‘i Supreme Court to Weigh in on Legal Questions Related to Insurers’ Duty to Defend Energy Company in Honolulu and Maui Climate Cases

In an energy company’s lawsuit asserting that its insurers had breached their duty to defend the company in Maui’s and Honolulu’s cases seeking to hold fossil fuel companies liable for climate change impacts, the federal district court for the District of Hawaii certified two questions of Hawai‘i law to the Hawai‘i Supreme Court: (1) For any insurance policy defining a covered “occurrence” in part as an “accident,” can an “accident” include recklessness? and (2) For an “occurrence” insurance policy excluding coverage of “pollution” damages, are greenhouse gases “pollutants,” i.e., “gaseous” “irritant[s] or contaminant[s], including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste”? Regarding whether greenhouse gases constituted pollutants, the energy company argued for a distinction between greenhouse gases and “traditional environmental pollution.” Aloha Petroleum, Ltd. v. National Union Fire Insurance Co. of Pittsburgh, No. 22-cv-00372 (D. Haw. Sept. 5, 2023)

Washington Federal Court Said Remand Without Vacatur Was Appropriate Remedy for NEPA Violations in Connection with Increased Aircraft Operations

Slightly more than a year after finding that the Navy failed to adequately disclose greenhouse gas emissions and other impacts of increased Growler aircraft operations at the Naval Air Station Whidbey Island, the federal district court for the Western District of Washington found that the appropriate remedy was remand without vacatur. Although the court found that “failure to conduct these necessary analyses are … sufficiently serious violations as they clearly undermine central congressional objectives of NEPA,” the court further found that the Navy provided substantial support for the conclusion that the increased Growler presence for training was essential for national security and that the court must “greatly defer” to senior military officials professional judgments. The court therefore found that equities and the public interest weighed strongly in favor of remand without vacatur. Washington v. U.S. Department of the Navy, No. 2:19-cv-01059 (W.D. Wash. Sept. 1, 2023)

California Appellate Court Upheld CEQA Exemption for Reduction of Parking Requirements for Developments in San Diego Transit Priority Areas

The California Court of Appeal affirmed the denial of a challenge to the City of San Diego’s determination that an ordinance and related resolutions that reduced parking requirements for multifamily residential developments in transit priority areas were exempt from review under the California Environmental Quality Act (CEQA). The City concluded that the ordinance qualified for the “commonsense” exemption, which applies to projects where “it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” The City concluded that the reduced parking requirements would not cause a significant effect on the environment because the requirements were directed at development in transit priority areas that met the requirements of Senate Bill No. 743 (a 2013 state law intended to encourage planning decisions to reduce vehicle miles traveled and greenhouse gas emissions). The appellate court found that substantial evidence supported the presumptions that the ordinance would have a less than significant transportation impact. CREED-21 v. City of San Diego, No. D080419 (Cal. Ct. App. Sept. 26, 2023)

California Appellate Court Upheld Carbon Offset Purchases as CEQA Mitigation Measure

The California Court of Appeal found that the environmental impact report for a long-range planning document to guide future development of a campus of the University of California, San Francisco was compliant with CEQA. Among the arguments rejected by the court was a contention that a mitigation measure providing for the purchase of carbon offset credits to mitigate greenhouse gas emissions was unenforceable and that the details of the measure were improperly deferred. Yerba Buena Neighborhood Consortium, LLC v. Regents of the University of California, No. A166091, A166094 (Cal. Ct. App. Sept. 20, 2023)

California Appellate Court Rejected Challenges to Climate Change Analyses in CEQA Review

The California Court of Appeal ruled that a methodology used by the County of Sacramento to determine the significance threshold for the greenhouse gas emissions from a development project was different from methodologies previously rejected by the California Supreme Court and another intermediate appellate court. The Court of Appeal also rejected contentions that the County failed to assess the impacts of the project’s construction-related greenhouse gas emissions on climate change. Tsakopoulos Investments, LLC v. County of Sacramento, No. C095631 (Cal. Ct. App. Sept. 7, 2023)

New York Court Nullified Negative Declaration for Substation but Rejected Petitioners’ Arguments that Project Would Violate Climate Law

A New York Supreme Court nullified a negative declaration issued by the Town of Dover Planning Board pursuant to the State Environmental Quality Review Act for a site plan application for an electric utility substation. The court found that the Planning Board had not taken the required hard look at the potential impacts of subsurface contamination on local groundwater and on the surface water, groundwater, and ecological resources of the Cricket Hill Preserve, known as the Great Swamp. The court rejected, however, the petitioners’ contention that the Planning Board should not have approved the project pursuant to the Climate Leadership and Community Protection Act (CLCPA) because the substation would have negative impacts on Dover, which was designated as a “disadvantaged community” pursuant to the CLCPA. The court found that there was no evidence that the Planning Board failed to take a hard look at the issue of whether the project would violate the CLCPA, noting that the Planning Board’s attorney had researched the issue and advised the Board of the CLCPA’s inapplicability and also that the Board’s planner had provided a memo regarding his concurrence with the applicant’s conclusions regarding the CLCPA. Friends of the Great Swamp (Putnam & Dutchess Countries), Inc. v. Town of Dover, No. 2023-50796 (N.Y. Sup. Ct. Aug. 24, 2023)

D.C. Court Dismissed Greenwashing Case Against Gas Company

A District of Columbia Superior Court dismissed a lawsuit alleging that Washington Gas Light Company—a gas company regulated by the D.C. Public Service Commission (PSC)—engaged in misleading and deceitful marketing in violation of the Consumer Protection Procedures Act (CPPA). The plaintiffs alleged that the defendant’s descriptions of its product as “clean” and “sustainable” were misleading. The court ruled that the CPPA explicitly exempted gas companies regulated by the PSC from the court’s subject matter jurisdiction. Client Earth v. Washington Gas Light Co., No. 2022 CA 003323 B (D.C. Super. Ct. Aug. 31, 2023)

Administrative Law Judge Said NYSDEC Could Deny Permit Renewal for Power Plant Based on State Climate Law; Issue of Permit’s Justification to Be Adjudicated

In a ruling on issues raised regarding the denial of an application for renewal of a natural gas-fired power plant’s Title V air permit, a New York State Department of Environmental Conservation (NYSDEC) administrative law judge (ALJ) ruled that Section 7(2) of the Climate Leadership and Community Protection Act (CLCPA) authorized NYSDEC to deny the application. Section 7(2) provides that New York State agencies must consider whether decisions “are inconsistent with, or will interfere with, the attainment of the statewide [greenhouse gas] emission limits” established in the CLCPA, and, if an action is deemed inconsistent, that agencies must provide a detailed justification and identify alternatives or greenhouse gas mitigation measures to be imposed. The ALJ also found that NYSDEC staff did not err in concluding that the renewal permit was not consistent with the CLCPA emissions limits notwithstanding the applicant’s proposal to cease operations in 2035 or 2040. The ALJ’s other issues rulings included a determination that CLCPA Section 7(3)—which requires that New York State agencies “not disproportionately burden disadvantaged communities”—was applicable to the permit renewal application. The ALJ identified three issues for adjudication: (1) whether there is justification for renewal of the air permit notwithstanding its inconsistency with the greenhouse gas emissions limits; (2) whether there are proposed alternatives or greenhouse gas mitigation measures that would immediately lessen or eliminate the inconsistency or interference with greenhouse gas emissions goals at the time of permit issuance; and (3) whether renewal of the air permit would disproportionately burden disadvantaged communities. Although the ALJ concluded that the power plant’s primary purpose—which was to provide electricity for cryptocurrency mining—was not relevant to whether the renewal permit was inconsistent with the CLCPA greenhouse gas emissions limits, the ALJ found that purpose could be considered in the determination of whether the permit renewal was justified. The ALJ granted full party status to four environmental groups. In re Greenidge Generation LLC, No. 8-57360-0004/00017 (NYSDEC Sept. 22, 2023)

 

NEW CASES, MOTIONS, AND OTHER FILINGS

 

California Filed Climate Change Action Against Fossil Fuel Industry Defendants

The California Attorney General filed an action in California Superior Court against 13 fossil fuel companies and the American Petroleum Institute alleging that the defendants were “substantially responsible” for causing and accelerating climate change and had knowingly concealed and misrepresented their products’ dangers, causing a “delayed societal response to global warming.” California alleged that the defendants had known about the potential warming effects of greenhouse gases since as early as the 1950s and that over the course of decades the defendants had “mounted a public campaign of deception in order to continue wrongfully promoting and marketing their fossil fuel products, despite their own knowledge and the growing national and international scientific consensus about the hazards of doing so.” The complaint also contended that the defendants continue “to mislead the public about the impact of fossil fuel products on climate change through ‘greenwashing.’” California alleged that the defendants’ conduct had resulted in environmental consequences that included extreme heat, drought, wildfires, increased frequency and severity of extreme weather events, sea level rise and coastal flooding, and ocean warming and acidification, as well as “cascading social, economic, health, and other consequences.” The complaint asserted statutory causes of action for public nuisance; equitable relief for pollution, impairment, and destruction of natural resources; untrue or misleading advertising; misleading environmental marketing; and unlawful, unfair, or fraudulent business practices. The complaint also asserted strict products liability and negligent products liability claims. California asked the court to order the defendants to abate the public nuisance, including by establishing and contributing to a fund to pay the costs of abatement; to grant equitable relief as required to protect and prevent pollution, impairment, and destruction of natural resources; to prohibit the defendants from making false and misleading statements and engaging in unfair competition and to restore any property or money defendants might have acquired through violations of California’s unfair competition, false advertising, and environmental marketing laws; to assess civil penalties; to award compensatory, punitive, and exemplary damages; and to award costs to the State. People v. Exxon Mobil Corp., No. T-23-1342 (Cal. Super. Ct., filed Sept. 15, 2023)

Other recent developments in state and local government climate cases against fossil fuel industry defendants included the following:

• On September 26, 2023, a Delaware Superior Court heard oral arguments on fossil fuel companies’ motions to dismiss the State of Delaware’s case. State v. BP America Inc., N20C-09-097 (Del. Super. Ct. Sept. 26, 2023)
• Five amicus briefs were filed in support of fossil fuel industry defendants’ petition for writ of certiorari seeking Supreme Court review of the Eighth Circuit’s affirmance of the remand order in the State of Minnesota’s case. The amicus briefs were filed by American Free Enterprise Chamber of Commerce, American Tort Reform Association, Chamber of Commerce of the United States of America, National Association of Manufacturers, and 17 states led by Alabama. Minnesota’s response to the certiorari petition is due October 23. American Petroleum Institute v. Minnesota, No. 23-168 (U.S.)
• Multnomah County filed a motion to remand its case to Oregon state court. The County argued that the defendants failed to establish complete diversity of citizenship; the County contended that the defendants failed to show that in-state defendant Space Age Fuel, Inc. was added to defeat jurisdiction. The County also argued that the defendants should be estopped from relitigating their federal officer removal and First Amendment theory of Grable jurisdiction based on the doctrine of offensive non-mutual collateral estoppel, and that, in any event, the defendants failed to show the case was removable on either of those grounds. County of Multnomah v. Exxon Mobil Corp., No. 3:23-cv-01213 (D. Or. Oct. 2, 2023)
• Legal Newsline reported that the Rhode Island Superior Court hearing Rhode Island’s case issued an order stating that it would not base any findings in the case on articles that the court cited in an April 2023 decision granting Rhode Island’s motion to conduct jurisdictional discovery. The articles discussed the United Nations 2022 climate conference. The court stated that it “will base any findings in this matter on evidence once it is properly presented in this proceeding.” The defendants had requested that references to matters outside the record in the April 2023 decision, including references to the articles, be struck. State v. Chevron Corp., No. PC-2018-4716 (R.I. Super. Ct.)

 

Montana Appealed Trial Court’s Rulings for Youth Plaintiffs in Constitutional Climate Case

The Montana Attorney General filed a notice in the Montana Supreme Court of its appeal of trial court rulings in favor of youth plaintiffs who asserted that the State’s energy-related policies violated their rights to a clean and healthful environment under the Montana Constitution. The trial court held in August that the plaintiffs’ rights were violated by a provision of the Montana Environmental Policy Act prohibiting consideration of greenhouse gas emissions and corresponding climate change impacts in environmental reviews. Held v. State, No. DA 23-0575 (Mont. Sept. 29, 2023)

Refrigerant Manufacturer, Importers, and Distributors Challenged EPA’s Allowance Allocation Methodology for Hydrofluorocarbon Phasedown

A refrigerant manufacturer and 11 companies that import or distribute refrigerant gases filed petitions for review in the D.C. Circuit Court of Appeals challenging the U.S. Environmental Protection Agency’s (EPA’s) final rule regarding the allowance allocation methodology for 2024 and later years that will be used to implement the phasedown of hydrofluorocarbons under the American Innovation and Manufacturing Act. The D.C. Circuit consolidated the cases. IGas Holdings, Inc. v. EPA, Nos. 23-1261, 23-1263 (D.C. Cir., filed Sept. 14, 2023)

Challenges Filed to 2023–2025 Renewable Fuel Standards by Environmental Groups, as Well as Biofuel and Oil/Gas Interests

Nine petitions for review were filed in the D.C. Circuit Court of Appeals challenging EPA’s final rule establishing renewable fuel standards for 2023 to 2025 and amending other regulations for the Renewable Fuel Standard program. The D.C. Circuit consolidated the cases. The petitions were filed by Center for Biological Diversity (No. 23-1177); Neste US, Inc., which imports renewable fuel produced at refineries of affiliates (No. 23-1240); a coalition of small refineries, as well as three other refiners (No. 23-1243); REH Company, an oil and gas company (No. 23-1244); Sustainable Advanced Biofuel Refiners Coalition, which asserted that the final rule reopened regulations implementing the biomass-based diesel program from as early as 2010 (No. 23-1246); American Fuel & Petrochemical Manufacturers (No. 23-1247); Coalition for Renewable Natural Gas (No. 23-1248); and National Wildlife Federation (No. 23-1249). The ninth petition (No. 23-1245) was filed by Clean Fuels Alliance America (formerly the National Biodiesel Board), which represents U.S. biodiesel and renewable diesel producers and supporting industries. Clean Fuels voluntarily dismissed its petition and then filed a motion for leave to intervene in support of EPA in response to issues raised by oil and gas company petitioners and environmental groups. Center for Biological Diversity v. EPA, Nos. 23-1177, 23-1240, 23-1243, 23-1244, 23-1245, 23-1246, 23-1247, 23-1248, 23-1249 (D.C. Cir.)

Lawsuit Sought EPA Review of Nitrogen Oxides Air Quality Criteria and Standards

Three environmental groups filed a complaint in the federal district court for the Northern District of California seeking to compel EPA “to complete a thorough review of the air quality criteria and National Ambient Air Quality Standards (‘NAAQS’) for nitrogen oxides (‘NOx’)” and to modify the air quality criteria and NAAQS as appropriate. Their complaint alleged that NOx emissions contributed to a variety of public health problems, including by playing a role in global climate change. Center for Biological Diversity v. Regan, No. 3:23-cv-04979 (N.D. Cal., filed Sept. 28, 2023)

Challenge to Commercial Logging Project Alleged Failure to Consider Climate Impacts of Logging Mature Forests

Three environmental groups filed a lawsuit in the federal district court for the District of Montana to block the U.S. Forest Service from moving forward with a commercial logging project in the Custer Gallatin National Forest. The groups alleged that the approved project authorized clearcutting on more than 5,500 acres and commercial logging on another 6,600 acres of mature forests, as well as 56 miles of roads. They asserted that the Forest Service violated the National Environmental Policy Act (NEPA), the National Forest Management Act, and the Administrative Procedure Act. Under NEPA, the plaintiffs alleged a failure to disclose the project’s climate change impacts, including impacts on carbon storage and sequestration, as well as the potential climate impacts of project implementation, such as the use of fossil fuel engines to build roads, cut trees, and remove and transport cut logs. The plaintiffs alleged that “[t]he Forest Service dismissed the impacts of logging these mature forests as ‘infinitesimal,’ ignoring years of science and agency guidance.” Center for Biological Diversity v. U.S. Forest Service, No. 9:23-cv-00110 (D. Mont., filed Sept. 20, 2023)

Mountain Valley Pipeline Developer Sued Two Protesters in Federal Court in West Virginia

The developer of the Mountain Valley Pipeline filed lawsuits in the federal district court for the Southern District of West Virginia against two protesters, one of whom allegedly attached herself to equipment to prevent its operation and delay work and the other who allegedly blocked a roadway. The developer asked the court to enjoin the defendants from entering the subject property or interfering with or obstructing construction and other work. The developer also sought compensatory and punitive damages. The complaints—to which the developer attached social media posts about the protest and a blog post by one of the protesters—included counts for preliminary injunction, permanent injunction, trespass, tortious interference, violation of West Virginia’s Critical Infrastructure Protection Act, and civil conspiracy. The defendants filed a motion for abstention, citing ongoing state criminal proceedings against them and alleged co-conspirators and state civil lawsuits against their co-conspirators that mirrored these federal complaints. Mountain Valley Pipeline, LLC v. Tuhus, Nos. 5:23-cv-00625, 5:23-cv-00626 (S.D. W. Va., filed Sept. 19, 2023)

Environmental Organizations Sought Decision on Petition to Protect Climate Change-Threatened Ghost Orchid Under Endangered Species Act

The Institute for Regional Conservation and two other organizations filed a lawsuit in the federal district court for the Southern District of Florida seeking to compel the U.S. Fish and Wildlife Service to make a decision regarding the organizations’ 2022 petition to list the ghost orchid as endangered or threatened under the Endangered Species Act. The organizations alleged that the ghost orchid faces many threats, including “poaching and modifications to its habitat due to hydrological changes, wildfires, sea level rise, and severe storms and hurricanes.” Institute for Regional Conservation v. U.S. Fish & Wildlife Service, No. 9:23-cv-81257 (S.D. Fla., filed Sept. 13, 2023)

Environmental Groups Said BLM Failed to Consider Impacts of Logging Old-Growth Forest Areas

Two environmental groups filed a lawsuit in the federal district court for the District of Oregon challenging the U.S. Bureau of Land Management’s (BLM’s) review of the Big Weekly Elk Forest Management Project. The complaint described the project as authorizing logging of 3,608 acres of old-growth forest that supports wildlife protected under the Endangered Species Act. The plaintiffs contended that an environmental impact statement should have been prepared for the project and that BLM failed to take a hard look at the project’s impacts, including effects on carbon sequestration and greenhouse gas emissions. They also alleged that BLM failed to analyze the project’s cumulative impacts in connection with other forest management actions in the same area. They asserted violations of the National Environmental Policy Act, the Federal Land Policy and Management Act, and the Administrative Procedure Act. Cascadia Wildlands v. U.S. Bureau of Land Management, No. 6:23-cv-01358 (D. Or., filed Sept. 19, 2023)

Alaska and Electric Utilities Challenged Reinstatement of Roadless Rule in Tongass National Forest

The State of Alaska and an electric utility and electric utility trade group filed lawsuits in the federal district court challenging the U.S. Department of Agriculture’s (USDA’s) January 2023 decision to reinstate the Roadless Area Conservation Final Rule (Roadless Rule) in the Tongass National Forest. The January 2023 action repealed an October 2020 rule that exempted the Tongass National Forest from the Roadless Rule. In the notice of the repeal of the October 2020 rule, USDA stated that it now believed that the “adverse consequences” of exempting the Tongass from the Roadless Rule outweighed the benefits of decreasing federal regulation. USDA also found that restoring the Roadless Rule would advance or be consistent with other policy priorities, including retaining and enhancing carbon storage and enhancing climate resilience. The notice stated that “[t]he Tongass stores more carbon than any other national forest in the United States. Large old-growth trees in the Tongass are important for carbon storage and sequestration, which can play a role in addressing the climate crisis.” In its lawsuit challenging the reinstatement of the Roadless Rule, Alaska asserted claims under the Administrative Procedure Act; the Alaska National Interest Lands Conservation Act; the Tongass Timber Reform Act; the FY 2015 Defense Authorization Act; the Wilderness Act; the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU); Article I of the Constitution (separation of powers); the Multiple-Use Sustained Yield Act (MUSYA); the Organic Administration Act (Organic Act); the Forest Roads and Trails Act; and the Alaska Statehood Act. The electric utility plaintiffs asserted a claim that the reinstatement was ultra vires under the Administrative Procedure Act (citing the Organic Act and MUSYA) and a claim that the action violated separation of powers. Alaska v. U.S. Department of Agriculture, No. 3:23-cv-00203 (D. Alaska, filed Sept. 8, 2023); Inside Passage Electric Cooperative v. U.S. Department of Agriculture, No. 3:23-cv-00204 (D. Alaska, filed Sept. 8, 2023)

Lawsuit Alleged that Implementation of National Flood Insurance Program in Oregon Violated Endangered Species Act

Four organizations filed a lawsuit in the federal district court for the District of Oregon alleging that the Federal Emergency Management Agency’s (FEMA’s) continuing operation of the National Flood Insurance Program (NFIP) in Oregon violated the Endangered Species Act by jeopardizing the existence of 17 protected species and destroying or adversely modifying the habitat of 16 of the species. The organizations alleged that development incentivized by the NFIP “puts people in danger, harms communities, and destroys ecosystems.” The complaint cited FEMA’s consultation with the National Marine Fisheries Service (NMFS) in after an earlier lawsuit; the resulting biological opinion (BiOp) determined that implementation of the NFIP—its regulatory floodplain management criteria, floodplain mapping, and Community Rating System program—was jeopardizing species and destroying or adversely modifying critical habitat. The plaintiffs alleged that the BiOp—which found, among other things, that the NFIP’s effects would exacerbate climate change-related habitat changes for at least one of the species—set out six elements of a reasonable and prudent alternative to bring the NFIP into compliance with the Endangered Species Act. The plaintiffs sought declarations that FEMA had violated its duties under the Endangered Species Act and that its failure to implement NMFS’s reasonable and prudent alternative constituted unlawful withholding or delaying of a nondiscretionary duty. Northwest Environmental Defense Center v. Federal Emergency Management Agency, No. 3:23-cv-01335 (D. Or., filed Sept. 14, 2023)

NEPA Challenge to New Apartment Building Alleged Climate Change-Related Public Safety Concerns

An entity representing residents of a public housing development in Marin City filed a lawsuit alleging that Marin County and other defendants failed to comply with the National Environmental Policy Act (NEPA) in connection with development of a new apartment building in Marin City. The plaintiff’s NEPA allegations included that the development would be “inconsistent with public safety concerns that are escalating due to climate change” because the new building would be located in a densely populated area where “the climate crisis makes wildfires, flooding, and mudslides … more likely.” Golden Gate Village Resident Council v. County of Marin, No. 3:23-cv-04624 (N.D. Cal. Sept. 8, 2023)

 

HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART

 

United Kingdom’s High Court Dismisses ClientEarth’s Application for Derivative Claim Against Shell Directors over Climate Change Strategy

ClientEarth held shares in Shell plc and was therefore a member of Shell. In that capacity it applied for permission to bring a derivative claim against Shell’s directors under section 260 of the Companies Act 2006. The claim concerned Shell’s climate change risk management strategy, as well as its response to the Milieudefensie v Royal Dutch Shell plc ruling.

In respect of these, ClientEarth alleged the directors had breached their general duties to promote the success of Shell (section 172) and to exercise reasonable care, skill, and diligence (section 174), along with certain specific or “incidental” duties formulated by ClientEarth (such as a duty to make judgments regarding climate risk that are based upon a reasonable consensus of scientific opinion). The various alleged breaches of these duties were grouped by the court under the following headings: failure to set an appropriate emissions target; failure of the strategy to manage climate risk to establish a reasonable basis for achieving the net zero target and align with the 1.5°C pathway; and failure to comply with the Milieudefensie ruling.

The court’s permission is required to continue a derivative claim of this nature. An application for permission cannot proceed if it appears to the court that it does not show a prima facie case for giving permission. On May 12, 2023, having reviewed the case papers, the High Court dismissed ClientEarth’s application because no such prima facie case had been shown. ClientEarth exercised its right for that decision to be reconsidered at a hearing, following which the High Court reaffirmed its original decision, refusing permission and dismissing the claim. The court’s reasons are set out in its judgment of July 24, 2023.

The High Court found that there were a number of fundamental reasons why the breaches alleged did not establish a prima facie case. Firstly, very little weight could be given to ClientEarth’s witness evidence, which did not amount to expert evidence. Secondly, that evidence did not support a prima facie case that there is a universally accepted methodology as to the means by which Shell might be able to achieve its reductions targets. This meant it was very difficult to treat what was said as providing a proper evidential basis for alleging no reasonable board of directors could properly conclude that the pathway to achievement is the one they adopted. Thirdly, ClientEarth accepted the directors do have policies and targets to achieve net zero. Its case ignored the fact that the management of a business of the size and complexity of that of Shell will require the directors to take into account a range of competing considerations, the proper balancing of which is a classic management decision with which the court is ill-equipped to interfere. (Judgment paragraphs 46 to 48.)

As to the Milieudefensie ruling, the Dutch court accepted that Shell is not currently acting unlawfully and recognized that it is a matter for Shell to decide on how it exercises its discretion to comply with reduction obligations imposed by Dutch law. There was no prima facie case that the directors had breached their duties in respect of the Dutch order (Paragraphs 49 to 54).

As to the relief sought, ClientEarth had failed to make out a prima facie case that the court should grant the request. A mandatory injunction was sought that Shell (a) adopt and implement a strategy to manage climate risk in compliance with its statutory duties and (b) comply immediately with the Dutch order. This was too imprecise to be suitable for enforcement. A declaration was also sought—that the directors had breached their duties in the manner described. Whilst this did not suffer from imprecision, it was difficult to see what legitimate purpose it would fulfill. It was not the court’s function to express views on the directors’ conduct, which have no substantive effect and fulfill no legally relevant purpose. The proper forum for generating those types of views as to the directors’ conduct was by vote of the members in the general meeting (Paragraphs 55 to 59).

It was also appropriate to regard certain discretionary factors in section 263 of the Act. These pointed to no prima facie case for granting permission (paragraphs 60 to 70). In a costs judgment of August 31, 2023 the High Court confirmed its refusal of ClientEarth’s application for permission to appeal to the Court of Appeal. ClientEarth may still apply directly to the Court of Appeal for permission, and it appears that is what it intends to do. That indication was given in a ClientEarth press release of July 24, 2023. ClientEarth v. Shell’s Board of Directors (High Court of Justice, United Kingdom)

 

DECISIONS & SETTLEMENTS

Brazilian State Public Prosecutor’s Office Challenged a State Law that Reduces Conservation Units

The Public Prosecutor’s Office of the State of Rondônia (MPRO) filed a State Direct Action of Unconstitutionality (ADI), with a request for a precautionary measure, due to the publication of state Complementary Law (LC) 1.089/2021, initiated by the State Governor, questioning in particular: (i) art. 1º, caput, and its paragraphs 1º and 2º; (ii) art. 2º, caput and paragraphs 1º and 2º; (iii) art. 15, caput and sole paragraph; (iv) art. 17, caput and its items; and (v) Annexes I, II, V, VI, VII and VIII. The plaintiff points out that the LC reduces the area of the Jaci-Paraná Extractive Reserve and the Guajará-Mirim State Park and, as compensation, creates the Ilha das Flores and Abaitará State Parks, the Bom Jardim and Limoeiro Sustainable Development Reserves, and the Pau D’Óleo Fauna Reserve. In addition, the LC allows the environmental regularization of the property or possession of the owners or possessors in the disused areas of the Extractive Reserve and the State Park. It states that these Conservation Units (UCs) are illegally occupied and deforestation occurs to the detriment of the rights of traditional populations (extractivists and others), being used mainly for livestock farming. The removal of these areas directly impacts the Uru-eu-wau-wau, Karipuna, Igarapé Lage, Igarapé Ribeirão, and Karitina Indigenous Lands, as well as the peoples in voluntary isolation in the surrounding region.

It argues that the reduction in conservation units, by harming environmental protection and contradicting the purpose for which the conservation units were created, violates the right to an ecologically balanced environment and the duty of the public authorities and the community to defend and preserve it for present and future generations. It points out that the creation of new protected areas by the LC is insufficient and an environmental step backwards. In addition, it argues that no hearings were held with the communities affected during the project that resulted in the LC and no technical studies were carried out to remove the areas, which violates the principles of prevention and precaution. It argues that the precautionary measure should be granted because there is a risk of irreversible environmental damage and an imminent risk to the lives of indigenous peoples and traditional populations. It emphasizes that the Jaci-Paraná Extractive Reserve is already the second most deforested area in the Legal Amazon, while the Guajará-Mirim State Park is the ninth most deforested. Finally, it requests, among other things: (i) an injunction suspending the effectiveness of the provisions in question; and (ii) on the merits, a declaration that the provisions are unconstitutional, with the decision to be communicated to the Legislative Assembly to suspend their implementation.

In a monocratic decision, the Reporting Judge, José Jorge Ribeiro da Luz, decided that the Court ruled only on the merits of the action. Since the precautionary measure in the ADI must be granted by an absolute majority of the members of the Court, the time for both would end up being the same. In the same decision, he granted the request for admission as amicus curiae of the Minas Novas Rural Producers Association (ASPRUMIN).

Subsequently, the request for admission as amicus curiae of the Association for Ethno-Environmental Defense (KANINDÉ), the Organization of Indigenous Peoples of the Guarajá-Mirim Region (Oro Wari), Ecoporé Ecological Action (ECOPORÉ), the SOS Amazon Association (SOS Amazônia), and the World Wildlife Fund (WWF-Brazil) was granted. It is noteworthy that, in their amicus curiae briefs, the organizations, in defending the unconstitutionality of LC 1.089/21, pointed out that the rule represents damage to biodiversity, to local traditional and indigenous populations, and to climate stability by summarily acquitting environmental offenders who have occupied and degraded protected areas, receiving the seal of approval from the government. They highlighted the violation of the principles of prevention and precaution, set out in the National Environmental Policy - PNMA (Federal Law 6.938/1981) and the National Policy on Climate Change - PNMC (Federal Law 12.187/2009), as well as the violation of the right to prior, free, and informed consultation of affected indigenous and traditional peoples, in accordance with Convention 169 of the International Labor Organization (ILO). They argued that the reduction of conservation units results in climate damage, violating the right to climate stability provided for in art. 225 of the Federal Constitution, and also argued that there is a failure by the government to implement the PNMC and the State Policy on Climate Governance and Environmental Services - PGSA (State Law 4.437/2018).

A ruling was rendered, in line with the vote of the Reporting Judge, who, by a majority, declared the unconstitutionality of the contested provisions, as well as recognized the unconstitutionality of LC 1.096/2021, which amends the wording of §1 of art. 2 of LC 1.089/2021. The judge concluded that there were no prior studies for the disqualification of the conservation units, in violation of the precautionary principle, the principle of prevention, and the prohibition of environmental retrogression. He stressed that it is the duty of the government to protect the environment, and that the justification for anthropization and degradation in the areas is flawed. He also considered that the principles of ubiquity and intergenerational solidarity had been violated. Judge Miguel Monico Neto, in a dissenting vote, while also recognizing the unconstitutionality of the rules, stressed the need for a structuring measure due to the abuse of the legislative institutional function of the State Governor and the Legislative Assembly. The judge emphasized the importance of the conservation units for protection against the climate emergency and argued that the environmental impacts resulting from new agricultural projects in the area, if the reduction in protected areas was to be implemented, would represent a threat to the environment, water security, the safety of the climate system, soil fertility, atmospheric air, fauna and flora, and the health and lives of present and future generations, as well as the sustainability of agriculture and livestock and the export of state and national products.

An interlocutory appeal (ARE 1417998) was filed against the decision to reject the extraordinary appeal, which was denied admissibility due to the lack of pre questioning and the need to discuss factual matters. The Minas Novas Rural Producers’ Association (Asprumin) was admitted as amicus curiae in the ARE. Subsequently, an interlocutory appeal was filed in the ARE, which was not upheld on the same grounds as the contested decision. State ADI 0804739-62.2021.8.22.0000 (Jaci-Paraná Extractive Reserve and Guajará-Mirim State Park) (Court of Justice of the State of Rondônia, Brazil)

Bulgarian Court Revisits Thermal Power Plant Case Following CJEU Ruling

This case first began in 2019 after the thermal power plant (TPP) Maritsa-Iztok 2 got its integrated permit for operation renewed indefinitely, allowing the plant to release mercury and sulfur oxides above set emissions limits. The Court of First Instance (Administrative Court Stara Zagora) dismissed the case, stating that there is no violation of the Aarhus Convention, even though the operations of the TPP in question have a transboundary effect. The Court also did not find any violations of the national Code of Administrative Procedure or the European Directives on ambient air quality and industrial emissions.

The applicants appealed the judgment before the Administrative Court of Cassation (ACC). The ACC requested a preliminary ruling from the Court of Justice of the European Union (CJEU). The ACC found that there is a discrepancy between the update of the plan for the management of ambient air quality in the municipality of Galabovo, developed for the pollutants particulate matter (PM10) and sulfur dioxide (SO2) for 2019–2023 and the appealed decision of the Executive Director of the Environment Executive Agency. Namely, the reduced desulfurization rates authorized by the Executive Director in the decision at issue are not consistent with the minimum desulfurization rate of 98%. Furthermore, the authorized daily and hourly average rates of SO2 are systematically exceeded, which led, inter alia, to the adoption and update of the plan referred to above and gave rise to the bringing of an action for failure to fulfill obligations in Case C‑730/19, Commission v. Bulgaria. The ACC asked the CJEU three questions relating to the obligations of the competent authorities when considering a request for a derogation from the set emission limit values when reissuing integrated permits.

On March 9, 2023, the CJEU gave its judgment on the preliminary ruling. The CJEU found that a derogation from the set emission limit values may be granted only if less strict emission limit values do not cause “significant pollution” and, in spite of that derogation, a “high level of protection of the environment as a whole” could be achieved. Moreover, the pollution in excess of the air quality limit values for SO2 in the area of the TPP in question cannot be regarded as insignificant pollution, but could objectively be described as “significant pollution.” Thus, a derogation from the set emission limit values could not be granted, if it is such as to contribute to exceeding air quality limit values set by Directive 2008/50 for SO2. Additionally, the competent authority empowered to grant such a derogation must also refrain from setting less strict emission limit values for pollutants originating from an installation where such a derogation would be contrary to the measures established in the air quality plan adopted in the zone concerned.

This judgment comes in a moment when there is talk in Bulgaria of renegotiating the Recovery Plan, which originally envisioned a 40% reduction in thermal power plant emissions and the introduction of more energy from renewable sources. Even though the judgment considers sulfur emissions, its principles could very well be applied to other pollutants that originate from thermal power plants like Maritsa-Iztok 2.

After the CJEU judgment on the preliminary ruling, the case returned to the Bulgarian ACC, which must decide the case on its merits. On July 31, 2023, the ACC issued a judgment, revoking the first-instance judgment of the Administrative Court Stara Zagora. The ACC found substantive violations of the rules of court procedure committed by the Court of First Instance and thus sent back the case to be examined by another division of the Administrative Court Stara Zagora. Association “Za Zemiata (For the Earth) - Access to Justice” and “The Green Tank”, Hellenic Republic v. Executive Director of the Environment Executive Agency, TPP “Maritsa-Iztok 2” EAD (Administrative Court of Cassation, Bulgaria)

 

NEW CASES, MOTIONS, AND OTHER FILINGS

Brazilian Court Addresses Unconstitutional Omission in Combating Amazon Deforestation

This is a Direct Action of Unconstitutionality by Omission (ADO), with a request for a precautionary measure, brought by the Rede Sustentabilidade (Rede) political party, due to the unconstitutional omission of the President of the Republic, Jair Messias Bolsonaro, and the Minister of the Environment, at the time, Ricardo de Aquino Salles. The party claims that the defendants have omitted the task of combating deforestation in the Amazon, failing to comply with the provisions of articles 23, items VI and VII, and 225, caput and §1, items VI and VII, of the Federal Constitution. It presents the growing deforestation of the biome, especially as of 2019. The political party also points out the delegitimization, by the Executive Branch, of the data presented by the Space Research Institute (INPE), which proves the increase in deforestation, even causing the dismissal of the Institute’s head of research and publication, violating the right to transparency. It presents data brought by the non-governmental organization Instituto do Homem e Meio Ambiente da Amazônia (Imazon), that exposed the rampant increase in deforestation that could lead to a “tipping point,” at which the cleared forest could not be recovered, seriously impacting climate change in the region. The case also points out the cuts in financial transfers by other states to the Amazon Fund due to the alleged omission of the Executive Branch.

In addition, it argues that Brazil is failing to comply with objective 15.2 of the United Nations (UN) 2030 Agenda, which refers to combating deforestation by 2020. It claims that this commitment was also made at the national level by Federal Decree 7.390/2010, revoked by Federal Decree 9.578/2018, which provides for an 80% reduction in annual deforestation rates in the Legal Amazon compared to the years 1996 to 2005, a measure that is part of the National Plan on Climate Change.

Among the requests is that: (i) the injunction be granted, ordering the President of the Republic and the Minister of the Environment to promote concrete actions to combat deforestation in the Amazon; (ii) the defendants be ordered to report on the measures adopted to combat deforestation, following the release of the data by INPE; (iii) they be ordered to provide annual data on actions to combat deforestation since 2011; (iv) on the merits, that the injunction be confirmed, and the unconstitutional omission declared in order to order the adoption of administrative measures, in accordance with art. 103, §2, of the Federal Constitution; (v) in the alternative, that the progressive omission be declared unconstitutional to warn the defendants of their omission; and (vi) if the Court finds that the ADO is inappropriate, that this action be received and processed as an Argument for Failure to Comply with a Fundamental Precept (ADPF) due to the fungibility of actions.

Due to the similarity of the objects of this ADO 54 and ADPF 760, the Justice Rapporteur of both, Minister Carmen Lúcia, decided to judge them together. In a plenary session, the Justice acknowledged and upheld the actions. In her vote, the Justice stated that the right to an ecologically balanced environment is a fundamental right provided for in the Constitution and in international treaties to which Brazil is a party. The Minister emphasized the principle of the prohibition of environmental retrogression and considered that there was a process of normative “termite infestation” taking place silently, through the dismantling of the state’s bureaucratic-normative apparatus. This phenomenon is only visible with a general analysis of the existing framework in the country. It recognized the unconstitutional state of affairs regarding the illegal deforestation of the Amazon rainforest. It ordered the resumption of the Action Plan for the Prevention and Control of Deforestation in the Legal Amazon (PPCDAm) by the Federal Union and the competent federal bodies. After the Reporting Justice’s vote, Justice André Mendonça asked to see the case file and so the judgment was suspended. ADO 54 (Amazon Deforestation) (Federal Supreme Court, Brazil)

Brazilian Political Parties File Legal Action to Revoke Environmental Decree

Four political parties (the Brazilian Socialist Party, the Workers Party, the Socialism and Freedom Party, and Network for Sustainability) filed an Argument for Failure to Comply with a Fundamental Precept (ADPF) with a request for a precautionary measure. The aim is to resume the federal environmental sanctioning process. The plaintiffs argue that the federal government has acted to dismantle and weaken the national environmental protection system. They highlight the increase in deforestation and fires in the Amazon and the Pantanal, also affecting indigenous lands, as well as the paralysis of the Action Plan for the Prevention and Control of Deforestation in the Legal Amazon (PPCDAm) and the delegitimization of data relating to these facts by the President of the Republic. They argue that the issuance of Federal Decree 9.760/2019 by the President of the Republic paralyzed the environmental sanctioning process, mainly due to the provision of the conciliation stage in the process and the impossibility of converting fines into environmental services. They point out that the conversion provided for in Federal Law 9.605/1998, which provides for criminal and administrative sanctions for conduct harmful to the environment, is an important institute for fulfilling Brazil’s commitment to the Paris Agreement (enacted by Federal Decree 9.073/2017). They allege that the cases awaiting conciliation hearings have been suspended, while the statute of limitations continues to run.

The plaintiffs argue that the Federal Government could not have amended Federal Law 9.605/1998, introducing a new phase to the sanctioning process, by means of a decree, in addition to the fact that the normative instrument has several inconsistencies. They argue that paralyzing this system violates articles 225, 231 and 23, caput and items VI and VII, of the Federal Constitution, the principles related to due process of law, and the precautionary principle. They request, as a precautionary measure: (i) that Federal Decree 9. 760/2019 be declared unconstitutional and that the environmental sanctioning process be unblocked; (ii) alternatively, that the aforementioned decree be interpreted in accordance with the Constitution, in the terms requested; (iii) if it is understood in a different way to the previous requests, that the counting of the statute of limitations for the processes be suspended until the conciliation hearing takes place; (iv) that the implementation of the requested measures be monitored; (v) that the Federal Government be ordered to submit to the Court a plan for resuming the regular functioning of the environmental sanctioning process; and (vi) that the Federal Government be ordered to refrain from taking any further measures that hinder, make unfeasible, or paralyze the regular progress of the federal environmental sanctioning process. In the final analysis, they request confirmation of the precautionary measures, with the declaration of unconstitutionality of the Federal Decree in question.

Reporting Justice Rosa Weber admitted the Brazilian Association of Members of the Public Prosecutor’s Office for the Environment (ABRAMPA) and the Climate Observatory Laboratory (Observatório do Clima) as amici curiae. In its statement, ABRAMPA highlighted the climate issue and reinforced the points made in the initial petition. She pointed out that the increase in deforestation causes socio-environmental damage and that the land use change and forestry sector is the largest source of GHG emissions in Brazil. She pointed out that encouraging the advance of illegal deforestation aggravates global warming, contrary to international climate commitments and Brazilian climate policy. It therefore argued that the situation violates the fundamental right to an ecologically balanced environment and climate stability. Finally, she emphasized the need for the precautionary measures to be assessed and for a judgment to be made upholding the initial requests. ADPF 755 (Federal environmental sanctioning process) (Federal Supreme Court, Brazil)

Brazilian Political Parties Take Legal Action to Prevent Pantanal Fires

Four political parties (Partido Socialismo e Liberdade - PSOL; Partido Socialista Brasileiro - PSB; Partido dos Trabalhadores - PT; Rede Sustentabilidade) filed an Argument for Failure to Comply with a Fundamental Precept (ADPF) with a request for an injunction against the Federal Union and the states of Mato Grosso and Mato Grosso do Sul. The aim is for the defendants to present a plan for fire management and prevention in the Pantanal and take measures to prevent new fires in the region. The plaintiffs allege that the federal government has been dismantling the policies of environmental protection agencies, which provokes the advance of fires in the Pantanal, including on indigenous lands, as well as failing to present plans to prevent new fires. They discuss the fires that occurred in the region in 2020.

They point out that it is the responsibility of the defendant states, in conjunction with the federal government, to inspect and monitor the outbreaks of fire that occur in disagreement with current legislation. They emphasize the importance of the biome, especially for the water cycle in various Brazilian regions, for the communities that depend on it, and for the control of GHG emissions, as well as for compliance with the National Policy on Climate Change - PNMC (Federal Law 12.187/2009). Thus, the plaintiffs argue that the government’s omission goes against the duties set out in articles 225, 231 and 23, caput and items VI and VII, of the Federal Constitution and the principles of legality, morality, and transparency.

As a precautionary measure, they request, under penalty of fine that: (i) the federal government present an action plan, measures, and Integrated Fire Management (IFM) program to prevent fires in the Pantanal in 2021 and hire firefighters; (ii) the IFM be reviewed and its implementation monitored by the 4th Chamber of Coordination and Review of the Federal Public Prosecutor’s Office (Environment and Cultural Heritage); (iii) the defendant entities be ordered to concentrate information and measures on the fires in a single publicly accessible system; and (v) the presentation of plans and measures to prevent the recurrence of fires in the Pantanal be ordered. In the final analysis, the precautionary measures should be confirmed. ADPF 857 (Pantanal Wildfires) (Federal Supreme Court, Brazil)

Brazilian Environmental Groups Sue Government and Energy Companies over Failure to Meet Climate Targets in Rio Grande do Sul

On July 6, 2023, Instituto Preservar, Associação Gaúcha de Proteção ao Ambiente Natural - AGAPAN and Núcleo Amigos da Terra - Brasil filed a Public Civil Action (ACP) against the Federal Union, Federal Environment Agency (IBAMA), National Electric Power Agency - ANEEL, Companhia de Geração e Transmissão de Energia Elétrica do Sul do Brasil - Eletrobras CGT Eletrosul (SE & UTE Cantiota III), the State of Rio Grande do Sul, Rio Grande do Sul environmental agency (FEPAM), and Companhia Riograndense de Mineração (CRM). The lawsuit seeks to order the defendants to adopt effective measures to comply with the guidelines, deadlines and targets set out in federal and Rio Grande do Sul’s climate laws. The plaintiffs argued that in the period from 2009 to 2023, the federal government, and from 2010 to 2023, the state of Rio Grande do Sul, by action or omission, failed to comply with the legal guidelines and did not meet the deadlines and targets set out in the National Policy on Climate Change (PNMC), the Paris Agreement, and the Rio Grande do Sul’s Policy on Climate Change (PGMC), as there was no effective implementation of instruments such as the Strategic Environmental Assessment (SEA), equal and transparent composition of the Rio Grande do Sul Climate Change Forum (FGMC), and the Brazilian Climate Change Forum, and no measures have been taken to reduce GHG emissions from coal-fired power plants in the state of Rio Grande do Sul, with a Just Energy Transition (TEJ) plan, which results in the ineffectiveness of these climate standards. It is pointed out that the climate crisis has led to water shortages in the municipality of Candiota, which has been recognized by municipal decree and that, in parallel to this situation, the various coal-fired thermoelectric plants in the region use local water for cooling, causing damage to the water system, the biome, and the climate. It is alleged that the defendants have neglected climate policy when dealing with the licensing and renewal of licenses for these projects in the state. At the same time, the Federal Government has encouraged coal-fired thermoelectric projects through energy auctions authorized by ANEEL. CRM, responsible for the Candiota coal mine, and CGT Eletrosul, responsible for the Candiota III Thermoelectric Plant—the most polluting and least efficient plant in the country—have been operating in disregard of environmental climate laws. The plaintiffs argue that it is up to the judiciary, based on the principle of the prohibition of regression and duties of protection, to guarantee effective compliance with the rules in question and prevent the climate scenario from worsening. Furthermore, the entire situation of alleged unlawfulness gives rise to a claim for compensation for collective moral damages.

The plaintiffs make several requests for injunctive relief for the various defendants, so that the defendants’ conduct is brought into line with the environmental climate standards. On the merits, the plaintiffs request that (i) the requests for preliminary injunctions be confirmed, (ii) it be declared that in the period from 2009 to 2023, the Federal Government, and from 2010 to 2023, the state of Rio Grande do Sul, by action or omission, failed to comply with climate standards and did not meet the deadlines and targets set out in the PNMC, the Paris Agreement, and the PGMC, because they did not give effect to the regulations and did not act to reduce GHG emissions from coal-fired thermoelectric plants in the state; (iii) it be declared that Rio Grande do Sul has failed to meet the targets and deadlines set out in international, national, and state regulations; (iv) the court order the following: the suspension of public incentives to exploit coal in the state, the implementation of a TEJ plan for the contested plants, the publication of public notices to finance educational projects and research projects with universities and federal institutes that encourage environmental awareness and the guidelines of the PNMC and PGM, the creation of a working group for the decommissioning and energy transition of coal-fired projects; the suspension and non-renewal of energy sales contracts for the contested plants; (v) ordering the defendants to pay compensation for climate damage; (vi) the court order the federal government and the state of Rio Grande do Sul to bear the costs of the requests made; and (vii) the court order all the defendants to pay the sum of 10 million reais as collective moral damage in environmental and climate matters.

The request for injunctive relief was rejected by the judge, which ruled that the analysis of the claims would require a more in-depth hearing. The judge found that the plaintiffs’ claims were too broad and had high economic, political, and social impacts. In addition, he found that the effects of climate change are recognized by the international community, that the process of adaptation by countries is slower than desirable, and that climate change could cause irreversible damage to the environment and future generations.

CRM contended that all its activities are in line with environmental legislation and that, in accordance with current regulations, it is already drawing up a mine closure plan. Instituto Preservar, AGAPAN and Núcleo Amigos da Terra vs. Federal Union and others (Climate emergency in Rio Grande do Sul state) (Rio Grande do Sul Federal Court, Brazil)