October 2024 Updates to the Climate Case Charts
Each month, the Sabin Center for Climate Change Law collects and summarizes developments in climate-related litigation, which we also add to our U.S. and global 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 #187:
FEATURED CASE
North Dakota Federal Court Enjoined Enforcement of BLM Waste Prevention Rule for Oil and Gas Production on Federal and Tribal Lands
The federal district court for the District of North Dakota enjoined enforcement of the U.S. Bureau of Land Management (BLM) rule on “Waste Prevention, Production Subject to Royalties, and Resource Conservation” rule (Waste Prevention Rule) against North Dakota, Montana, Texas, Wyoming. The court first denied the federal defendants’ motion to transfer to the District of Wyoming, which had reviewed and vacated the 2016 version of the Waste Prevention Rule. The North Dakota court found that venue was proper in the District of North Dakota and that the defendants did not meet their burden to show that transfer was warranted for judicial economy or other reasons. Regarding the plaintiff states’ motion for a preliminary injunction, the court found that the states were likely to succeed on the claim that the 2024 Waste Prevention Rule was arbitrary and capricious. The court stated that the case was “an example of where the left hand of the government does not know what the right hand of the government is doing,” citing the existing Clean Air Act framework for regulating air emissions based on state-federal cooperation. The court found the BLM rule was not “reasonably explained,” including because it did not explain why requiring flaring gas rather than venting was more economically productive, did not explain exemptions to the rule’s flaring requirement, and did not support statements that production and exploration were major sources of wasted gas. Given that it found the rule to be arbitrary and capricious, the court declined to consider the plaintiff states’ argument that rule’s stated purpose was “simply a pretext for BLM’s desire to mandate flaring over venting for climate change purposes.” The court further found that the states demonstrated they would suffer irreparable harm to their sovereign authority and also found that the balance of harms and public interest favored the states. North Dakota v. U.S. Department of Interior, No. 1:24-cv-00066 (D.N.D. Sept. 12, 2024)
In a related case, the Tenth Circuit Court of Appeals denied a petition for rehearing of its order vacating the District of Wyoming’s 2020 decision that held that the 2016 Waste Prevention Rule exceeded the agency’s authority. The Tenth Circuit concluded that vacating the 2020 decision was appropriate since BLM’s repeal of the 2016 rule and promulgation of the 2024 Waste Prevention Rule rendered the appeal of the 2020 decision moot. Wyoming v. U.S. Department of the Interior, No. 20-8072 (10th Cir. Sept. 16, 2024)
DECISIONS AND SETTLEMENTS
U.S. Supreme Court Denied Applications to Stay EPA’s Oil and Gas Sector Methane Regulation; D.C. Circuit Severed Issues from Pending Challenges
On October 4, 2024, the U.S. Supreme Court denied applications for immediate stay of the U.S. Environmental Protection Agency’s (EPA’s) emissions standards and guidelines for the oil and gas sector pending review by the D.C. Circuit Court of Appeals. The stay applications were submitted to Chief Justice Roberts by 23 states and the Arizona Legislature and by oil and gas companies and trade associations. The Chief Justice referred the applications to the Court for determination.
In the D.C. Circuit Court of Appeals, two sets of claims were severed from the main proceeding challenging the regulation. First, the court severed and held in abeyance a petition filed by three environmental organizations; the organizations had sought administrative reconsideration of issues that would overlap with the matters raised in their petition. In addition, the court severed challenges by industry petitioners to two aspects of the rule as to which administrative reconsideration was sought: (1) Vent gas net heating value (NHV) monitoring and alternate sampling demonstration requirements for flares and enclosed combustion devices; and (2) temporary flaring provisions for associated gas in certain situations. Texas v. EPA, No. 24-1054 (D.C. Cir. Sept. 4, 2024)
Ninth Circuit Partially Remanded Challenge to Application of Categorical Exclusion to Commercial Logging Projects
In an unpublished memorandum, the Ninth Circuit Court of Appeals affirmed a district court’s determination that the U.S. Forest Service did not act arbitrarily and capriciously when it approved three commercial logging operations in the Fremont-Winema National Forest under a categorical exclusion from National Environmental Policy Act (NEPA) review. However, the Ninth Circuit vacated the district court’s ruling that a claim that the application of the categorical exclusion violated NEPA itself was time-barred. The Ninth Circuit directed the district court to apply the Supreme Court’s recent decision in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, which the Ninth Circuit said likely abrogated Ninth Circuit precedent holding that challenges to procedural violations in adoption of a regulation or agency action must be brought within six years of the agency rulemaking. The categorical exclusion under which the Forest Service approved the three projects was adopted in 1992. Environmental groups alleged that if the three projects—which included 16,000, 10,000, and 3,000 acres of commercial logging—qualified for categorical exclusion, the categorical exclusion violated NEPA and its implementing regulations. The plaintiffs alleged that projects that involve commercial logging operations inherently result in more significant environmental effects, including release of stored carbon. Oregon Wild v. U.S. Forest Service, No. 23-35579 (9th Cir. Sept. 25, 2024)
Second Circuit Affirmed Dismissal of Greenwashing Securities Action Against Bioplastic Manufacturer
The Second Circuit Court of Appeals agreed with a district court that a securities fraud class action alleging misleading or false statements regarding the biodegradability of a biotechnology company’s bioplastic compound failed to adequately plead scienter against any defendants. The plaintiff’s complaint cited a scientific article that found that landfill disposal of polyhydroxyalkanoate-based products like the defendant company’s product harmed the environment due to the release of methane. In a summary order affirming dismissal of the lawsuit, the Second Circuit first found that there was no allegation that the defendant chief executive officer was aware of a statement by the company’s chief technology officer that representations that the product would be consumed by bacteria in a landfill were not “wholly accurate.” Second, the appellate court found that the plaintiff’s assertions that the product was part of the company’s “core operations” and that senior executives’ knowledge should be inferred were insufficient to raise a strong inference of scienter. Third, the Second Circuit rejected the plaintiff’s arguments that the defendants “concrete and personal motivations” were sufficient to demonstrate scienter. Fourth, the Second Circuit agreed with the district court that the plaintiff’s allegations “collectively do not raise a strong enough inference of scienter required to state a claim.” The court further found that the plaintiff failed to plead corporate scienter or control-person liability. The Second Circuit declined to reach the issue of whether the plaintiff sufficiently pleaded that the defendants’ statements were materially misleading. Swanson v. Danimer Scientific, Inc., No. 23-7674-cv (2d Cir. Sept. 27, 2024)
Tennessee Federal Court Rejected Challenges to TVA’s Climate-Related Impacts Analyses in NEPA Review of New Natural Gas-Fired Units
The federal district court for the Middle District of Tennessee ruled that the Tennessee Valley Authority (TVA) complied with the National Environmental Policy Act (NEPA) and Administrative Procedure Act when it issued a finding of no significant impact (FONSI) for a project that involved construction of 10 “highly efficient” natural gas combustion turbine units to replace older combustion turbines at a facility in Johnsonville, Tennessee. Regarding TVA’s consideration of greenhouse gas emissions, the court found that TVA’s no-action alternative analysis had properly included other events that might occur—including increased output at other TVA facilities—if the project did not occur. The court also found that TVA adequately considered potential impacts on upstream methane emissions in the gas supply chain and the project’s total greenhouse gas emissions. The court also deferred to TVA’s technical expertise in its choice of methodologies. In addition, the court found that TVA’s analysis of cumulative effects on greenhouse gas emissions was sufficient. The court also upheld TVA’s alternatives analysis, rejecting an argument that TVA should have considered an alternative proposed by the plaintiff that included solar, battery storage, and demand response. The court also rejected the contention that TVA was required to examine whether the project would meet climate goals set out in executive orders issued by President Biden. Sierra Club v. Tennessee Valley Authority, No. 3:22-cv-01054 (M.D. Tenn. Sept. 30, 2024)
California Federal Court Stayed Consideration of California Locomotive Emissions Regulation Pending EPA Review
The federal district court for the Eastern District of California stayed an action challenging California’s In-Use Locomotive Regulation, which sets emissions standards for locomotives operating in California. The court concluded that the primary jurisdiction doctrine required the court to stay consideration of claims that the regulation was preempted by the Interstate Commerce Commission Termination Act or violated the dormant Commerce Clause pending the U.S. Environmental Protection Agency’s review of the regulation to determine which portions require EPA authorization and whether to authorize those portions for which EPA authorization would be required. The court also ruled that the plaintiffs did not have standing to challenge certain aspects of the regulation that concerned idling requirements. Association of American Railroads v. Randolph, No. 2:23-cv-01154 (E.D. Cal. Sept. 30, 2024)
Alaska Federal Court Said National Marine Fisheries Service Failed to Justify Expansiveness of Critical Habitat Designation for Bearded and Ringed Seals
The federal district court for the District of Alaska vacated final rules designating over 160 million acres of Alaska’s coastal waters as critical habitat under the Endangered Species Act for the Beringia distinct population segment of the bearded seal and for the Arctic ringed seal. The court agreed with the State of Alaska that the National Marine Fisheries Service (NMFS) acted arbitrarily and capriciously because the agency “failed to articulate a satisfactory explanation for why the entirety of the designated areas in U.S. territory are indispensable to the seals’ survival and recovery,” “failed to consider any foreign nation efforts to conserve the seals,” and failed to consider the economic benefits of excluding some areas from critical habitat. The court found, however, that NMFS adequately explained its identification of areas where dynamic sea ice essential features would be found and adequately determined that essential habitat features might need special management considerations or protections from the potential threats of climate change, oil and gas exploration, marine shipping and transportation, and commercial fisheries. In addition, the court rejected the argument that the Endangered Species Act or its regulations required “an express prudency determination” for critical habitat designations. Alaska v. National Marine Fisheries Service, No. 3:23-cv-00032 (D. Alaska Sept. 26, 2024)
Defendant Pleaded Guilty in Connection with Illegal Importation of HFCs
A San Diego resident pleaded guilty in the federal district court for the Southern District of California to one count of conspiracy to violate the Clean Air Act by illegally importing hydrofluorocarbons (HFCs) and hydrochlorofluorocarbons into the United States. HFCs are greenhouse gases that under the American Innovation and Manufacturing Act of 2020 (AIM Act) may not be imported without issuance of an allowance by the U.S. Environmental Protection Agency. The U.S. Attorney’s Office for the Southern District of California said the case was the first prosecution under the AIM Act. Sentencing was scheduled for December 9, 2024. The maximum sentence is five years in prison, a $250,000 fine, a mandatory special assessment of $100, and supervised release for up to three years. The defendant agreed to pay restitution of $1,500 for the cost of disposal of the refrigerants. United States v. Hart, No. 3:24-cr-00383 (S.D. Cal. Sept. 24, 2024)
Sanctions Imposed on Plaintiff’s Attorney in Climate Washing Case Against KLM
The federal district court for the Southern District of New York imposed sanctions on an attorney who represented a consumer in a class action alleging that the Dutch airline KLM misrepresented its commitment to achieving carbon emissions targets. The court found that the attorney acted in bad faith by continuing to pursue the plaintiff’s claims after receiving “clear notice” in KLM’s motion to dismiss that central allegations regarding the plaintiff’s reliance on the airline’s representations were false. The court awarded KLM excess costs, expenses, and attorneys’ fees incurred after the motion to dismiss was filed. The court also imposed a $1,000 fine. Dakus v. Koninkluke Luchtvaart Maatschappij, N.V., No. 1:22-cv-07962 (S.D.N.Y. Sept. 23, 2024)
South Carolina Federal Court Denied Preliminary Injunction in Challenge to Charleston Development
The federal district court for the District of South Carolina declined to block a developer from proceeding with plans for a multi-use project on a 9,076-acre property in the City of Charleston and Berkeley County. The court found that the plaintiffs did not show a substantial likelihood of success on their claims that the U.S. Army Corps of Engineers acted arbitrarily and capriciously by failing to prepare an environmental impact statement (EIS) in connection with its issuance of a Clean Water Act permit for the development and by relying on a biological opinion and incidental take statement prepared by the U.S. Fish and Wildlife Service. The plaintiffs’ arguments included that there were numerous potential significant effects that would result from the project, including “placement of 45% of housing acreage within the 100-year floodplain while Charleston already struggles with rising seas.” The court said the environmental assessment had provided “considerable discussion” of the project’s impacts on land and surrounding communities and found that the plaintiffs did not show “clear entitlement” to relief on their claim that the failure to prepare an EIS was arbitrary and capricious. South Carolina Coastal Conservation League v. U.S. Army Corps of Engineers, No. 2:22-cv-02727 (D.S.C. Sept. 19, 2024)
In Lawsuit to Require Permit for Dolphin Incidental Take, Federal Court Said Future Injury from Mississippi River Diversions Was Too Speculative for Standing
The federal district court for the Southern District of Mississippi ruled that local governments and organizations representing the lodging and tourism and commercial fishing industries did not have standing for their lawsuit asserting that the U.S. Army Corps of Engineers was required to apply for an incidental take permit under the Marine Mammal Protection Act for operation of the Bonnet Carré Spillway, which the Corps uses to divert water from the Mississippi River to protect the City of New Orleans from “overwhelming” floods. The plaintiffs alleged that the freshwater diversions had adverse impacts on environmental and economic interests in the Mississippi Sound area and resulted in “take” of the bottlenose dolphin. The court found that “[t]he possibility of future harm claimed by Plaintiffs is too speculative to constitute an injury-in-fact for Article III standing purposes,” and also that it was unlikely that the plaintiffs could establish causation and redressability since their claims would “hinge” on the actions by a third party, the National Marine Fisheries Service. In their attempt to establish future injury, the plaintiffs cited the 2023 Fifth National Climate Assessment and other sources to support their argument that increased flooding was expected that, in combination with recent Spillway openings that resulted in dolphin take, made their claims more than speculative. The court agreed with the Corps that the frequency and length of Spillway openings and the harm such openings would pose to dolphins was “unpredictable” and insufficient to establish standing. Harrison County v. U.S. Army Corps of Engineers, No. 1:24-cv-00021 (S.D. Miss. Sept. 19, 2024)
Federal Court Said Consideration of Oil and Gas Project’s Impacts on Groundwater Was Deficient
In a lawsuit challenging the U.S. Bureau of Land Management’s (BLM’s) approval of the Converse County Oil and Gas Project, the federal district court for the District of Columbia ruled that BLM’s consideration of groundwater impacts in the environmental impact statement for the project was inadequate. The project covers approximately 52,667 acres of BLM-administered surface and federal mineral estate in Wyoming and would result in the drilling of approximately 5,000 wells over 10 years. The court’s decision did not address the plaintiffs’ arguments regarding deficiencies in the analysis of impacts on cumulative greenhouse gas emissions and the failure to consider all reasonable alternatives, including a greenhouse gas reduction alternative. The court ordered additional briefing on remedy and enjoined approvals of applications for permits to drill until a ruling on remedy. Powder River Basin Resource Council v. U.S. Department of the Interior, No. 1:22-cv-02696 (D.D.C. Sept. 13, 2024)
Fish and Wildlife Service Proposed Endangered Listing for Black Creek Crayfish Seven Months After Filing of Lawsuit
After the U.S. Fish and Wildlife Service (FWS) proposed to list the Black Creek crayfish as an endangered species and proposed the designation of critical habitat, Center for Biological Diversity voluntarily dismissed with prejudice the lawsuit it filed to challenge a 2021 determination that listing was not warranted. Center for Biological Diversity alleged that the crayfish, which lives only in the Lower St. Johns River Basin in northeastern Florida, was “highly imperiled” due to threats that included sea level rise and severe weather events and that FWS had discounted the threat of climate change-induced weather events in its 2021 decision. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 1:24-cv-00457 (D.D.C. Sept. 16, 2024)
Federal District Court Dismissed Nondelegation Challenge to AIM Act’s HFC Cap-and-Trade Program
The federal district court for the Northern District of Georgia found that it lacked subject matter jurisdiction to hear a constitutional challenge to the American Innovation and Manufacturing Act (AIM Act), which requires a phasedown of production and consumption of HFCs through a cap-and-trade program in which the number of government-issued allowances for HFC production or consumption decrease over time. A seller of a hydrofluorocarbon (HFC)-based refrigerant alleged that the AIM Act violated the Constitution because it “fails to provide an intelligible principle as to how an executive agency is to identify allowance recipients or to distribute allowances among recipients, resulting in the transfer of legislative power to the Executive Branch” in violation of the nondelegation doctrine. The district court concluded that the Clean Air Act required challenges to U.S. Environmental Protection Agency action under the AIM Act to be filed in the courts of appeals and rejected the seller’s argument that it was not challenging a final agency action. RMS of Georgia, LLC v. EPA, No. 1:23-cv-04516 (N.D. Ga. Sept. 3, 2024)
Federal Court Set Schedule for EPA Response to North Dakota Attorney General’s FOIA Request Regarding Power Sector Climate Strategy
In a Freedom of Information Act (FOIA) lawsuit brought by the North Dakota Attorney General against the U.S. Environmental Protection Agency (EPA) seeking documents and communications regarding “EPA’s power sector climate strategy” and related topics, the federal district court for the District of North Dakota dismissed as moot the Attorney General’s motion for a preliminary injunction and set a schedule for EPA’s response based on information provided by EPA as to its anticipated rate of production. EPA reported that its search for records responsive to three of the Attorney General’s four requests had returned 9,269 potentially responsive records, and that additional records might be identified in response to the fourth request. The court directed EPA to continue with review of at least 825 records per month and directed the parties to confer to attempt to narrow the search. The court ordered the parties to provide the court with written status reports every two months. Wrigley v. EPA, No. 1:24-cv-00129 (D.N.D. Aug. 14, 2024)
Massachusetts High Court Again Rejected Challenge to Proposed Substation that Petitioners Said Faced Climate-Related Flood Risks
The Massachusetts Supreme Judicial Court affirmed the Energy Facilities Siting Board’s certificate of environmental impact and public interest for a proposed electric substation in the East Boston section of Boston. The certificate allowed the applicant to proceed without local approvals based on “undue delay” caused by two Boston agencies, each of which refused to act until the other granted approval during an earlier appeal in which the Supreme Judicial Court upheld the Board’s approval of the relocation of the proposed substation. In its decision upholding the certificate, the Supreme Judicial Court concluded that the local agencies’ “stalemate” provided a “sufficient basis” for the Board to find that the applicant met the “undue delay” threshold for considering the merits of the certificate petition. The court also rejected arguments that the Board misinterpreted and misapplied environmental justice provisions of the Next-Generation Roadmap Act as well as challenges to the equivalent of a tidelands license. In addition, the court upheld the Board’s findings that the substation was needed to meet energy requirements; was compatible with “considerations of environmental protection, public health and public safety”; and was in the public interest. Regarding environmental protection, public health, and public safety, the court noted that the earlier appeal had explored these issues “extensively,” including the issue of sea level rise. The court noted that in considering the certificate application, the Board “undertook a fresh look,” which included reviewing new testimony from the petitioners’ expert witness regarding potential vulnerability to climate change-related flooding and two new reports on sea level rise. The court found that the Board explained why the new reports supported its previous conclusions regarding flood risk and also explained its rejection of the petitioners’ proposal to use a “worst case” storm surge projection. The court ruled that the Board did not abuse its discretion by concluding that the new evidence did not warrant changing its findings. Conservation Law Foundation v. Energy Facilities Siting Board, No. SJC-13521 (Mass. Sept. 11, 2024)
South Dakota High Court Questioned Whether Sequestered Carbon Dioxide Had Productive Use
Reversing circuit courts, the South Dakota Supreme Court found that it was premature to determine that the developer of a planned pipeline network to transport carbon dioxide (CO2) to a carbon sequestration site in North Dakota was a common carrier with the power of eminent domain. The court found that the record did not demonstrate as a matter of law that the developer—SCS Carbon Transport, LLC (SCS)—was holding itself out to the general public as transporting a commodity for hire. The court said that factual disputes remained, including as to whether SCS took ownership of the carbon dioxide to be transported (and would thus be a private carrier). The court found, moreover, that the existing record suggested that “CO2 is being shipped and sequestered underground with no apparent productive use” and therefore would not qualify as a commodity. The court noted SCS’s argument that stored CO2 has value because of carbon-offset markets and federal subsidies. The court further noted that the record suggested “the economic item of value at play here may be the tax credit generated by the sequestration of the CO2, a determination which is driven by federal energy policies.” The court also noted that legislatures in other states had been responsible for policy decisions that CO2 was a commodity due to its potential industrial applications. The court said it was “unwilling to make such a significant determination” here based on the undeveloped record, “particularly one that is heavily bound up in policy considerations.” In addition to its decision regarding the common carrier questions, the court found that the South Dakota landowners who challenged the developer’s exercise of eminent domain powers were entitled to discovery. The court also found that a South Dakota law that authorized pre-condemnation surveys should be narrowly construed to permit “only minimally invasive superficial inspections” and that the law, if narrowly construed, would not violate federal or state constitutions. Betty Jean Strom Trust v. SCS Carbon Transport, LLC, Nos. 30317, 30338 (S.D. Aug. 26, 2024)
California Appellate Court Rejected Challenge to Greenhouse Gas Emissions Baseline in CEQA Review of Mining Project
The California Court of Appeal affirmed the denial of a challenge to Yolo County’s California Environmental Quality Act (CEQA) review and approval of a plan to mine sand and gravel. The arguments rejected by the appellate court included a contention that the environmental impact report (EIR) improperly included criteria pollutant and greenhouse gas emissions from the applicant’s existing mining and processing operations at other sites in the baseline against which the proposed project’s impacts were evaluated. The appellate court found that the EIR’s use of actual, existing emissions at the time of the notice of publication of the EIR was proper and found that the parties challenging the EIR did not establish abuse of discretion with their argument that the permits for the other operations could not be transferred when those operations ceased in 2028 or when the maximum amount of removal was reached. Yolo Land & Water Defense v. County of Yolo, No. C099086 (Cal. Ct. App. Sept. 13, 2024)
California Superior Court Found that CEQA Review for Industrial Rezoning Improperly Analyzed Greenhouse Gas Reduction Measures
A California Superior Court found that San Bernardino County violated CEQA in its environmental review of the rezoning of residential areas for industrial and business park uses and higher-density residential use. Regarding greenhouse gas emissions, the court rejected the petitioners’ contentions that the EIR’s traffic impact assessment understated greenhouse gas emissions due to undercounting trucks but agreed with the petitioners that the County “improperly compressed impact and mitigation measure analysis into a single issue.” The court found that the EIR was “inherently inconsistent” because it found that greenhouse gas emissions impacts were less than significant due to the proposed actions’ inclusion of features that resulted in greenhouse gas reductions without showing that the features were binding and enforceable while at the same time treating the features as mitigation measures. The court also found that the this “inherently contradictory” discussion made the discussion inadequate as a CEQA disclosure document. Other CEQA violations included a failure to sufficiently address renewable energy resources in considering whether there would be “wasteful, inefficient, or unnecessary consumption of energy resources,” including energy for transportation. The court further found that the cumulative energy impacts analysis was deficient. People’s Collective for Environmental Justice v. County of San Bernardino, No. CIVSB2228456 (Cal. Super. Ct. Sept. 17, 2024)
Court Dismissed Portland’s Lawsuit Against Reporter Who Sought Information About Payments for Clean Energy Fund
On September 10, 2024, the Multnomah County Circuit Court dismissed a lawsuit brought by the City of Portland against Oregon Public Broadcasting (OPB) and its climate reporter in which the City sought declarations that information regarding payments into the Portland Clean Energy Community Benefits Fund (PCEF) was exempt from disclosure under the Oregon Public Records Law. The PCEF is funded by a 1% surcharge on large retailers in Portland, with funds invested in community-led projects “to reduce carbon emissions, create economic opportunity, and help make our city more resilient as we face a changing climate.” After the City denied the reporter’s request for the names of businesses that paid into the PCEF in 2022 and the amount paid by each business, the Multnomah County District Attorney ordered the City to produce the names and amounts but in a format in which individual business names were not associated with amounts. In its announcement of the court’s ruling, OPB said the ruling supported OPB’s “unwavering belief that local public bodies should not sue requesters.” OPB reported that both sides filed motions to dismiss the case after the lawsuit led to passage of a state law that required local governments to apply the same confidentiality to tax records that was applied to State tax information. City of Portland v. Oregon Public Broadcasting, No. 24CV03431 (Or. Cir. Ct. Sept. 10, 2024)
After Court Said California Law Preempted Los Angeles Oil Drilling Ban, Governor Signed Law Authorizing Local Restrictions on Oil and Gas Production
On September 6, 2024, a California Superior Court ruled that state law preempted the City of Los Angeles’s ban on new oil drilling. The Los Angeles ordinance also required the discontinuance of existing drilling operations after 20 years. The court found that the Los Angeles ordinance and related guidance “contradict and are implicitly limited by” Public Resources Code § 3106. The court cited a California Supreme Court opinion holding that Section 3106 preempted a local measure prohibiting certain oil production methods altogether because the provision expressly provides that the State Oil and Gas Supervisor “shall approve” all production methods that they deem suitable for “increasing the ultimate recovery of underground hydrocarbons.” The Superior Court further found that the home rule doctrine did not apply to the ordinance because Section 3106 addressed a matter of statewide concern and was “an appropriately tailored means to further the State’s interest in protecting the environment and health of citizens while meeting the energy needs of the State.” On September 25, Governor Gavin Newsom signed AB 3233, which gave localities greater authority to restrict oil and gas operations. Warren E&P, Inc. v. City of Los Angeles, No. 23STCP00060 (Cal. Super. Ct. Sept. 6, 2024)
North Carolina Court Allowed Timberlands Buyer to Proceed with Indemnification Claim for Alleged Overstatement of Property’s Carbon Stocks
A North Carolina Superior Court denied a motion to dismiss indemnification claims brought by companies that purchased West Virginia timberlands from the defendant. The property was enrolled as a carbon project in the California cap-and-trade program, and the plaintiffs alleged that the California Air Resources Board (CARB) had issued carbon offset credits worth more than $50 million for the timberlands. The plaintiff companies alleged that the defendant overstated the carbon stocks on the property in the initial inventory submitted to CARB, which the plaintiffs allegedly discovered when they conducted an updated carbon inventory of the property in preparation for a seven-year reverification report. The plaintiffs alleged they had or would incur costs that included costs to purchase carbon offsets as well as costs to manage the property based on lower carbon stocking. The court found that the plaintiffs offered a plausible interpretation of indemnification provisions as applying to any overstatement by the seller of carbon deposits in its initial inventory, which occurred prior to the closing date. Because “explicit contractual provisions” governed the circumstances under which indemnification was available, the court dismissed the plaintiffs’ unjust enrichment claim. LFF IV Timber Holding LLC v. Heartwood Forestland Fund IV, LLC, No. 23 CV 001176 (N.C. Super. Ct. Sept. 6, 2024)
Montana District Court Said Public Service Commission’s Response to Climate Rulemaking Petition Was Sufficient
News outlets reported that on September 11, 2024, a Montana district court ruled against organizations that sought to compel action by the Montana Public Service Commission (PSC) in response to their February 2024 petition requesting that the PSC initiate rulemaking to consider harmful climate change impacts in the regulation of public utilities. KTVH reported that the judge concluded that the PSC complied with state law by commencing an informal rulemaking process in which it was taking comments on the petition. Families for a Livable Climate v. Montana Department of Public Service Regulation, No. DV-32-2024-0000525-WM (Mont. Dist. Ct. Sept. 13, 2024)
Connecticut Court Upheld Denial of Approvals for Development that Local Agency Found Would Have Adverse Effects on Coastal Resources
A Connecticut Superior Court upheld the Madison Planning & Zoning Commission’s denial of a special exception permit and coastal site plan review application for a proposed seven-unit cluster development. The Commission denied the applications on remand from an appeal of a previous decision approving the development. In its earlier decision, the court directed the Commission to consider the effects of the proposed septic system on coastal resources on remand. One of the reasons for denial of the coastal zone site plan review application on remand was the Commission’s conclusion that the proposed development posed “unacceptable potential adverse effects on preservation of the coastal resources especially in the context of sea level rise and coastal flooding.” The court rejected the developer’s contention that the Commission exceeded the scope of remand and instead found that the Commission had properly followed the court’s remand. The court declined to consider the developer’s claim of political bias, finding that any such argument should have been brought in a separate appeal. Downes v. Madison Planning & Zoning Commission, No. CV-21-6116048-S (Conn. Super. Ct. Sept. 20, 2024)
California Appellate Court Rejected Challenge to Advanced Clean Trucks Regulation by Proponents of Natural Gas as Alternative Fuel
The California Court of Appeal rejected the California Natural Gas Vehicle Coalition’s claims that the California Air Resource Board (CARB) did not comply with the California Environmental Quality Act (CEQA) and the Administrative Procedures Act (APA) when it promulgated the Advanced Clean Trucks Regulation, which focused on a transition to electric vehicles. The Coalition argued that CARB failed to properly consider a low-NOx vehicle credit option as an alternative to the Regulation or as a mitigation measure under CEQA. Under the APA, the Coalition also argued that CARB should have considered the low-NOx vehicle credit as an alternative as well as that CARB failed to consider the Regulation’s impacts on businesses that had invested in the low-NOx industry. CARB’s analysis noted that low-NOx engines did not achieve greenhouse gas emissions and would not advance California’s long-term transportation strategy. California Natural Gas Vehicle Coalition v. State Air Resources Board, No. F084229 (Cal. Ct. App. Aug. 27, 2024)
NEW CASES, MOTIONS, AND OTHER FILINGS
Juliana Plaintiffs Asked Supreme Court to Intercede to Revive Case
The youth plaintiffs in Juliana v. United States filed a petition for writ of mandamus in the U.S. Supreme Court asking the Court to determine whether the Ninth Circuit exceeded its jurisdiction when it granted the federal government’s petition for a writ of mandamus and directed the district court to dismiss the plaintiffs’ lawsuit. The plaintiffs argued that the Ninth Circuit failed to apply three conditions prescribed by the Supreme Court for determining whether a writ of mandamus may issue and that, in doing so, the Ninth Circuit “divested the district court of its inherent discretion … to grant leave to amend and review thereof under an abuse of discretion standard” and denied the plaintiffs “any right of appellate review of their amended complaint.” The plaintiffs contended that they were entitled to a writ of mandamus because their petition satisfied the three conditions: (1) their right was “clear and indisputable” because the Ninth Circuit had deprived them of rights under federal court rules; (2) they had no other right of appeal; and (3) granting the writ was appropriate to correct the “exceptional circumstances” of the Ninth Circuit panel’s disruption of the judicial hierarchy. In re Juliana, No. 24-298 (U.S. Sept. 12, 2024)
Supreme Court Invited Brief from Solicitor General on 19 States’ Request that Court Block Other States’ Climate Lawsuits Against Energy Companies
On October 7, 2024, the U.S. Supreme Court invited the Solicitor General to submit a brief expressing the views of the United States on the motion filed by Alabama and 18 other states in May 2024 for leave to file a bill of complaint against five states that are pursuing climate change lawsuits against energy companies. In their motion, the plaintiff states contended that the lawsuits “threaten not only our system of federalism and equal sovereignty among States, but our basic way of life.” The plaintiff states argued that the Court should exercise its original jurisdiction because there no alternative forum in which they could seek relief. Alabama v. California, No. 158 (U.S. Oct. 7, 2024)
U.S. Attorney Announced Indictments and Guilty Plea in Alleged Carbon Credit Fraud Scheme
The U.S. Attorney for the Southern District of New York and the Assistant Director in Charge of the New York Field Office of the Federal Bureau of Investigation announced the unsealing of an indictment charging two individuals in connection with a “scheme to commit fraud in the multi-billion-dollar global market for buying and selling carbon credits.” The individuals’ company ran projects to generate carbon credits, including projects to install cookstoves in rural Africa and Southeast Asia. The individuals allegedly submitted false and misleading data to an issuer of voluntary carbon credits and deceived an investor into agreeing to invest up to $250 million in the company. The grand jury charged the defendants with counts of conspiracy to commit wire fraud, wire fraud, conspiracy to commit commodities fraud, commodities fraud, conspiracy to commit securities fraud, and securities fraud. The U.S. Attorney also announced a guilty plea by the company’s chief operations officer to charges of wire fraud conspiracy, commodities fraud conspiracy, and securities fraud conspiracy. United States v. Newcombe, No. 24-cr-567 (S.D.N.Y. Oct. 2, 2024); United States v. Steele, No. 1:24-cr-00572 (S.D.N.Y. Oct. 2, 2024)
The Commodity Futures Trading Commission (CFTC) filed a separate civil complaint against one of the criminal defendants, who was the founder and chief executive officer of the company. The complaint asserted that the defendant violated the Commodity Exchange Act and CFTC regulations by engaging in fraud in connection with contracts of sale of voluntary carbon credits. The allegedly fraudulent conduct included reporting false, misleading, or inaccurate information to a carbon credit registry, validation and verification bodies, and others, including data regarding energy saved and emissions reductions achieved by offset projects. The CFTC sought injunctive relief, disgorgement, restitution, and civil penalties. Commodity Futures Trading Commission v. Newcombe, No. 1:24-cv-07477 (S.D.N.Y., filed Oct. 2, 2024)
Challenges Filed to LNG Export Terminal in Louisiana
Two petitions for review were filed in the D.C. Circuit Court of Appeals challenging a Federal Energy Regulatory Commission (FERC) order authorizing the CP2 LNG liquefied natural gas (LNG) export terminal project in Cameron Parish, Louisiana, and the CP Express Pipeline Project, which would include an 85.4-mile-long pipeline from Jasper County, Texas, to the CP2 LNG project. On September 23, the petitioners filed a joint motion to stay FERC’s order pending appeal. They argued that FERC’s NEPA analysis repeats many errors that the D.C. Circuit identified in recent decisions concerning other projects, including errors in the analysis of greenhouse gas emissions. The petitioners also argued that FERC’s determination of market need and public benefit under Section 7 of the Natural Gas Act was arbitrary and contrary to law and that FERC “independently failed to consider the serious and well-documented harms on the other side of the scale,” including impacts on recreational and commercial fishing, landowners, and environmental justice communities. Dardar v. Federal Energy Regulatory Commission, No. 24-1291 (D.C. Cir., filed Sept. 4, 2024)
Organizations Claimed BLM Logging Project in Oregon “Old-Growth” Forest Would Violate NEPA and FLPMA
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) Blue and Gold Harvest Plan, which the organizations alleged would include “up to eight years of logging on approximately 3,237 acres of BLM-administered lands” in Douglas County, Oregon. The organizations alleged that the project area included “large, contiguous, unlogged, mature and old-growth forest.” The plaintiffs asserted that logging would irreparably damage these “incredibly rare” forests by converting them into “plantations designed to be logged in perpetuity,” which would “eliminate carbon stores and exacerbate wildfire risk and hazards in the region.” They asserted claims under the National Environmental Policy Act (NEPA) and the Federal Land Policy and Management Act (FLPMA). The plaintiffs claimed that BLM failed to ensure the project was consistent with the governing resource management plan’s directions regarding old-growth forests and endangered species. The plaintiffs also claimed that an environmental impact statement should have been prepared and that BLM failed to take a hard look at the project’s effects, including impacts on carbon storage, greenhouse gas emissions, and climate change. The also alleged that BLM did not account for federal policy directives to calculate and disclose the social cost of greenhouse gas emissions associated with agency action and to conserve mature and oil-growth forests. Cascadia Wildlands v. U.S. Bureau of Land Management, No. 6:24-cv-01641 (D. Or., filed Sept. 27, 2024)
Conservation Groups Challenged Supplemental Analysis for Oil and Gas Leases
Conservation groups filed an amended petition challenging the reissuance by the U.S. Bureau of Land Management (BLM) of 32 oil and gas lease parcels and BLM approval of at least eight drilling permits on public lands in New Mexico. In July 2024, BLM issued a supplemental environmental assessment and reissued a finding of no significant impact for the challenged leases to cure deficiencies that the Tenth Circuit Court of Appeals identified in a different case in 2023 (Diné CARE v. Haaland). The deficiencies identified by the Tenth Circuit included inadequate analysis of greenhouse gas emissions from oil and gas drilling. In their amended petition, the conservation groups alleged that the supplemental analysis still failed to take the hard look required by NEPA, including impacts from greenhouse gas emissions and climate. Citizens Caring for the Future v. Haaland, No. 2:23-cv-00060 (D.N.M. Sept. 18, 2024).
Lawsuit Filed to Compel Listing Determination on Hippopotamus
Four organizations filed a lawsuit asking the federal district court for the District of Columbia to order the U.S. Fish and Wildlife Service (FWS) to issue a 12-month finding under the Endangered Species Act on the plaintiffs’ March 2022 petition to list the common hippopotamus as endangered or threatened. The organizations alleged that the FWS in March 2023 made a determination that listing might be warranted due to potential threats including climate change but had yet to make the 12-month findings more than two years after the petition was submitted. Humane Society International v. Haaland, No. 1:24-cv-02717 (D.D.C., filed Sept. 24, 2024)
Texas Challenged Endangered Listing of Dunes Sagebrush Lizard
The State of Texas filed a lawsuit in the federal district court for the Western District of Texas to challenge the listing of dunes sagebrush lizard as endangered under the Endangered Species Act. The complaint’s allegations included that “best available data” did not proved “a non-speculative basis to predict any real, predictable, or measurable impacts that may or may not be associated with climate change risks on the Lizard’s habitat.” Texas v. U.S. Department of the Interior, No. 7:24-cv-00233 (W.D. Tex., filed Sept. 23, 2024)
Lawsuit Challenged Plan for Climate “Refugia” for Bull Trout in Glacier National Park
Friends of the Wild Swan and Council on Wildlife and Fish filed a lawsuit in the federal district court for the District of Montana challenging the National Park Service’s Westslope Cutthroat and Bull Trout Preservation in Gunsight Lake Project, which the Park Service intended to be a “refugia” in Glacier National Park to create a habitat for bull trout “secure from the threats of hybridization and climate change.” The plaintiffs alleged that the U.S. Fish and Wildlife Service violated the Endangered Species Act and Administrative Procedure Act by issuing a letter of concurrence approving the project, which they alleged would result in taking of threatened bull trout. The plaintiffs also alleged that the Park Service failed to take a hard look at the project’s environmental impacts in violation of NEPA. The plaintiffs alleged that the Bureau of Reclamation was already addressing the main obstacle to the bull trout’s recovery with a separate dam project, which the plaintiffs contended meant that the Park Service’s project might not even aid recovery. Friends of the Wild Swan v. Hammond, No. 9:24-cv-00128 (D. Mont., filed Sept. 16, 2024)
Third Challenge to Hoosier National Forest Project Alleged Failure to Contend with Impacts to Old-Growth Forest
The Monroe County Board of Commissioners and three environmental organizations filed a third lawsuit challenging the U.S. Forest Service’s Houston South Vegetation Management and Restoration Project, which the plaintiffs alleged would entail “thousands of acres of commercial logging, road building and trail improvements, herbicide application, and prescribed burning over the next 15-20 years in the Hoosier National Forest” in the Lake Monroe watershed. The federal district court for the Southern District of Indiana concluded in both of the earlier cases (filed in 2020 and 2023) that the Forest Service failed to take a hard look at the project’s environmental consequences. In this third challenge, the plaintiffs again asserted that the Forest Service violated NEPA and the Administrative Procedure Act, including by using an “inapplicable” definition of “old-growth” to avoid the need for compliance with President Biden’s Executive Order 14,072, which required identification of old-growth and mature forests on federal lands and analysis of threats to their existence. The plaintiffs alleged that the reliance on the inapplicable definition resulted in an arbitrary predetermination of the outcome of the Forest Service’s analysis. Monroe County Board of Commissioners v. U.S. Forest Service, No. 1:24-cv-01560 (S.D. Ind., filed Sept. 11, 2024)
Lawsuit Asked Court to Compel Agency Actions to Implement Vermont Climate Law
Conservation Law Foundation (CLF) filed a citizen suit under Vermont’s Global Warming Solutions Act (GWSA) alleging that the Secretary of Natural Resources had failed to comply with statutory duties under the GWSA. CLF asked the court to direct the Secretary to conduct a review to determine whether new or amended rules were necessary to achieve the GWSA’s requirement that the State reduce greenhouse gas emissions by at least 26% below 2005 levels by 2025 and also to require the Secretary to adopt or update rules to ensure that the 2025 emissions reduction requirement would be achieved by a date certain. CLF also alleged that the Secretary had failed to conduct public hearings as required by the GWSA. CLF alleged that an outside consultant retained by CLF had predicted that the State’s emissions level would exceed the 2025 reduction requirement by approximately 307 thousand metric tons of carbon dioxide equivalent emissions (kMTCO2e), which was “equivalent to the greenhouse gas emissions generated by Vermonters driving more than 785,000,000 miles in gasoline-powered passenger vehicles over the course of calendar year 2024.” CLF alleged that the Secretary—in a July 2024 letter notifying the Vermont Climate Council that the State was “narrowly on track” to achieve the 2025 requirement—had relied on a report prepared by another consultant that relied on a model that “cannot reliably predict future greenhouse gas emissions” and that was not intended to be “indicative of the [S]tate’s likelihood of achieving” required emission levels in 2025 or the other compliance years. CLF also alleged that the Agency of Natural Resources had not adopted any rules since December 2022 to achieve the 2025 reduction requirement. Conservation Law Foundation, Inc. v. Moore, No. __ (Vt. Super. Ct., filed Sept. 24, 2024)
California Plastic Pollution Lawsuit Against ExxonMobil Included Allegations of Misrepresentations Regarding “Advanced Recycling” Greenhouse Gas Reductions
California Attorney General Rob Bonta filed a complaint in California Superior Court against Exxon Mobil Corporation (ExxonMobil) alleging that the company “caused or substantially contributed to the deluge of plastic pollution that has harmed and continues to harm California’s environment, wildlife, natural resources, and people.” In addition, the complaint alleged that ExxonMobil deceived Californians “by promising that recycling could and would solve the ever-growing plastic waste crisis.” California’s complaint included allegations that ExxonMobil misled customers regarding greenhouse gas reduction benefits of its “advanced recycling” process. The complaint asserted that claims of significant greenhouse gas reductions through advanced recycling “are based on selective data presentation and problematic assumptions that mislead consumers.” The complaint asserted causes of action for public nuisance under the California Civil Code; for equitable relief for pollution, impairment, and destruction of natural resources under California Government Code Section 12607; for water pollution under the California Fish and Game Code; and for violations of the False Advertising Law, Environmental Marketing Claims Act, and Unfair Competition Law. The complaint requested that the court compel the defendant to abate the public nuisance, including through establishment of an abatement fund and that the court also order ExxonMobil to cease and desist public statements related to its plastic operations, including statements regarding “advanced recycling.” Other relief sought included temporary and permanent equitable relief to prevent pollution, impairment, and destruction of natural resources, as well as civil penalties and disgorgement. Environmental organizations filed a separate complaint against ExxonMobil asserting nuisance and violation of the Unfair Competition Law in connection with the company’s plastic operations. Their lawsuit included allegations regarding studies finding that “advanced recycling” results in more greenhouse gases than landfilling or incinerating plastics. People v. Exxon Mobil Corp., No. CGC24618323 (Cal. Super. Ct., filed Sept. 23, 2024); Sierra Club v. Exxon Mobil Corp., No. CGC24618321 (Cal. Super. Ct., filed Sept. 23, 2024)
Lawsuit Challenged Iowa Utilities Commission’s Approval of Carbon Dioxide Pipeline
A lawsuit filed in federal district court in Iowa challenged the Iowa Utilities Commission’s approval of approximately 688 miles of supercritical carbon dioxide pipeline proposed by Summit Carbon Solutions LLC. The plaintiffs—which included property owners whose properties would be encumbered by the pipeline, an economic development organization, an association of members of the Iowa General Assembly, a property rights organization, and members of the public—asserted that the Commission did not comply with the Iowa Administrative Procedure Act and violated their federal and State due process rights, and that the pipeline did not justify use of eminent domain under Iowa law or the U.S. Constitution. Hirth v. Iowa Utilities Commission, No. 6:24-cv-2046 (N.D. Iowa, filed Sept. 10, 2024)
Carbon Sequestration Company Sought Texas Court Declaration that Its Site Could Operate as Recycling Facility
A company that operates a facility where waste wood materials are buried in a way that generates a carbon removal credit filed a lawsuit against the Texas Commission on Environmental Quality (TCEQ) seeking a declaration that would permit the facility to operate as a municipal solid waste recycling facility. The company said the physical product created underground was “validated by a carbon credit under the Puro.earth 100-year Terrestrial Storage of Biomass Methodology.” The company alleged that TCEQ initially approved the company’s notice of intent to operate the recycling facility but subsequently stated that the facility was in violation of Texas regulations because “the production of [Carbon Oxide Removal Credits (CORCs)] is not simultaneous with the production of a physical product that can be repurposed for later use.” The company contended that it satisfies regulatory requirements because it “recycles raw waste biomass into a physical material for beneficial use through separation, cleaning, and preparation processes” and that “[t]he processed and buried wood becomes a physical product certified as a CORC, providing verifiable carbon removals showing the carbon is underground, not in the atmosphere.” The company further alleged that it “promotes the development of markets for recycled biomass by offering a reliable source of CORCs, which are becoming increasingly significant in the global fight against climate change.” In addition to declaratory relief, the company requested at least $250,000 for detrimental reliance, attorney’s fees and costs, and temporary injunctive relief. Carbon Sequestration, Inc. v. Texas Commission on Environmental Quality, No. D-1-GN-24-006414 (Tex. Dist. Ct., filed Sept. 13, 2024)
Lawsuit Alleged that Meat Producer Made False or Misleading Net-Zero and “Climate-Smart Beef” Claims
Environmental Working Group (EWG) filed a lawsuit against Tyson Foods, Inc.—“the second largest meat company in the United States and the world”—in D.C. Superior Court alleging that Tyson made false or misleading marketing claims regarding its commitments to reduce carbon emissions associated with its products. EWG alleged that Tyson “knowingly capitalizes” on consumers’ “well-intentioned preferences by advertising in numerous outlets a pledge to achieve ‘net-zero’ climate emissions by 2050 and marketing ‘climate-smart’ beef” but that the company “has no plan to achieve these goals and is taking no meaningful steps to do so.” EWG alleged that 85% of Tyson’s greenhouse gas emissions are from beef and that beef produced by Tyson would constitute “one of the most climate-intense foods on the market” even if “a slight reduction” in emissions from its “industrialized processes” were possible. EWG alleged, moreover, that it would not be possible to achieve substantial reductions in emissions from the company’s meat production—including nitrous oxide emissions from production of animal feed and enteric and manure management methane emissions—and that “the offsets required to zero out Tyson’s meat production emissions are both unfathomable and unavailable.” EWG alleged that even if the company reduced actual emissions by 75%, offsetting the remaining emissions would require between 30 and 48 million acres of preserved U.S. forest. EWG asserted that Tyson’s advertisements and representations regarding net-zero emissions and “climate-smart beef” violated the D.C. Consumer Protection Procedures Act. EWG asked the court to enjoin Tyson from making the false or misleading statements and to require “redress of consumer misunderstanding about the climate impact of its industrial beef production.” Environmental Working Group v. Tyson Foods, Inc., No. 2024-CAB-005935 (D.C. Super. Ct., filed Sept. 18, 2024)
Environmental Groups Challenged CEQA Review for Port of Stockton Hydrogen Plant
Sierra Club and Center for Biological Diversity filed a lawsuit in California Superior Court challenging the Port of Stockton’s compliance with the California Environmental Quality Act in connection with approval of the BayoTech Hydrogen Production and Dispensing Facility Project, which would use methane as the feedstock to produce hydrogen. The organizations asserted that an environmental impact report should have been prepared to evaluate the project’s impacts, including greenhouse gas emissions. They alleged that the analysis of greenhouse gas emissions and other impacts in the Initial Study and Mitigated Negative Declaration (IS/MND) was inadequate and that the IS/MND failed to adequately analyze the project’s consistency with California’s climate, clean energy, and greenhouse gas reduction goals and mandates. In addition, the organizations asserted that the Port failed to adopt sufficient mitigation measures to address impacts, failed to provide an opportunity to comment on the mitigation monitoring and reporting program, failed to provide an adequate description of the project and its environmental setting, failed to analyze consistency with local land use plans, including the Stockton General Plan, Community Emissions Reduction Program, and Stockton Climate Action Plan, and failed to make adequate findings. Sierra Club v. Port of Stockton, No. STK-CV-UWM-2024-0012095 (Cal. Super. Ct., filed Sept. 19, 2024)
HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART
HIGHLIGHTED CASE
Ireland: Challenge on Legality of Ireland’s Climate Action Plan 2024
Community Law and Mediation Centre (CLM), a public interest NGO based in Ireland, and three other plaintiffs (a grandfather, a toddler, and a youth climate activist) are seeking a declaration from the High Court of Ireland that the Government’s Climate Action Plan 2024 (CAP24), the instrument by which the government sets out the roadmap for meeting Ireland’s legally binding carbon budget, fails to meet the legal standards set by the Climate and Low Carbon Development Act 2015. They argue that the CAP24, as adopted, undermines the State’s efforts at effective climate action in line with Ireland’s legal obligations; and is not in compliance with the first carbon budget or the carbon budget programme and was prepared, submitted and approved in breach of the 2015 Act. In addition, they argue that CAP24 violates the fundamental rights of the three individual applicants, marginalized groups that CLM works with, and future generations, as protected by the Constitution of Ireland 1937, the European Convention on Human Rights and the European Union Charter of Fundamental Rights. The case aims to build off the recent European Court of Human Rights Klimaseniorinnen case to determine whether Ireland’s allegedly insufficient action constitutes a violation of the European Convention on Human Rights. Specifically, the petition asks whether CAP24 is argued to be legally insufficient and non-compliant with Ireland’s carbon budget and climate obligations, and:
(a) Fails to meet legal standards set by the Oireachtas.
(b) Undermines effective climate action in line with Ireland’s legal obligations.
(c) Does not comply with the first carbon budget or the carbon budget programme.
(d) Was prepared, submitted, and approved in breach of the 2015 Act.
(e) Violates fundamental rights of individuals, marginalized groups, and future generations as protected by various legal frameworks.
The case is pending and will next be heard in October 2024. Community Law and Mediation Centre and Others v. Ireland (Ireland, High Court of Ireland)
DECISIONS AND SETTLEMENTS
Mexico: Collegiate Court Confirmed NGO’s Lack of Standing in Case Challenging the Mexican Electricity Commission’s Resolution Affecting Renewable Energy Projects
The Mexican Center for Environmental Law (CEMDA) challenged the Mexican Electricity Commission’s resolution increasing legacy transmission rates that affect renewable energy projects. Legacy energy projects refer to those energy projects that are regulated by the legal regime that existed prior to Mexico’s 2014 energy reform. Under such regimes, energy projects receive special transmission rates, among other features. In the challenged resolution, the Mexican Electricity Commission increased the transmission rates that such projects must pay by between 500% and 800%, according to CEMDA.
Plaintiff considered that the new transmission rates transgress Mexico’s international commitments on environmental and energy matters. They also highlighted that the increase in the rates is unjustified, disproportionate and will hamper Mexico’s transition to clean energy sources. Finally, they considered that the obstruction of clean energy sources through the increased rates constitutes a violation of the right to a healthy environment since it will lead to an increased dependence on fossil fuels.
The First District Court in Administrative Matters Specialized in Antitrust, Broadcasting and Telecommunications granted a stay of the implementation of the price increase in October 2020 pending the final decision of the trial. In the decision to stay the new rates, the District Court considered that the new transmission rates could signify an increase in greenhouse gas emissions that jeopardize human health, thus potentially infringing in the right to a healthy environment.
In December 2021, the Third District Court in Administrative Matters Specialized in Antitrust, Broadcasting, and Telecommunications was created by the Federal Judiciary Council, and the case was reassigned to it under the number 232/2021. On May 15, 2023 the Judge decided that the plaintiff, as an NGO, did not have legal standing to file the lawsuit because the plaintiff did not offer evidence that would allow to affirm that the challenged acts affect the environment. Furthermore, the Court considered that even though the civil organization has, as its purpose, the legal defense of the right to a healthy environment, this is not enough to prove its legal standing. Therefore, the case was dismissed. On June 2, 2023, CEMDA challenged the Court’s decision. On July 25, 2024, the Collegiate Court solved the appeal and confirmed the District Court’s decision. CEMDA v. Rise of Legacy Transmission Rates (Mexico, Collegiate Court)
Mexico: Supreme Court Confirmed Individual’s Standing in Case Relating to Alleged Violations of Ecosystems - Case Remanded to Collegiate Court to Decide on Merits
On September 21, 2023, the Collegiate Court that heard the appeal decided to reverse the Judge’s decision to dismiss the case for a lack of legal standing. The Collegiate Court decided that the plaintiffs did have legal standing to file the lawsuit.
The jurisprudential criteria in environmental cases in Mexico to know whether a person has standing or not, is that there must be a link between the plaintiffs who claim to be right holders and the environmental services provided by the ecosystem allegedly violated. In this case, since it is climate change, a direct link with the ecosystem cannot be argued.
However, the Collegiate Court determined that the link between the plaintiffs’ right to health and to a healthy environment, and the environmental services provided by the ecosystem allegedly violated, is proven by the fact that they live in Mexico and the legal norms and plans that they claim have not been issued by the responsible authorities in compliance with the General Law on Climate Change, could have an impact on the entire national territory. This means that all the ecosystems of the country will benefit from the provisions, rules, plans and strategies that must be issued, since their purpose will be to counteract the effects and prevent possible damages derived from climate change, which is a phenomenon that impacts the entire planet and not only a specific place.
In addition, the case was analyzed considering the principle of citizen participation and the correlative principle of public initiative in environmental matters, as well as the precautionary principle. Therefore, regarding the legal standing, the Court decided that the plaintiffs have standing to file the lawsuit. In relation to the merits of the case, the Collegiate Court sent the case to the Mexican Supreme Court. On August 28, 2024, the Supreme Court decided not to hear the case on the merits. The case is remanded back to the Collegiate Court to decide on the merits of the case. Youth v. Government of Mexico (Mexico, Supreme Court)
Netherlands: Case on Climate Adaptation and Mitigation Measures for the Island of Bonaire Held Partially Admissible
On January 11, 2024, Greenpeace Netherlands and eight Dutch citizens of the island of Bonaire sued the Dutch State about the lack of climate adaptation and mitigation action. The plaintiffs argue that the Dutch State has not taken sufficient climate adaptation and mitigation measures to protect the people of Bonaire, a small Dutch island in the Caribbean near Venezuela, against the negative effects of climate change on human rights, in line with the 1.5⁰C goal of the Paris Agreement and human rights treaties. The complaint was launched after plaintiffs issued a warning letter in 2023, demanding to meet with Ministries in The Hague to have talks about better climate adaptation policy and action for the island, as well as more resources devoted to adaptation.
The plaintiffs argue that the Dutch State is committing an ‘unlawful act’ (onrechtmatige daad) under Article 6:162 of the Civil Code by failing to implement adequate climate adaptation and mitigation action, in a way that protects inhabitants’ international human rights. The plaintiffs rely on the legal reasoning by the Dutch Supreme Court in the landmark case of Urgenda Foundation v. State of the Netherlands [2015] HAZA C/09/00456689 (“Urgenda Case”), as well as in judgment of the Dutch District Court in the Hague in the case of Milieudefensie et al. v. Royal Dutch Shell plc. that is still undergoing an appeal. The rights at stake in the present case include the right to life and right to private life, family and the home in Articles 2 and 8 of the European Convention on Human Rights (ECHR), the prohibition of discrimination in Article 14 of the ECHR and the right to culture of people living on the Caribbean island under Article 27 of the International Covenant on Civil and Political Rights (ICCPR). In support, plaintiffs also invoke several provisions of the Aarhus Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters on relevant procedural rights and obligations, e.g. Articles 5, 6 and 7 of the Aarhus Convention.
Regarding the right to culture and non-discrimination under Article 27 of the ICCPR, the plaintiffs argue that the inhabitants of Bonaire are a minority within the Kingdom of the Netherlands, with a special and deeply rooted shared culture and history tied to their island. The complaint provides ample detail on the colonial history of the islands, the culture of the island and its inhabitants, as well as its current legal status as a ‘special’ municipality of the European part of the Netherlands. The plaintiffs claim that as inhabitants of Bonaire, they are not treated the same as Dutch citizens living in the European part of the Netherlands, because for ‘European Netherlands’ major adaptation works have long been planned and undertaken, resources reserved and devoted, as well as permanent, ongoing evaluations and assessments of the situation. There is no comparable protection for Bonaire. In fact, plaintiffs argue that in light of the deep structural inequality between the quality of life on Bonaire and those living in the European part of the Netherlands, there is reason to argue that the State should pay extra attention to the situation on Bonaire. They argue that this also follows from case law under Article 14 of the ECHR, and the principle of equality under Article 1 of the Dutch Constitution.
Regarding Articles 2 and 8 of the ECHR and mitigation, the plaintiffs’ case is premised on the legal reasoning previously endorsed by the Dutch Supreme Court in the Urgenda Case. Notably, Article 2 and 8 of the ECHR entail positive legal obligations for the Dutch State to do its ‘fair share’ to prevent dangerous climate change by adequately mitigating GHG emissions. The plaintiffs argue that based on the Netherlands’ historical emissions, compared to other countries, especially in the developing world, it is no longer fair for the Netherlands to still emit any GHGs. They also refer to studies indicating that it is feasible for the Netherlands to achieve net-zero emissions in the Netherlands by 2040, rather than 2050. As such, this is what the plaintiffs consider legally necessary for the Netherlands to do as its minimum “fair share” to prevent dangerous climate change. According to the plaintiffs, the negative effects on the lives of people on Bonaire are already significant and will only increase if no action is taken. Climate change threatens, among other things, their lives, their livelihoods, their health, their cultural heritage, nature, and the possibility for future generations to live on in the same way on Bonaire.
The plaintiffs extended their legal reasoning on mitigation also to adaptation. They note that there is ‘widespread consensus’ in international climate policy and law, as well as amongst human rights bodies, that there is a need to ‘rapidly accelerate’ the implementation of adaptation measures. Plaintiffs argue that the State has a legal obligation to take all appropriate measures that may be reasonably necessary, in a timely and consistent manner. This obligation is based on due diligence, and must take into account the special needs and disproportionate vulnerability of the inhabitants of Bonaire, and the complex historical and political context of the islands. They also point to other successful climate litigation on adaptation in this regard, such as the Torres Straight Islanders case at the UN Human Rights Committee.
On September 25, 2024, the District Court in The Hague rendered an interim judgment on the admissibility of the parties. It decided that Greenpeace as an environmental NGO acting on behalf of the interests of all people on Bonaire is admissible. The case of the 8 individual citizens was not admissible. Greenpeace’s case was admissible based on Article 3:305a of the Civil Code, which provides for special standing for NGOs to take collective action. The Court did not consider the 8 individual’s case admissible under the same procedure, because Greenpeace’s claim already incorporates theirs; the citizens are not allowed to bring a claim of behalf of other residents on Bonaire in a similar way as Greenpeace; and the citizens did not sufficiently provide evidence of being ‘personally directly affected’ by climate change either, possibly justifying a separate claim on their own behalf.
The case is scheduled to proceed based on the merits in 2025, with the State’s substantive defense to be presented later this year. Greenpeace Netherlands and 8 citizens of Bonaire v. The Netherlands (Netherlands, District Court North-Holland)
Italy: Court of Cassation Due to Rule on Procedural Admissibility of Climate Change Litigation in Italy
On May 9, 2023, 12 Italian citizens and 2 NGOs (Greenpeace Italy, and ReCommon) filed a lawsuit against the fossil fuel company ENI S.p.A. (“ENI”) for its contribution to global warming. The lawsuit also includes ENI’s two majority shareholders, namely the Italian Ministry of Economy and Finance (“MEF”) and Cassa Depositi e Prestiti S.p.A. (“CDP”). The case relies on the Dutch District Court’s landmark decision in Milieudefensie et al. v. Royal Dutch Shell plc , which ordered Shell to reduce its emissions by 45% by 2030, relative to 2019, across all activities including both its own emissions and end-use emissions.
According to the claimants, ENI’s decarbonization strategy is not in line with the goals enshrined in the Paris Agreement and the best available climate science recommendations to limit climate impacts. The claimants allege that ENI’s conduct not only contributes to climate change, with all that it entails in terms of environmental risks and health consequences, it also violates human rights that are safeguarded and protected both by the Italian Constitution and by international norms and agreements. Additionally, MEF and CDP is argued to be deemed responsible for ENI’s climate inaction, as, thanks to the ENI’s shares held directly and indirectly, they have sufficient votes to exercise a dominant influence in the Ordinary Shareholders’ Meeting of ENI, which is equivalent to a situation of “control” of the State over the same company participated.
The claimants are thus requesting the Court of Rome to declare ENI, MEF and CDP jointly and severally liable for past and potential future damages to fundamental rights, such as the right to health, safety, and property and for putting, and continuing to put, in danger the same assets of the applicants because of the consequences of climate change. The claimants also seek an order against ENI MEF and CDP to adopt an industrial strategy to reduce the climate-changing CO2 emissions associated with its operations by 45% by 2030 against the company’s 2020 baseline, in line with the requirements of the Paris Agreement. The claimants’ request for the application of the new astreinte tool, asking to condemn ENI to pay a monetary sum to be determined by the judge for any violation or non-compliance with or delay in the execution of the obtaining order. No claim for the actual damages suffered by the 12 citizens or others is sought.
During the proceedings, the respondents invoked the Court’s ‘absolute lack of jurisdiction’, particularly citing the recent decision in A Sud et al. v. Italy – in which the Court had declared the applicants’ claims inadmissible on the grounds of absolute lack of jurisdiction.
On June 10, 2024, the Applicants decided to petition the Civil Court of Rome to stay the proceedings as they filed an appeal for a regulation of jurisdiction. This legal instrument allows a party to request that the Court of Cassation (Supreme Court of Italy) determine the jurisdiction. The Civil Court of Rome granted the stay, suspending the trial and referring the matter of admissibility of the civil proceedings to the Court of Cassation. The Court of Cassation will now have the opportunity to rule on the procedural admissibility of climate change litigation cases in Italy. Greenpeace Italy et. Al. v. ENI S.p.A., the Italian Ministry of Economy and Finance and Cassa Depositi e Prestiti S.p.A. (Italy, Civil Court of Rome)
Chile: Supreme Court Dismissed Appeal on Contract Termination Due to Extreme Drought
As described in the lawsuit filed on February 4, 2022, the plaintiff entered into a contract with the defendant, the Municipality of Monte Patria, in May 2017 for services related to the Department of the Environment, where he maintained the city’s gardens and public spaces, kept a record of the city plants, and trees, and shrub needs, and designed gardens for public spaces and schools. It was initially fixed until December 31, 2017 and then renewed every three months based on the evaluation of the person in charge of the Department. There were successive renewals of contracts until 31 December 2019.
On January 2, 2020, the Municipality amended his contract, assigning him the tasks of “planning the recovery of public spaces, designing and executing projects for green areas under its Environment Director.” Upon November 30, 2021, the defendant notified him of the termination of his contract (“non-renewal”), and he was dismissed on December 31, 2021. According to the plaintiff, he was dismissed for political reasons and due to a discriminatory act by the defendant.
According to the municipality, the complaint should be rejected. It states that since the employee is a public worker, the termination does not have to be justified since the contract’s expiration suffices. It is claimed, however, that the termination of the contract was due to a restructuring of the Department of the Environment, as extreme drought requires actions that favor the sustainable use of water resources and address the drought in Monte Patria, which requires different planning than what has been done so far by the plaintiff.
Due to the fixed-term nature of the contract, the Ovalle District Court rejected the claim, stating that the defendant municipality did not have to justify its termination. As for climate change, it maintains that the separation of the plaintiff was caused by an administrative reorganization affecting the unit or department where the plaintiff worked, such as Environment. The judgment indicates that the prolonged drought affecting the province and much of the country is public knowledge, so it seems reasonable to adopt measures to optimize water resources and reduce green areas of the commune, which happens to be the operational area of the plaintiff both in planning, monitoring and care; and this measure has justified the rationing of human resources for the plaintiff’s responsibilities.
The plaintiff filed an action for annulment before the Court of Appeals for the City of La Serena. According to him, the dismissal was unjustified and politically motivated. Regarding the argument that the Department of the Environment should be restructured, he maintains that the climate crisis has been around the city for over 20 years, and that his work focuses specifically on water resource optimization, which demonstrates the weakness of the Municipality’s argument.
The Court of Appeals of La Serena dismissed the appeal without addressing the defendant’s climate change argument. A new legal recourse for unification of jurisprudence was filed by the plaintiff against this judgment before the Supreme Court. On March 16, 2023, the Supreme Court dismissed the unification appeal as inadmissible without ruling on the merits of the case. Ricardo Castillo Arancibia v. Municipality of Monte Patria (Chile, Supreme Court)
Chile: Appeal Dismissed in Constitutional Action Demanding Shutdown of Thermoelectric Power Plant by Residents of Huasco
On November 25, 2021, the residents of Huasco, headed by a group of women, filed a constitutional action against the State of Chile. In their claim, they demand the shutdown of two units of the thermoelectric power plant AES Gener Guacolda. The plaintiffs indicate that while Chile is a party to the Paris Agreement and has recently approved an agreement on the decarbonization of coal-fired power plants, it still decided - without justification - that the closure of Guacolda will only take place in 2040. The plaintiffs claim that the decision violates their constitutional rights to life, to live in an environment free of pollution, and equality before the law. According to them, the power plant’s emissions are affecting the health of residents and neighbors of Huasco. They request a plan from the government to mandate the shutdown of the two units of the thermoelectric power plant and a compensation plan for the harmful emissions.
In its response, the Government of Chile requested the dismissal of the complaint as it argued there was no breach of fundamental rights. The government explained that decarbonization is voluntary for both the executive branch and the private companies. They point out that the Ministry of Energy’s Decree No. 50/2020, approving the decarbonization agreement, is an administrative act that is constantly updated. Further, the decision to close the power plant relies on a combination of factors.
On May 2, 2022, the Court of Appeals of Copiapo rejected the claim on procedural grounds. The Court found that the matter in question was beyond its competence, as it involved the exercise of powers belonging to the executive branch. The thermoelectric closure is a complex process involving different factors and not just the executive government. The plaintiffs brought an appeal before the Supreme Court to review the case. The Supreme Court dismissed the appeal filed. Women from Huasco and Others v. the Government of Chile, Ministry of Energy, Environment and Health (Chile, Supreme Court)
Chile: Action on Lithium Production Bidding Process Withdrawn Against Ministry of Mining
In 1979, lithium was declared of national interest in Chile. Since then, only the State of Chile can manage lithium production, which maintains the status of lithium as a strategic mineral. On October 13, 2021, the Government of Chile (through the Ministry of Mining) published a call for applications to increase lithium production. This call intends to facilitate the entry of national and foreign companies in the lithium market, promoting production and supporting the development of new technologies that enable the energy transition and the fight against global warming. Lithium is a key element of the energy transition given the increased demand for rechargeable lithium-ion batteries for supplying the power and transport sectors with renewable energy. The call seeks to encompass the exploration, exploitation, and commercialization of a total of 400,000 tons of marketable metallic lithium, divided into 5 quotas of 80,000 tons each.
On January 10, 2022, the regional government of Atacama brought a case against the Ministry of Mining. The complaint questions the bidding process of the lithium production application, which the regional government argues was carried out without public participation and in the absence of any assessment of the activity’s potential environmental impacts on the region. The regional government argues that the project will be developed in the Atacama Salt Flats, representing a threat to its biodiversity. Atacama also points out that the project might destroy wetlands, the availability of water, which is already scarce in the area, and the destruction of cultural heritage, as it is a sector of high touristic interest. While the regional government recognizes that the call for lithium bidding responds to international pressure to guarantee an energy transition, it highlights the preliminary step to assess the impacts of the increased lithium mining. The regional authority requests that the contracts are deemed null or, in the alternative, to restart the bidding process and ensure that the regional government is properly consulted.
The Ministry of Mining argued that the bids have already been awarded to two companies and that the existing contracts refer to the exploration and exploitation of lithium. A constitutional action would not be pertinent at this stage. In the defendants’ view, the Court should analyze the alleged arbitrariness or illegality of the act at a later stage, once the act of granting the concessions has been completed. The Ministry of Mining further noted that it is up to the successful bidder to obtain the different permits required for the operation of the lithium plant, for example environmental, water and administrative permits.
On January 14, 2022, the Court of Appeals of Copiapo granted the plaintiff’s preliminary request and suspended the contracts while the writ of protection is pending. On July 8, 2022, the petitioners decided to withdraw the action filed, citing the resolutions made in cases No. 99-2022 and No. 8507-2022 by the Supreme Court. The Court’s rulings effectively addressed the alleged constitutional violations by annulling the bidding terms of the lithium process and revoking the awarded contracts, previously granted to the companies. Regional Government of Atacama v Ministry of Mining and Other (Chile, Supreme Court)
Chile: Supreme Court Found Appeals Regarding a Challenge on Coal Blasting Project Environmental Impact Assessment Inadmissible
Plaintiffs challenged the environmental impact assessment of a proposed coal blasting project for failure to consider climate impacts. The environmental court of Valdivia blocked the project on other grounds. In November 2018, the claimants brought a suit to challenge the environmental impact assessment of the proposed project “Incorporation of blasting as a complementary method in the mechanical extraction of sterile material in the Winter Mine.” The Commission for Environmental Assessment of the Magallanes Region and the Chilean Antarctic had initially deemed the project’s declaration of environmental impacts to be environmentally unfavorable. When the mine operator challenged this conclusion, the Executive Director of the Commission of Environmental Assessment reversed the decision, determining that the project was environmentally favorable. Claimants asked the court to reinstate the initial determination. They argued that the final environmental impact statement failed to consider the climate impacts of coal blasting in violation of Chile’s commitments under international law, including the Paris Agreement, as well as the preventive principle. The plaintiffs further asserted the need to eliminate the use of fossil fuels, and in particular coal, on a global level in order to reduce greenhouse gas emissions.
In August 2019, the Court issued a decision. The Court acknowledged that climate change is a global problem, but concluded that Chile’s international commitments do not impose a legal requirement to consider climate change in environmental impact assessments. The Court annulled the environmental impact assessment on other grounds, in a decision that the operator has appealed. On June 8, 2022, the Supreme Court issued a decision declaring the appeals filed inadmissible and upholding the ruling of the Third Environmental Court. Grez et al. v. Environmental Evaluation Service of Chile (Chile, Supreme Court)
Chile: Claim Against Evaluation Commission for Approval Given to Google Chile MegaProject Based on Potential Adverse Effects on Cerrillos Community
On December 11 and 14, 2020, the petitioners filed an administrative claim against Exempt Resolution No. 524/2020, of October 28, 2020, issued by the Evaluation Commission of the Metropolitan Region (Coeva RM), in accordance with Article 17 No. 8 of Law No. 20.600. The claim is against the approval of the “Cerrillos Data Center,” a Google Chile megaproject involving the establishment of a technological data storage center, which requires a powerful cooling system due to a large number of servers in operation. The claim is based on the project’s potential adverse effects on the residents of the Cerrillos commune, particularly regarding the potential impacts on water resource availability and air quality.
Two claims were filed against the project’s approval before the Second Environmental Court: the first by a group of 14 residents of the Cerrillos commune, and the second by the Cerrillos Municipality. During the process, the Municipality of Cerrillos withdrew its legal action, as did 13 residents. The withdrawal was due to the project’s public declaration that it would no longer use water to cool the servers. In February 2022, the company presented a “Modification of the ‘Cerrillos Data Center’ Project” to the Environmental Assessment Service (SEA), which involves replacing the water-based cooling towers with air-cooled condensers, thereby eliminating the use of groundwater from the three wells of the Santiago Central Aquifer over which the company has water rights. The action was continued only by one resident.
The ruling of September 26, 2024, by the Second Environmental Court, partially upheld the claim and ordered the Environmental Assessment Service (SEA) to revert the evaluation process of the initiative to incorporate consideration of the effects of climate change in the assessment of the water component. It explains that although the SEA determined that the change in the server cooling system did not necessarily require entry into the Environmental Impact Assessment System (SEIA) before its execution, this determination is not binding for the environmental evaluation of the original project. For this reason, the Tribunal’s analysis focused on the effects of water use for cooling and its impact on the water resource.
The Tribunal concluded that this evaluation did not adequately exclude significant impacts of the project on the water resource, which, it deemed, goes against the preventive principle and the very purpose of an Environmental Impact Declaration. It also added that the measures established by the General Directorate of Water (DGA) do not replace a proper evaluation of the project in terms of ruling out the absence of adverse effects.
The court decision emphasized that, in light of the uncertainties raised by the General Directorate of Water (DGA) in its most recent report, the Environmental Assessment Service (SEA) failed to apply adequate precautionary measures. The court highlighted the need to assess the vulnerability of the aquifer and consider the potential impact of climate change under the most adverse conditions. This evaluation should have considered the extensive scientific literature demonstrating Chile’s significant susceptibility to climate change, particularly in the context of the ongoing mega-drought, which directly impacts water resource availability. The court noted that these factors could significantly affect the outcomes of environmental modeling, influencing both the evaluation of adverse effects on water resources and the appropriateness of the conditions and requirements imposed, as well as the voluntary environmental commitments made by the project. Consequently, the court mandated a reevaluation of the project, incorporating the potential effects of climate change in its environmental assessment. Municipality of Cerrillos (Google Data Center) v/ Evaluation Commission of the Metropolitan Region (Chile, Environmental Court)
NEW CASES
Australia: Action Seeking Refusal of Thermal and Metallurgical Coal Mine Proposed in the Bowen Basin
The Australian Conservation Foundation (ACF) and Mackay Conservation Group (MCG) have commenced legal proceedings in the Queensland Land Court, seeking the refusal of Whitehaven Coal’s Winchester South thermal and metallurgical coal mine, proposed for the Bowen Basin. ACF and MCG will argue that the court should recommend that no mining lease or environmental authority be granted for the Winchester South project – Australia’s largest proposed new coal project – due to its significant environmental and human rights impacts.
If it goes ahead, the mine would likely:
(a) Extract up to 17 million tonnes of thermal and metallurgical coal each year for 28 years, generating at least 583 million tonnes of climate pollution – more than the entire annual emissions of Australia. (Much of the Winchester coal would be burnt overseas but still contribute to global warming impacts in Australia.)
(b) Spew huge volumes of super-warming, unchecked methane into the air, adding to the already severely underreported methane coming from the Bowen Basin.
(c) Destroy at least 2,000 hectares of wildlife habitat that is home to endangered and threatened species, including koalas (destroying 242 football fields of koala habitat), the greater glider, the Australian painted snipe, the ornamental snake and squatter pigeon. (Whitehaven plans to dig six huge mine pits.)
(d) Have an unacceptable impact on water resources, including the Isaac floodplain and groundwater aquifers.
(e) Impact human rights due to the climate consequences on generations of Queenslanders.
(f) The groups believe Whitehaven’s environmental history makes it an unsuitable company to operate this mine.
Whitehaven Coal Pty Ltd v Australian Conservation Foundation & Ors (Australia, Queensland Land Court)
Australia: Mining Objection Hearing Against Fully Owned Subsidiary of World’s Largest Coal Company, Glencore
The Applicant, Rolleston Coal Holdings Pty Ltd, is a wholly-owned subsidiary of the world’s largest coal company, Glencore. On September 25, 2024, the Environment Council of Central Queensland In (EnvA-cq) commenced its objection to the Applicant’s environmental authority amendment application. The case will be conducted in the Queensland Land Court as a mining objection hearing (MOH). Glencore is applying for an amendment to their existing environmental authority for the Rolleston Open Cut Coal Mine in central Queensland’s Bowen Basin so that they can expand current operations by clearing an additional 600 hectares of habitat to dig a new open-cut pit. The amendment application would allow Glencore to mine an additional 2mt of product thermal coal and extend the life of the mine till 2040. The existing mine approvals allow Glencore to produce up to 19mtpa making it one of Australia’s largest thermal coal mines. The extension alone will produce 82 million tonnes of carbon pollution from the combustion emissions of the coal that is exported.
The extension project received a draft environmental authority (EA) approval by the Queensland government in July 2024. EnvA-cq is challenging the draft EA in court and seeking a recommendation from the Queensland Land Court that Glencore’s application for approval be refused. EPA286-24 Rolleston Coal Holdings Pty Ltd v Environmental Advocacy of Central Queensland Inc. (Australia, Queensland Land Court)
Brazil: Public Civil Action case against the State of Rio Grande do Sul Seeking an Injunction to Implement a Just Energy Transition Process
On July 19, 2024, the Instituto Internacional Arayara de Educação e Cultura - Instituto Arayara de Educação para a Sustentabilidade filed a Public Civil Action (CPA), with a request for an injunction, against the State of Rio Grande do Sul, seeking the implementation of a just energy transition process within the state. This includes a structured plan to ensure the decommissioning of the fossil fuel-powered thermoelectric sector and adopting a process to rebuild state infrastructure. The causes of action include the catastrophic consequences of the climate crisis experienced by the state; the fact that its fossil fuel-powered thermoelectric sector is one of the least efficient in Brazil, responsible for significant environmental liabilities and a large stock of emissions; and the state’s commitment under the Proclima 2050 program, which falls short of the state’s needs in terms of energy transition. It is argued that the thermoelectric sector structure in Rio Grande do Sul contributes to climate change, and the Proclima 2050 program fails to provide truly effective guidelines for a just energy transition, which is critical given the increasingly frequent extreme weather events in the region.
In the injunction, it is requested that:
(a) The State of Rio Grande do Sul be ordered to establish a participatory committee to develop a just energy transition plan, with diverse representation;
(b) The committee operates based on scientific data, hiring specialized consultancy to assist in its functioning;
(c) The plan formulated by the committee be presented within 180 days; and
(d) The State of Rio Grande do Sul be prohibited from granting tax exemptions, incentives, new licenses, or even carrying out reconstruction works for the fossil fuel-powered thermoelectric sector.
On the merits of the case, it is requested that the action be granted, with confirmation of the urgent injunction. The case is currently pending. Instituto Arayara vs. Estado do Rio Grande do Sul (Just Energy Transition on Rio Grande do Sul State (Brazil, Rio Grande do Sul State Court)
Brazil: Public Civil Action for the Nullification of Inclusion of Blocks in the Santos and Campos Basins
On December 13, 2022, the Instituto Internacional Arayara de Educação e Cultura filed a Climate Public Civil Action (ACP) with a request for an injunction against the National Agency for Petroleum, Natural Gas, and Biofuels (ANP) and the Federal Union. It argues for the nullification of the inclusion of blocks located in the Santos and Campos Basins in the auction, as these areas overlap and are near Priority Areas for Biodiversity Conservation and Conservation Units. It is contended that the climate crisis demands a transition to clean energy and a reduction in carbon dioxide emissions, which is incompatible with the expansion of oil exploration in protected areas.
As an injunction, it requested:
(i) the suspension of the offering of the mentioned blocks;
(ii) the presentation of an inventory of greenhouse gas emissions that will be generated by the commercial exploitation of the blocks offered in the auction; and
(iii) the presentation by the defendants of detailed studies on the socio-environmental and economic impacts resulting from the expansion of exploration and production (E&P) activities in the Santos and Campos Basins. On the merits, it is requested that the provisional injunction be confirmed and that the defendants refrain from holding new rounds of auctions for the mentioned blocks/areas unless the technical-environmental regularity is unequivocally demonstrated, especially with reasoned opinions from bodies such as ICMBio, IBAMA, and state/municipal environmental agencies.
Instituto Arayara vs. ANP and Federal Union (1st Permanent Offer Cycle of Oil Concession in the Santos and Campos Basins (Brazil, Federal District Court)