September 2022 Updates to the Climate Case Charts
Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts. If you know of any cases we have missed, please email us at [email protected].
HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART FOR UPDATE #162:
FEATURED CASES
Louisiana and Wyoming Courts Split on Biden Administration Pause on Oil and Gas Leasing After Fifth Circuit Vacated Nationwide Preliminary Injunction
On August 17, 2022, the Fifth Circuit Court of Appeals vacated a nationwide preliminary injunction barring the Biden administration from implementing a “Pause” on new oil and gas leases on public lands and in offshore waters. The Fifth Circuit found that the injunction’s terms lacked the specificity required by Federal Rule of Civil Procedure 65(d). One day later, the district court in Louisiana issued a permanent injunction barring the federal defendants from implementing the “Pause” or “Stop” on new oil and gas leases. The district court found that the portion of President Biden’s executive order directing that agencies implement the pause/stop was beyond the President’s authority and violated the Outer Continental Shelf Lands Act and the Mineral Leasing Act. The court also granted summary judgment to the plaintiff states on their claims under the Administrative Procedure Act that the pause/stop was contrary to law and arbitrary and capricious, and that the defendants violated notice and comment requirements. The district court agreed with the government defendants that it did not have jurisdiction to review the pause/stop of lease sales that occurred after the states filed their lawsuit or of lease sales in non-plaintiff states. Louisiana v. Biden, No. 21-30505 (5th Cir. Aug. 17, 2022), No. 2:21-cv-00778 (W.D. La. Aug. 18, 2022)
In two other lawsuits challenging the pause on oil and gas leasing on public lands (one brought by industry groups and the other by the State of Wyoming), the federal district court for the District of Wyoming upheld the federal defendants’ actions. The court held that based on when they filed their actions, Wyoming had standing to challenge the postponement of lease sales in the first quarter of 2021 but that neither the industry groups nor Wyoming had standing to challenge lease sale postponements in the second quarter of 2021. The court further found that the first-quarter lease sale postponements did not violate the Mineral Leasing Act because the administrative record indicated that the postponements were implemented to ensure compliance with the National Environmental Policy Act (NEPA) in response to court decisions that found NEPA shortcomings in previously authorized lease sales, and not because the Interior Secretary stopped all quarterly lease sales pursuant to President Biden’s executive order. In addition, the court found that the first-quarter postponements were not arbitrary, capricious, or an abuse of discretion and did not violate the Federal Land Policy and Management Act or NEPA. Western Energy Alliance v. Biden, Nos. 2:21-cv-00013, 2:21-cv-00056 (D. Wyo. Sept. 2, 2022)
DECISIONS AND SETTLEMENTS
D.C. Circuit Left Gulf of Mexico Oil and Gas Leases in Place but Remanded for Additional Consideration of Reported Enforcement Deficiencies
The D.C. Circuit Court of Appeals remanded a challenge to the environmental review of two Gulf of New Mexico oil and gas lease sales to the Bureau of Ocean Energy Management (BOEM) for consideration of a Government Accountability Office report that found deficiencies in enforcement of safety and environmental requirements. The D.C. Circuit declined to vacate the leases, supplemental environmental impact statement, or records of decision. The court also rejected the petitioners’ other arguments, including claims that BOEM failed to consider a true no-action alternative in which no leasing occurred and that BOEM should have considered potential changes to rules intended to reduce offshore drilling risks. Gulf Restoration Network v. Haaland, No. 20-5179 (D.C. Cir. Aug. 30, 2022)
Third Circuit Affirmed Orders Returning Hoboken and Delaware Climate Cases to State Courts
The Third Circuit Court of Appeals affirmed remand orders in climate change cases brought by the City of Hoboken and State of Delaware against fossil fuel industry defendants. The Third Circuit found “no federal hook” that would allow the defendants to remove the state tort law actions to federal court, rejecting arguments that the state law claims were inherently federal or necessarily raised a substantial federal issue or that the Outer Continental Shelf Lands Act or federal officer removal statute provided a basis for federal jurisdiction. The Third Circuit stated that “[c]limate change is an important problem with national and global implications” but that “federal courts cannot hear cases just because they are important.” The Third Circuit granted a request for an extension of time to file a petition for rehearing. The deadline is September 14, 2022. City of Hoboken v. Chevron Corp., No. 21-2728 (3d Cir. Aug. 17, 2022); Delaware v. BP America Inc., No. 22-1096 (3d Cir. Aug. 17, 2022)
D.C. Circuit Dismissed Aftermarket Car Products Association’s Challenge to 2016 Greenhouse Gas Standards
The D.C. Circuit Court of Appeals concluded that it did not have jurisdiction to consider challenges brought by an association representing makers and sellers of aftermarket car products to the U.S. Environmental Protection Agency’s (EPA’s) 2016 final rule on greenhouse gas emissions standards for medium- and heavy-duty engines and vehicles. The association’s claims focused on aspects of the final rule that the association believed would curtail longstanding practices of modifying the emissions systems of cars as part of converting them to race cars, which they argue no longer qualify as “motor vehicles.” The court found that the association did not have standing to challenge either “merely cosmetic” amendments limiting the exemption for dedicated competition vehicles to “nonroad engines/equipment” or the expansion of the regulatory definition of “motor vehicle.” In addition, the court concluded that language in the preamble could not be challenged because it was not final agency action. Racing Enthusiasts & Suppliers Coalition v. EPA, No. 16-1447 (D.C. Cir. Aug. 12, 2022)
D.C. Circuit Found Flaws in FERC Evaluation of New York Climate Law’s Impact on Rate Filing Assumptions
In an unpublished judgment, the D.C. Circuit Court of Appeals granted a petition for review challenging the Federal Energy Regulatory Commission’s (FERC’s) denial of a rate filing submitted by the New York Independent System Operator (NYISO) in which assumptions underlying the rate filing included that the average commercial lifespan of a hypothetical new gas-fired “peaking plant” would be 17 years, rather than the 20 years assumed in previous filings. NYISO based this assumption on New York’s Climate Leadership and Community Protection Act (CLCPA) requirement for a zero-emissions electricity sector by 2040. The D.C. Circuit found that FERC’s rationale for its position that NYISO should continue to use a 20-year amortization period because the CLCPA did not require all fossil fuel-fired plants to cease operations by 2040 was insufficiently reasoned. The court said FERC’s precedents required NYISO to take into account currently effective laws and that FERC’s rejection of the NYISO filing based on a possibility that the CLCPA’s requirements might be altered was “squarely inconsistent” with these precedents. The court also was not persuaded by FERC’s arguments that compliance criteria for the CLCPA’s zero-emissions requirement were not finalized and that comments by NYISO’s Market Monitoring Unit suggested that the CLCPA did not require retirement of gas-fired power generators to satisfy the zero-emission requirement. Independent Power Producers of New York, Inc. v. Federal Energy Regulatory Commission, No. 21-1166 (D.C. Cir. Aug. 9, 2022)
Endangered Species Act Challenge to Offshore Drilling off California Stayed After Agencies Reinitiated Consultation
The federal district court for the Central District of California stayed a case brought by the Center for Biological Diversity that challenged 2017 determinations that offshore oil and gas activities on the Pacific Outer Continental Shelf off California were not likely to adversely affect species listed under the Endangered Species Act (ESA) as well as the failure to reinitiate consultation under the ESA in light of new information regarding impacts not previously considered. The new information included new studies regarding oil and gas drilling’s impact on climate change. The Bureau of Ocean Energy Management and Bureau of Safety and Environmental Enforcement requested reinitiation of consultation approximately three months after the lawsuit was filed, and they represented that they intended to update their oil spill risk analysis, consider newly designated critical habitat for two species of whale, and continue to review proposed actions for potential impacts to listed marine species. They anticipate providing a new consultation package to the National Marine Fisheries Service by February 28, 2023. Center for Biological Diversity v. Haaland, No. 2:22-cv-00555 (C.D. Cal. Aug. 26, 2022)
Montana District Court Found that It Was Not a Proper Venue for Challenge to Nationwide Permit 12
The federal district court for the District of Montana transferred to the district court for the District of Columbia a lawsuit challenging the Trump administration’s reissuance in early 2021of Nationwide Permit (NWP) 12 (which covers certain activities associated with oil and gas pipelines). The case presented the question of whether the federal defendants had rectified a lack of compliance with the Endangered Species Act (ESA) that the Montana district court identified in an earlier case. In the earlier case, the plaintiffs challenged the 2017 issuance of NWP 12, which would have permitted the Keystone XL pipeline, a project that the court said “posed a potential impact to ESA species in the State of Montana.” In the instant case, the court said the plaintiffs identified only one project that purported to use NWP 12 and that allegedly harmed their interests, but that the plaintiffs had identified no ESA-protected species or critical habitat in the area of that project. The court therefore found that no substantial parts of the events or omissions giving rise to the ESA claim had occurred in the District of Montana. The court further found that the only plaintiff that resided in Montana lacked standing to bring an ESA claim. Center for Biological Diversity v. Spellmon, No. 21-cv-47 (D. Mont. Aug. 18, 2022)
Parties Stipulated to Dismissal of Lawsuit Challenging Now-Expired Drilling Authorization in Carrizo Plain National Monument
The federal district court for the Central District of California granted a stipulation of dismissal of a lawsuit filed in 2020 to challenge the U.S. Bureau of Land Management’s approval of an application for a permit (APD) to drill within the Carrizo Plain National Monument. The challenged APD expired in May 2022, and the plaintiffs agreed to dismiss with prejudice their claims under NEPA, the Federal Land Policy and Management Act, and the 2010 Carrizo Plain National Monument Resource Management Plan. A fourth claim alleging failure to timely plug and abandon idle wells was dismissed without prejudice based on the U.S. Bureau of Land Management’s commitment to take the necessary steps to order and monitor the completion of well abandonment operations. Center for Biological Diversity v. U.S. Bureau of Land Management, No. 2:20-cv-11334 (C.D. Cal. Aug. 15, 2022)
Montana Federal Court Reinstated Moratorium on Federal Coal Leasing Program
The federal district court for the District of Montana vacated and remanded the final environmental assessment and finding of no significant impact that the U.S. Bureau of Land Management (BLM) prepared for former Secretary of the Interior Ryan Zinke’s 2017 order that terminated a NEPA review of the federal coal leasing program ordered by former Secretary of the Interior Sally Jewell and directed BLM to resume issuing coal leases. The court previously ruled that Zinke’s order constituted major federal action requiring NEPA review. At issue in this case was whether BLM’s subsequent review satisfied NEPA requirements. As an initial matter, the court held that Secretary of the Interior Deb Haaland’s order revoking Secretary Zinke’s order did not moot the claims because the coal leasing moratorium put in place by former Secretary Jewell remained revoked. On the merits, the court found that BLM’s environmental assessment did not satisfy NEPA and Administrative Procedure Act requirements because its limited analysis of four leases deemed traceable to the Zinke order failed to consider all direct, indirect, and cumulative impacts of restarting the coal leasing program. The court said BLM should have used a status quo of a moratorium on coal leasing as its baseline alternative and should not have presumed that the moratorium was limited to the three-year period anticipated for completion of the programmatic environmental impact statement for the coal leasing program. The court further found that BLM “arbitrarily curtailed” even its assessment of the four leases’ impacts. The court reinstated the moratorium pending completion of sufficient NEPA review. Citizens for Clean Energy v. U.S. Department of the Interior, No. 4:17-cv-00030 (D. Mont. Aug. 12, 2022)
BLM Agreed to Reconsider Extent of Oil and Gas Leasing Allowed in Uncompahgre Resource Management Plan
Conservation groups and federal defendants agreed to a settlement that resolved a lawsuit filed in 2020 challenging BLM’s and the U.S. Fish and Wildlife Service’s decisions authorizing the Uncompahgre Resource Management Plan (RMP). BLM, which previously committed in another lawsuit to complete Resource Management Plan Amendments for the Uncompahgre RMP to address Gunnison sage-grouse habitat and big game habitat areas, agreed to complete an RMP amendment process that will reconsider eligibility of lands open to oil and gas leasing, among other issues. BLM agreed not to issue new oil and gas leases in the Uncompahgre planning area until the RMP amendment is approved. Citizens for a Healthy Community v. U.S. Bureau of Land Management, No. 1:20-cv-02484 (D. Colo. Aug. 11, 2022)
Lawsuit Challenging New Mexico Oil and Gas Leasing Decisions Dismissed After BLM Reaffirmed Decisions
Conservation groups and federal defendants filed a joint stipulation for dismissal of the groups’ lawsuit challenging oil and gas leasing decisions for public lands in New Mexico. Pursuant to an April 2022 settlement agreement, BLM had agreed to review the challenged decisions and prepare supplemental environmental assessments. On August 1, 2022, BLM issued decision records affirming the previous decisions to issue the lease parcels. Under the April settlement agreement, any challenge to the new decisions must be made in a new action. Diné Citizens Against Ruining the Environment v. U.S. Bureau of Land Management, No. 1:20-cv-00673 (D.N.M. Aug. 11, 2022)
Montana Federal Court Ordered Additional Environmental Review of Powder River Basin Coal Leasing Plans
The federal district court for the District of Montana ordered BLM to conduct new NEPA analyses for Resource Management Plan Amendments for two field offices in the Powder River Basin in Montana and Wyoming. The court found that BLM failed to consider adequate alternatives or appropriately consider downstream impacts of non-greenhouse gas emissions when it undertook additional environmental review to comply with an earlier order by the court. The court said BLM’s supplemental analysis “treads the same error” of failing to consider any alternative that decreases the amount of coal practically available for leasing and that BLM failed to take the hard look at “all downstream effects of fossil fuel combustion” (not just downstream greenhouse gas emissions) that the earlier decision required. The court also denied a motion by BLM for remand without vacatur in which BLM suggested that, informed by comments received on the coal leasing program, it might conduct a revised screening based on climate change criteria. Western Organization of Resource Councils v. U.S. Bureau of Land Management, No. 4:20-cv-00076 (D. Mont. Aug. 3, 2022)
Washington Federal Court Adopted Finding that Navy Failed to Adequately Disclose Greenhouse Gas Emissions and Other Impacts of Increased Growler Aircraft Operations
The federal district court for the Western District of Washington adopted a report and recommendation finding that the Navy violated NEPA when it authorized expansion of EA-18G “Growler” aircraft operations at the Naval Air Station Whidbey Island. The report and recommendation found that the Navy had “turn[ed] a blind eye to data that would not support [its] intended result” of increasing Growler operations, including by underreporting Growler fuel emissions and failing to disclose that it was not including any emissions for flights above 3,000 feet, even after receiving a comment on this issue. Washington v. U.S. Department of the Navy, No. 2:19-cv-01059 (W.D. Wash. Aug. 2, 2022)
BLM Agreed to Supplemental Environmental Analysis for Oil and Gas Development on Public Lands in California
In two lawsuits concerning the impacts of oil and gas leasing on public lands in California, the federal defendants agreed to conduct additional analysis of environmental impacts. One case concerned BLM’s 2019 supplemental environmental impact statement (EIS) and record of decision for the Resource Management Plan for the Bakersfield Field Office, which BLM prepared pursuant to a settlement of a lawsuit challenged a 2014 RMP and associated EIS. Plaintiffs’ arguments included that the 2019 supplemental EIS failed to take a hard look at impacts of hydraulic fracturing, including impacts on greenhouse gas emissions and the climate. The second lawsuit challenged the Bakersfield Field Office’s offering for sale of seven oil and gas leases in Kern County. The settlement agreements provide for voluntary remand without vacatur for the federal defendants to prepare supplemental environmental documents. The analysis for the lease sales may be combined with the supplemental analysis for the RMP. Center for Biological Diversity v. U.S. Bureau of Land Management, No. 1:21-cv-00475 (E.D. Cal. July 29, 2022); Center for Biological Diversity v. U.S. Bureau of Land Management, No. 2:20-cv-00371 (C.D. Cal. July 31, 2022)
Pennsylvania Supreme Court Left Injunction on RGGI Regulations in Place but Denied Request to Reduce Bond
On August 31, 2022, the Pennsylvania Supreme Court denied the Pennsylvania Department of Environmental Protection’s request to reinstate a stay on the Commonwealth Court’s injunction on implementation of regulations providing for Pennsylvania’s participation in the Regional Greenhouse Gas Initiative. On September 8, the Pennsylvania Supreme Court denied an application by companies and organizations challenging the regulations to modify the injunction to eliminate a requirement for a bond of $100 million. Ziadeh v. Pennsylvania Legislative Reference Bureau, No. 79 MAP 2022 (Pa. Aug. 31, 2022); Bowfin Keycon Holdings, LLC v. Pennsylvania Department of Environmental Protection, No. 89 MAP 2022 (Pa. Sept. 8, 2022)
Maine High Court Said Ballot Question Ban Might Have Violated Transmission Project Developers’ Due Process Rights
In a challenge by the developers of the New England Clean Energy Connect (NECEC) project to a ballot question approved by Maine voters in 2021 that banned construction of certain electric transmission lines, the Maine Supreme Judicial Court remanded the case to the State’s Business and Consumer Docket for consideration of whether the developers had acquired vested rights to construct the project. The NECEC project is intended to carry hydroelectric power generated in Québec through Maine into Massachusetts. The court held that the ballot initiative would violate due process under the Maine Constitution to the extent that the developers had acquired vested rights. NECEC Transmission LLC v. Bureau of Parks & Lands, No. BCD-21-416 (Me. Aug. 30, 2022)
California Supreme Court Said CEQA Review of Oroville Dam Facilities Was Not Entirely Preempted
The California Supreme Court reversed in part a Court of Appeal’s decision holding that the Federal Power Act (FPA) preempted challenges to the Department of Water Resources’ (DWR) environmental review for renewal of a Federal Energy Regulatory Commission (FERC) license to operate the Oroville Facilities, which included a hydroelectric dam. The petitioners, Butte and Plumas Counties, challenged the sufficiency of the environmental impact report (EIR) prepared pursuant to the California Environmental Quality Act (CEQA), including for failing to adopt mitigation measures with respect to climate change. The Supreme Court concluded that the FPA would not preempt CEQA to the extent that the EIR informed decision-making about “matters outside FERC’s jurisdiction or compatible with FERC’s exclusive licensing authority,” such as DWR’s consideration of whether to request particular terms from FERC. County of Butte v. Department of Water Resources, No. S258574 (Cal. Aug. 1, 2022)
Minnesota Court Said Challenge to Minneapolis Redevelopment Project Was Untimely
A Minnesota state court dismissed a lawsuit challenging the City of Minneapolis’s approval of a redevelopment plan for the Upper Harbor Terminal on the west bank of the Mississippi River. The Star Tribune reported that the court found that the lawsuit was filed too late. The plaintiffs’ claims included that the City’s environmental review under the Minnesota Environmental Policy Act was inadequate, including because it failed to discuss the project’s contributions to climate change, mitigation of climate change, or the impacts of climate change on the project. Community Members for Environmental Justice v. City of Minneapolis, No. 27-CV-21-13100 (Minn. Dist. Ct. July 27, 2022)
NEW CASES, MOTIONS, AND OTHER FILINGS
Challenge Filed to FERC Authorization of Natural Gas Pipeline Capacity Project in Northeast
A not-for-profit organization filed a petition for review in the D.C. Circuit Court of Appeals challenging FERC’s authorization of the East 300 Upgrade Project, which is intended to increase the natural gas capacity of an existing pipeline. The project includes modifications of existing compressor stations in Pennsylvania and New Jersey and construction of a new compressor station in New Jersey. The petitioner asserted that FERC departed from D.C. Circuit precedent requiring evaluation of reasonably foreseeable indirect air pollution and greenhouse gas emissions from fossil fuel production and transportation project. In addition, the petitioner contended that FERC failed to consider whether the projects would comply with the emissions reduction mandates of the New York Climate Leadership and Community Protection Act in the Natural Gas Act analysis of whether the project was required by the public convenience and necessity. Food & Water Watch v. Federal Energy Regulatory Commission, No. 22-1214 (D.C. Cir., filed Aug. 19, 2022)
Environmental Groups Said NEPA Analysis for Alaskan Oil and Gas Exploration Program Failed to Adequately Consider Climate Impacts
Three environmental organizations filed a lawsuit in the federal district court for the District of Alaska challenging BLM’s approval of Emerald House’s Peregrine oil and gas exploration program in the National Petroleum Reserve-Alaska. The plaintiffs asserted that BLM failed to adequately discuss and analyze the programs impacts on climate change. They contended that BLM did not assess greenhouse gas emissions that would result from eventual production and consumption if the exploration program led to such activities and that BLM had evaluated “only a fraction” of direct emissions from exploration operations. Sierra Club v. Bureau of Land Management, No. 3:22-cv-00189 (D. Alaska, filed Aug. 25, 2022)
Environmental Groups Challenged Permit for Mixed-Use Development on Wetlands in South Carolina
A lawsuit filed by three South Carolina-based environmental groups challenged the issuance of a Clean Water Act permit authorizing the filling of wetlands for construction of a mixed-use residential and commercial development in Berkeley County near Charleston. The plaintiffs asserted claims under the Clean Water Act, NEPA, the Endangered Species Act, and the Administrative Procedure Act. Under the ESA, their arguments included that the biological opinion for the project failed to consider the impacts of climate change on the endangered red-cockaded woodpecker. Under the Clean Water Act, the plaintiffs contended, among other arguments, that the permit allowed for significant degradation of wetlands that would make residents more vulnerable to flooding and that unnecessary placement of development in locations vulnerable to future sea level rise, flooding, and storm surge would have significant adverse economic effects. Under NEPA, the plaintiffs asserted that the U.S. Army Corps of Engineers failed to take a hard look at the project’s impacts and that the proposed project required an environmental impact statement, including because of “unique risks posed regarding flooding and development within the floodplain.” South Carolina Coastal Conservation League v. U.S. Army Corps of Engineers, No. 2:22-cv-02727 (D.S.C., filed Aug. 17, 2022)
Plaintiffs Challenged Dredging Project in San Juan Bay, Alleging It Would Impair Transition from Fossil Fuels
Three organizations filed a lawsuit in the federal district court for the District of Columbia challenging the U.S. Army Corps of Engineers San Juan Bay Dredging Project. The plaintiffs alleged that “[t]he primary purpose of dredging is for larger tankers of liqu[e]fied natural gas (LNG) and petroleum to transit the bay” and that the Corps’ environmental review had “ignored how its decision locked in a fossil fuel pathway for Puerto Rico” and impaired a transition away from fossil fuels. They contended that the project would increase LNG imports to power plants whose emissions would worse climate change and air pollution. They also said the project risked an increase of wave action and changes to sea level near residential areas. They asserted claims under NEPA, the Clean Water Act, the Endangered Species Act, and the Administrative Procedure Act. El Puente v. U.S. Army Corps of Engineers, No. 1:22-cv-02430 (D.D.C., filed Aug. 16, 2022)
Lawsuit Filed to Compel Critical Habitat Designation for Hawaiian Species
Center for Biological Diversity filed lawsuit in federal court in Hawai‘i to compel the U.S. Fish and Wildlife Service (FWS) to designate critical habitat for 49 species listed under the Endangered Species Act in 2016. The species include 39 plant species and 10 animal species. The plaintiff alleged that the failure to designate critical habitat was made “more egregious” because the FWS had already recognized that the species’ already restricted habitats were threatened by urbanization, nonnative feral ungulates and plants, wildlife, and water extraction. The plaintiff further alleged that “habitat loss and degradation are expected to be exacerbated by climate change through sea level rise and coastal inundation,” leaving these “highly endemic species in danger of extinction throughout all or a significant portion of their range.” Center for Biological Diversity v. Haaland, No. 1:22-cv-00373 (D. Haw. Aug. 11, 2022)
Fossil Fuel Company Alleged Insurer Breached Duties to Defend and Indemnify in Climate Cases
A fossil fuel company defendant in Honolulu’s and Maui’s climate change lawsuits filed an action for breach of contract and declaratory relief against its insurer for failing to provide coverage in the Honolulu and Maui actions. The fossil fuel company said the insurer had incorrectly asserted that the qualified pollution exclusion of a 1985 commercial general liability insurance policy precluded defense and indemnity coverage in the underlying actions. The defendant alleged that it had incurred more than $880,000 in defense costs in connection with the underlying lawsuits and that it expected to continue to incur significant defense costs. Aloha Petroleum Ltd. v. National Union Fire Insurance Co. of Pittsburgh, No. 1:22-cv-00372 (D. Haw., filed Aug. 10, 2022)
FOIA Lawsuit Filed Seeking Records on USAID Employees’ Attendance at UN Climate Conference
Protect the Public’s Trust, which described itself as “an unincorporated association of retired and former public servants and concerned citizens that is dedicated to restoring public trust in government by promoting the fair and equal application of the rules and standards of ethical conduct to all public servants,” filed a Freedom of Information Act (FOIA) lawsuit against the U.S. Agency for International Development (USAID) seeking to compel disclosure of records concerning USAID employees’ in-person or remote attendance at the 2021 United Nations Climate Change Conference (COP26). The plaintiff alleged that disclosure of the records would “help the public understand how much money and other resources were spent to participate in the COP26 Conference and whether Department officials acted consistent with applicable laws and regulations in participating in the COP26 Conference.” The lawsuit also concerns a separate FOIA request for records concerning USAID Administrator Samantha Power. Protect the Public’s Trust v. U.S. Agency for International Development, No. 1:22-cv-2231 (D.D.C., filed July 28, 2022)
Lawsuit Alleged that Marketing of Natural Gas as Clean and Sustainable Violated D.C. Consumer Protection Law
Client Earth and two other organizations filed a lawsuit under the District of Columbia Consumer Protection Procedures Act (CPPA) alleging that Washington Gas Light Company falsely and deceptively marketed its natural gas products and services as “clean” and sustainable. They alleged that the utility and supplier of natural gas capitalized on consumer demand for reducing reliance on fossil fuels by marketing its products this way, including with statements that use of natural gas was a “key driver” of greenhouse gas reductions in D.C. and that natural gas provides “low carbon” energy that would help D.C. reach carbon neutral status. The plaintiffs alleged that natural gas is harmful to the environment and that its use “is not what reasonable consumers would consider ‘clean,’ … especially because it releases far more emissions than alternatives like renewable energy sources would.” They further alleged that Washington Gas’s natural gas products were “decidedly not ‘low carbon,’” and that Washington Gas’s disclosures that its low-carbon gas supply was 0% in 2018 and was planned to increase to 2% by 2025 “demonstrate[] just how misleading their ‘sustainability’ statements to consumers are.” They asked the District of Columbia Superior Court to make a declaration that Washington Gas’s conduct was in violation of the CPPA and to enjoin the conduct found to be in violation of the CPPA. They also sought costs disbursements, including attorneys’ fees. Client Earth v. Washington Gas Light Co., No. 2022 CA 003323 B (D.C. Super. Ct., filed July 28, 2022)
Renewable Energy Company Alleged Oregon Public Utility Commission Was Moving Too Slowly on Zero-Emissions Mandate
In June 2022, a company that invests in and manages affiliates that develop renewable energy and battery storage projects filed a lawsuit in Oregon Circuit Court contending that the Oregon Public Utility Commission had unreasonably delayed implementing a 2021 law’s requirement that retail electricity providers eliminate 100% of greenhouse gas emissions by 2040. The Commission moved to dismiss the case in August. NewSun Energy, LLC v. Oregon Public Utility Commission, No. 22CV21264 (Or. Cir. Ct., filed June 27, 2022)
HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART
FEATURED CASE
NGOs Filed Complaint to EU Ombudsman on Climate Impacts of Fossil Fuel Imports from Russia
Since the Russian Federation invaded Ukraine, the European Union has continued to import Russian oil and gas. EU imports constituted 61% of Russia’s fossil fuel exports (oil, gas, and also coal) in the first 100 days of the war. Oil and gas exports are an important part of the Russian economy, the revenues of which make up 45% of Russia’s 2021 budget, according to the International Energy Agency. The imports of Russian oil and gas are governed by Regulation 2015/478 of the European Parliament and of the Council of 11 March 2015 on common rules for imports. Article 1 of that Regulation states that such oil and gas shall be freely imported into the EU and shall not be subject to any quantitative restrictions. To decrease dependence on Russian oil and gas, the European Union has adopted REPowerEU, a plan to rapidly reduce dependence on Russian fossil fuels and fast-forward the green transition. The plan focuses on saving energy, diversifying energy supplies, accelerating the rollout of renewables, and smart investments. The plan has no specific timeframe to achieve its goals but aims to achieve the reduction “as soon as possible” and “well before 2030,” 2030 being the target set before the adoption of the plan. On May 25, 2022, Global Legal Action Network (GLAN), Avaaz, Notre Affairs à Tous, Deutsche Umwelthilfe, and Svitlana Romanko, co-founder of the Stand With Ukraine campaign, filed a complaint with the European Ombudsman, Emily O’Reilly, alleging that the EU failed to conduct an impact assessment before continuing its imports from Russia after the Russian invasion of Ukraine. The complainants contend that the EU is obliged to assess the impact of its oil and gas imports on both human rights and greenhouse gas emissions. The complaint states that the EU oil and gas imports are a critical source for Russia to finance its war efforts, thus contributing to the human rights violations it says are happening in Ukraine. At the same time, the complaint states that the Commission has not adequately assessed the implications for climate change of its current and planned measures to reduce Russian oil and gas imports. The complaint mentions that the Commission’s plan to find alternatives for Russian fossil fuels risks locking in fossil fuel use. The complaining parties ask the Commission to: (i) assess the full range of measures that are both available to the EU—including a full cessation of imports of Russian oil and gas—appropriate to ensure that the EU does not contribute to the ability of Russia to prosecute its war of aggression in Ukraine; (ii) examine—and consider other authoritative studies which examine—all available means of rapidly reducing reliance on Russian oil and gas within the EU; (iii) assess the implications for the EU’s greenhouse gas emissions of any measures it considers to reduce reliance on Russian oil and gas; and (iv) assess how a rapid reduction in the EU’s reliance on Russian oil and gas can be achieved in a manner that is most consistent with the imperative of reducing greenhouse gas emissions. The complaint states that the EU is obliged to respect international law in the exercise of its powers and that conducting an impact assessment is part of that obligation. In not conducting such an assessment, the EU has not acted in accordance with the principles of good administrative behavior. The complaint specifically mentions that the EU has violated articles 6 (proportionality) and 9 (objectivity) of the European Code of Good Administrative Behavior. After receiving the complaint, it is up to the Ombudsman’s office to determine whether the complaint warrants an inquiry. If the Ombudsman opens an inquiry, she can find that (1) there is no maladministration, (2) make a proposal to the institution to resolve the matter, or (3) find that there is maladministration and make recommendations to address the maladministration. The Commission then has three months to respond. Complaint to the European Ombudsman on oil and gas imports from Russia (European Union, EU Ombudsman)
DECISIONS & SETTLEMENTS
Council of State Allowed Fracking to Continue in Colombia Despite Climate Risks
On August 23, 2016, a Colombian citizen filed a lawsuit to challenge the validity of Decree 3004 of 2013 and Resolution No. 90341 of 2014 issued by the national government and the Ministry of Mines and Energy. These norms establish the criteria and requirements to perform fracking in Colombia. The petitioner argued that the challenged norms allowed fracking in Colombia, despite the significant number of scientific studies that substantiate fracking’s adverse and irreversible effects on human health and environmental stability. On July 7, 2022, the Council of State decided against the plaintiffs’ claims. The court found that there was no violation of the Constitution or Law 99 of 1993 and declared the challenged norms valid. The court considered that fracking was already authorized by other existing and valid norms and that the challenged acts were merely contributing to its regulation. The court reasoned that all fracking-related norms should be interpreted holistically and comprehensively, preventing the court from declaring, as argued by the plaintiff, that the challenged acts were insufficient or inadequate. The court decided that the challenged acts complemented the criteria and requirements to perform fracking. The court restricted the legal analysis to the possible contradiction of superior norms that could undermine the validity of the acts. However, the court concluded that this contradiction was not proved during trial. The court explicitly invoked the United Nations Framework Convention on Climate Change, among other norms, and stated that the precautionary principle is crucial for the protection of the climate system to the benefit of future and present generations. Moreover, the decision mentions that according to the expert witnesses and reports, fracking, and fossil fuel exploitation in general, prevent Colombia from reducing greenhouse gas emissions and contributing to the fight against climate change. Nevertheless, the court concluded the challenged acts did not violate the precautionary principle. According to the court, the precautionary principle does not require “zero risk scenarios,” but instead calls for controlled scenarios to reach environmental and economic development goals. In the court’s opinion, the challenged acts are part of a broader set of norms that regulate fracking in Colombia in a way that does not contradict any superior norm. Challenging criteria and technical requirements to perform fracking in Colombia (Colombia, Council of State)
Czech Republic and Poland Reached Settlement on Transboundary Environmental and Climate Impacts of Mine
The case concerns the operation of the Turów lignite mine that supplies lignite to the 1984 megawatt Turów power plant, both owned by the Polish Energy Group (PGE). Emitting almost 10 million tons of carbon dioxide each year, the plant has been on the EU’s list of power plants with the highest negative impact on climate for years. The axis of the dispute was the negative impact on groundwater in the Czech Republic. In 1994, the mine obtained a concession to extract lignite until 2020. In 2015, it requested an extension of the concession for six years. According to the Polish legislation, the extension was possible without conducting an environmental impact assessment (EIA). In March 2020, the mine received the requested prolongation until 2026. On September 30, 2020, the Czech Republic took Poland to the Court of Justice of the European Union (CJEU) (the General Court) under Article 259 of the Treaty on the Functioning of the European Union (TFEU), arguing that Poland’s extension of the concession was unlawful because no EIA had been conducted, as required by EU Directive 2011/92. The applicant claimed that the Republic of Poland’s actions were unlawful because they: (i) allowed the extension by six years of the development consent for the extraction of lignite without conducting an EIA, (ii) excluded the public from the procedure for granting the consent for extraction, (iii) declared the EIA decision to be immediately enforceable, (iv) failed to allow the intervention of the public and of the Czech Republic in the procedure, (v) failed to enable judicial review of the mining development consent granted, and (vi) failed to publish the mining development consent granted. As such, the Czech Republic argued that Poland had failed to fulfil its obligations under Directive 2011/92. In February 2021, the Czech Republic asked the CJEU for interim measures, requesting the immediate closure of activities of the lignite mine. The CJEU granted the interim measures by Order of the Vice-President of the Court of 21 May 2021. However, Poland did not comply with that order. On September 20, 2021, the CJEU ordered Poland to pay the European Commission a penalty of EUR 500,000 per day from the date of notification until it complies with the order. On February 3, 2022, the Court of Justice’s Advocate General (AG) Prita Pikamäe stated in his opinion that Poland had violated the EIA Directive. On February 4, 2022, the Czech Republic informed the CJEU that as a result of the settlement reached with Poland on the dispute, it waived all claims. Consequently, the court struck the case from the register by an order of the same date. Czech Republic v Poland (Mine de Turów) (European Union, General Court)
NEW CASES, MOTIONS, AND OTHER FILINGS
Brazilian Political Parties Challenge Fossil Fuel Subsidies on the Basis of a Just Energy Transition
On March 10, 2022, the political parties Rede Sustentabilidade (Rede), Partido Socialismo e Liberdade (PSOL), and Partido Socialista Brasileiro (PSB) filed a Direct Action of Unconstitutionality (ADI), with a request for a precautionary measure, against the Brazilian Congress. The case questions the constitutionality of articles 1 to 7 of Federal Law 14,299/2022, which establishes an economic subsidy to small-scale public service concessionaires and creates the Just Energy Transition Program. The applicants claim that the articles extend the contracting of electricity generated by the Jorge Lacerda Thermoelectric Complex (CTJL) with subsidies from consumers for another 15 years from 2025, and that this contracting includes the purchase of energy from the burning of coal and fossil fuels. Considering that the CTJL is the largest emitter of greenhouse gases (GHG) in the southern region of Brazil, the applicants allege that there is a violation of the Federal Constitution and the Paris Agreement (enacted by Federal Decree 9.073/2017), as well as the National Policy on Climate Change - PNMC (Federal Law 12,187/2009). They emphasize that the use of coal for energy generation is responsible for socioenvironmental disasters in the region, exacerbation of climate change, and damage to public health, especially in relation to populations that are already subject to socioeconomic disadvantages. They argue that the Just Energy Transition Program makes it possible to extend the operation of the CTJL until at least 2040. Further, the norm has not presented guidelines for the reduction of GHG by the Complex. On the contrary, the Just Energy Transition Program stated that there will be no abatement of carbon dioxide. Finally, the applicants argue that the composition established for the Just Energy Transition Program’s Council violates the principles of participatory democracy and equality, as there is no equalization of the number of seats allocated to government and civil society organizations and its composition does not reflect the participation of actors related to environmental and labor causes and the sustainable closure of mines. As a precautionary measure, the plaintiffs request that the Law is interpreted according to the Constitution, so that they are considered unconstitutional, and that the subsidy established by the Law is suspended and declared unconstitutional, suspending the effects of articles 4, 5, 6, and 7 of the Law. The plaintiffs request, as a final measure, that the Court (i) give an interpretation in accordance with the Constitution to articles 1, 2, and 3, considering them unconstitutional and prohibiting the granting of the subsidy under the terms of the Law and (ii) that articles 4 to 7 of Federal Law 14,299/2022 be declared unconstitutional. ADI 7095 (Complexo Termelétrico Jorge Lacerda) (Brazil, Supremo Tribunal Federal)
New Australian Claim Questions Impact of Offshore Projects on Great Barrier Reef
Scarborough is a proposed new gas project off the northwest coast of Western Australia that would cause an estimated 1.37 billion tons of greenhouse gas pollution over the next 25 years. Although the gas would be extracted off the coast of Western Australia and much of it burned overseas, it would affect the Great Barrier Reef in Queensland by fueling climate change, which is causing repeated coral bleaching events on the reef. Scarborough has never been approved under Australia’s federal environment protection law—the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act)—because offshore gas and oil projects are assessed in a streamlined process by the National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) and exempt from the EPBC Act’s operation. However, that exemption does not apply if an offshore project is likely to have a significant impact on the World or National Heritage values of the Great Barrier Reef. The applicant, the Australian Conservation Foundation (ACF), believes the greenhouse gas emissions that will result from the Scarborough project are likely to have a significant impact on the Great Barrier Reef. Accordingly, the ACF argues that the project should not be allowed to proceed unless it—and its impacts on the reef—are approved under the EPBC Act. Australian Conservation Foundation Incorporated v Woodside Energy Ltd & Anor (Australia, Federal Court of Australia)
Tiwi Island Citizens Challenge Offshore Oil Project in Australia for Failing to Consult with Traditional Communities
The applicant, Munupi Senior Lawman and Tiwi Traditional Owner Dennis Tipakalippa, is from the Tiwi islands, a biodiversity haven approximately 80 kilometers north of the Australian city of Darwin. The applicant is suing the National Offshore Petroleum Safety and Environmental Management Authority, the Australian Government’s offshore energy regulator, and an oil and gas company, Santos Limited, over the approval of plans to drill the Barossa gas field in waters off Northern Australia. The lawsuit asks the court to set the approval aside on the basis that Santos’ failure to consult with the applicant and his community invalidates the Environment Plan. Proceedings regarding an application for interlocutory injunction restraining Santos from commencing or continuing offshore drilling until the expedited final hearing, which was scheduled for six weeks after the proceedings for interlocutory relief, commenced July 13, 2022. After accepting that the applicant had demonstrated a prima facie case, the injunction was denied on the basis that drilling will not have gotten underway to a significant extent by the time the hearing comes about and based on earlier representations made by the applicant indicating he was prepared to accept harm occasioned by the drilling of one well over a short period in order to be availed of the opportunity to stop the vast majority of the approved drilling at an expedited hearing. Dennis Murphy Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority & Anor (Australia, Federal Court of Australia)