September 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 #186:

FEATURED U.S. CASES

Federal Courts Said Airline Deregulation Act Preempted Climate Washing Claims Against Airlines

In August 2024, two federal district courts ruled that the Airline Deregulation Act (ADA) preempted consumers’ state law claims that airlines misled consumers regarding their commitments to reduce greenhouse gas emissions.

On August 26, the federal district court for the Eastern District of Virginia held that the Airline Deregulation Act expressly preempted climate washing claims against the operator of KLM Royal Dutch Airlines (KLM). The ADA’s preemption clause provides that states “may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier.” The plaintiff asserted a claim under the Virginia Consumer Protection Act (VCPA) and a breach of contract claim based on allegations that KLM misled consumers with its “Fly Responsibly” initiative, which committed the airline to greenhouse gas emissions reductions consistent with the Paris Climate Agreement. (The plaintiff originally also brought an unjust enrichment claim but later withdrew it.) The plaintiff alleged that no credible evidence supported the claim that purchase of carbon credits, including for reforestation projects, would negate the effects of flying. The plaintiff also alleged that KLM’s limited use of sustainable aviation fuels would have a negligible impact on emissions. The court found that the VCPA claim was preempted because it relied upon enforcement of state law and because the plaintiff’s argument that KLM’s climate change-related marketing was misleading “certainly relates” to KLM’s service. The court also found that the ADA preempted the breach of contract claim. The court first noted that “the contours of the alleged contract are unclear” and also rejected the plaintiff’s argument that the defendant’s climate-related advertising should be incorporated into the terms of the contract. The court found, however, that the “larger issue” was that the breach of contract claim did not fit within an exception to ADA preemption for breach of contract claims alleging a defendant’s “breach of its own, self-imposed undertaking,” without “enlargement or enhancement based on state laws or policies external to the agreement.” The court found that the plaintiff’s breach of contract claim was a “thinly veiled repackaging of his VCPA claim” (i.e., based on state laws or policies) and that the preemption exception therefore did not apply. Long v. Koninklijke Luchtvaart Maatschappij, N.V., No. 3:23-cv-00435 (E.D. Va. Aug. 26, 2024)

On August 13, the federal district court for the District of Maryland held that the Airline Deregulation Act preempted a plaintiff’s climate washing claims against United Airlines, Inc. (United). The plaintiff asserted a claim under the Maryland Consumer Protection Act and a common law fraud claim (later withdrawn), alleging that he paid more to fly on United because the company was committed to reducing the impacts of flying, including by using sustainable aviation fuel. He alleged he would not have paid more had he known that only .025% of United’s fuel supply was SAF and that SAF still emits carbon dioxide and other pollutants. The court “easily” concluded that the MCPA claim related to United’s provision of transportation services and was therefore preempted by the ADA. The court further concluded that the claim should be dismissed with prejudice because “the deceptive provision of services is the heart of the claim,” and the plaintiff would not be able to amend the claim to escape dismissal. Zajac v. United Airlines, Inc., No. 8:23-cv-03145-PX (D. Md. Aug. 13, 2024)

DECISIONS AND SETTLEMENTS

Tenth Circuit Vacated 2020 District Court Decision Holding that 2016 Waste Prevention Rule Exceeded BLM’s Authority; Petition for Rehearing Filed

After the U.S. Bureau of Land Management (BLM) adopted a final rule in April 2024 that aimed to reduce waste of natural gas from venting, flaring, and leaks during oil and gas production activities on federal and Indian leases, the Tenth Circuit Court of Appeals vacated a district court’s 2020 ruling and judgment that vacated portions of the Obama administration’s 2016 rule that also aimed to reduce waste of natural gas. The district court held that the 2016 rule exceeded BLM’s authority under the Mineral Leasing Act and that BLM acted arbitrarily and capriciously in adopting the rule. The Tenth Circuit noted that all appellate parties agreed that the appeal from the district court’s 2020 ruling and judgment should be dismissed as moot. The Tenth Circuit further concluded, however, that it was appropriate to follow the general rule of vacating the district court’s ruling when a case becomes moot during appeal. Wyoming, North Dakota, Texas, Montana, Western Energy Alliance, and Independent Petroleum Association of America (Petitioners) had argued that the district court’s ruling should be left in place because some of the appellants were responsible for delaying the appeal until the regulation 2016 regulation was replaced, but the Tenth Circuit was not persuaded. The Tenth Circuit noted that practitioners and courts could continue to consult the district court’s 2020 ruling “for its potential value as persuasive authority.” Wyoming, North Dakota, Montana, and Texas have filed a separate lawsuit in the District of North Dakota challenging the 2024 rule. On August 27, the Petitioners asked the Tenth Circuit for panel rehearing requesting either that the court not vacate the district court’s judgment or clarify that BLM may not retroactively enforce the 2016 rule. Wyoming v. U.S. Department of the Interior, No. 20-8072 (10th Cir. Aug. 13, 2024)

D.C. Circuit Vacated FERC Reauthorization of Texas LNG Terminals and Gas Pipeline but Rejected Challenges to Analysis of Greenhouse Gas Emissions

The D.C. Circuit Court of Appeals vacated the Federal Energy Regulatory Commission’s (FERC’s) reauthorization of two liquefied natural gas (LNG) terminals in Cameron County, Texas, and a pipeline to carry gas to one of the terminals. FERC reauthorized the projects on remand from an earlier D.C. Circuit decision that found that FERC failed to adequately analyze climate change and environmental justice impacts. In considering FERC’s reauthorization, the D.C. Circuit found that FERC erred by declining to prepare a supplemental environmental impact statement to address its “entirely new and significantly expanded environmental justice analysis that reached new conclusions” and by failing to consider a proposed carbon capture and sequestration system for one of the terminals as part of its supplemental environmental review. The D.C. Circuit also found that FERC should have explained why it declined to consider air quality data from an air monitor that was closer to the projects than the monitor from which the project applicant’s analysis drew its data. The D.C. Circuit rejected challenges to FERC’s updated ozone and greenhouse gas analyses. The D.C. Circuit found that FERC had adequately responded to the court’s earlier decision by explaining why a Council on Environmental Quality National Environmental Policy Act (NEPA) regulation did not compel use of the social cost of carbon protocol to assess the significance of greenhouse gas emissions. Because it concluded that FERC had adequately explained why the NEPA regulation did not alter the greenhouse gas analysis, the D.C. Circuit also rejected the petitioners’ related argument that FERC did not explain greenhouse gas emissions’ role in its public interest determinations under the Natural Gas Act. In addition, the court concluded that it lacked jurisdiction to consider arguments that the petitioners did not make before FERC regarding whether other regulations required FERC to somehow evaluate the significance of greenhouse gas emissions. City of Port Isabel v. Federal Energy Regulatory Commission, Nos. 23-1174, 23-1221 (D.C. Cir. Aug. 6, 2024)

New York Federal Court Dismissed Some Defendants from Challenge to State’s Natural Gas Ban

In a challenge to New York’s ban on natural gas appliances and infrastructure in certain new construction, the federal district court for the Northern District of New York dismissed on sovereign immunity grounds claims against the New York Department of State, the New York State Fire Prevention and Building Code Council (Code Council), and individual members of the Code Council. The plaintiffs conceded that claims against the Department of State and the Code Council were barred by sovereign immunity but argued unsuccessfully that claims were not barred against individual Code Council members because the members were tasked with implementing the statutory ban by amending the Energy and Building Codes and were thus enforcing state law under the doctrine of Ex Parte Young. The court found that suing the individual members in their official capacity “is little more than an attempt to sue the State under a different name, because those members … do not have a sufficient connection to the enforcement of the relevant statute.” The court noted that although the statute directs the Code Council to incorporate the ban into the Codes, the law specifies that the Secretary of State and county or local governments will have enforcement authorities. The court also noted, moreover, that the Secretary, not the Code Council members, had final authority to review and approve the amendments. The court granted the plaintiffs’ request for dismissal without prejudice in light of “significant uncertainty” regarding whether dismissal on sovereign immunity grounds is jurisdictional (and thus necessarily without prejudice) or an affirmative defense. The court stated, however, that the plaintiffs would not be permitted to amend their complaint against the dismissed defendants. The court declined to limit relief sought against the Secretary of State to prospective relief at this juncture, given that there was no indication the plaintiffs were seeking relief beyond that scope. Mulhern Gas Co. v. Rodriguez, No. 1:23-cv-1267 (N.D.N.Y. Aug. 29, 2024)

New Mexico Federal Court Said Review of Magnesium Processing Mill’s Impacts on Air Quality Emissions Was Sufficient

The federal district court for the District of New Mexico remanded a case challenging the approval of a magnesium ore mining project to the U.S. Bureau of Land Management (BLM) for additional consideration of water quality impacts but found that BLM otherwise complied with the National Environmental Policy Act and the Federal Land Policy Management Act. The court found that BLM took the required “hard look” at reasonably foreseeable air quality impacts of an off-site processing mill, including impacts on emissions of the greenhouse gases carbon dioxide and sulfur hexafluoride. Friends of the Floridas v. U.S. Bureau of Land Management, No. 2:20-cv-00924 (D.N.M. Aug. 27, 2024)

Trial Set for December 2024 in Endangered Species Act Challenge to Montana’s Wolf and Coyote Trapping and Snaring Regulations

The federal district court for the District of Montana denied motions for summary judgment in advance of a December 2024 bench trial in conservation groups’ lawsuit asserting that Montana’s authorization of wolf and coyote trapping and snaring in grizzly bear habitat would result in unlawful take of grizzly bears under the Endangered Species Act, due in part to increased wintertime grizzly bear activity. Regarding the plaintiffs’ motions for summary judgment, the court found that there were unresolved factual issues regarding whether future grizzly bear takings by wolf and coyote traps were reasonably certain. The court also found that questions regarding whether coyote traps and snares threaten grizzly bears prevented partial summary judgment for agricultural groups that intervened as defendants. The court also rejected the defendants’ challenges to the plaintiffs’ notice of intent to sue and granted in part motions to compel expert disclosures. The court noted that the bench trial was scheduled to start on December 2, 2024. Flathead-Lolo-Bitterroot Citizen Task Force v. Montana, No. 9:23-cv-00101 (D. Mont. Aug. 28, 2024)

California Federal Court Said Environmental Reviews for Post-Wildfire Tree Removal Projects Were Adequate

The federal district court for the Northern District of California rejected challenges to the U.S. Forest Service’s environmental review of projects to remove dead and dying trees in nine National Forests in California after wildfires in 2020 and 2021. The court found that the record showed that the Forest Service considered a reasonable range of alternatives, took a hard look at potential environmental impacts, and reasonably determined that the project would not have a significant environmental impact. The plaintiffs had alleged that the Forest Service failed to properly analyze and disclose the project’s impacts on climate change and carbon storage, but the court’s decision did not address these issues. Klamath Forest Alliance v. U.S. Forest Service, No. 3:23-cv-03601 (N.D. Cal. Aug. 23, 2024)

Oregon Federal Court Rejected Challenge to Plaintiffs’ Standing in Lawsuit Regarding Air Force’s Plan to Expand Aircraft Training

The federal district court for the District of Oregon adopted a magistrate judge’s findings and recommendation and denied the U.S. Department of the Air Force’s motion to dismiss conservation groups’ lawsuit challenging the expansion of military aircraft trainings over the Owyhee Canyonlands of Oregon, Idaho, and Nevada. The groups’ allegations included that the Air Force failed to take a hard look at adverse impacts, including how climate change would exacerbate impacts on resources. The magistrate judge found that the plaintiff organizations’ allegations were sufficient to establish associational standing even though the complaint did not specifically identify individual members whose interests would be impaired. Oregon Natural Desert Association v. U.S. Department of the Air Force, No. 2:24-cv-00145 (D. Or. Aug. 23, 2024)

Federal Court Said Coal Mine Owner’s Action to Compel Accelerated EIS Schedule Was Prudentially Unripe

The federal district court for the District of Columbia granted in part and denied in part a motion to dismiss a lawsuit brought by the owner and operator of an underground coal mine in Montana alleging that federal defendants violated the National Environmental Policy Act (NEPA) by setting a schedule for completing an environmental impact statement (EIS) for expansion of the mine after expiration of NEPA’s statutory deadlines. NEPA, as amended in 2023, requires that an EIS be completed two years after certain trigger dates. In this case, the plaintiff contended that the trigger date was December 2, 2022, when the federal defendants represented that an EIS would be required after the Ninth Circuit found that the defendants violated NEPA, including by failing to provide an explanation for the conclusion that the mine expansion’s greenhouse gas emissions would not be significant. In February 2024, the defendants issued a schedule that projected completion of the EIS in May 2026. The district court found that the coal mine owner-operator had organizational standing because it alleged a sufficient procedural injury, as well as “necessary drain on its resources,” that were traceable to the defendants’ actions and redressable by judicial action. The court further found, however, that the case was prudentially unripe because the defendants had not yet missed the alleged deadline and the owner-operator was not likely to suffer further hardship from deferred judicial review. The court also denied conservation groups’ motion to intervene. Signal Peak Energy, LLC v. Haaland, No. 1:24-cv-00366 (D.D.C. Aug. 21, 2024)

Federal Court Vacated Biological Opinion for Gulf of Mexico Oil and Gas Development

The federal district court for the District of Maryland ruled that the 2020 biological opinion (BiOp) for oil and gas extraction in the Gulf of Mexico violated the Endangered Species Act and the Administrative Procedure Act. The court vacated the BiOp effective December 20, 2024 and remanded to the National Marine Fisheries Service (NMFS). This case had been stayed in August 2023 pursuant to an agreement pursuant to which the Bureau of Ocean Energy Management would implement measures to protect the Rice’s whale during a reinitiated consultation process. After oil and gas industry intervenor-defendants and the State of Louisiana successfully challenged the inclusion of two of the measures in Lease Sale 261 in the federal district court for the Western District of Louisiana, the stay was lifted in January 2024. The court’s decision vacating the BiOp found that the BiOp underestimated the risk and harms of oil spills to protected species; that the jeopardy analysis improperly assumed that the Rice’s whale and Gulf sturgeon populations remained as large as they were before the Deepwater Horizon oil spill; that the “reasonably prudent alternative” addressed only two stressors likely to jeopardize the Rice’s whale; and that the incidental take statement failed to recognize oil spill take as incidental take and did not rationally quantify the number of listed species taken by vessel strikes. The court said it was not necessary to reach certain arguments made by the plaintiffs, including two climate change-related arguments: (1) that historical spill data used by NMFS did not account for increased risk of a catastrophic spill due to factors that included climate change and (2) that NMFS failed to properly account for climate change in its jeopardy analyses. Sierra Club v. National Marine Fisheries Service, No. 20-cv-3060 (D. Md. Aug. 19, 2024)

Pennsylvania Federal Court Declined to Dismiss Climate Change Event Organizers’ First Amendment Claims Against City of Harrisburg

The federal district court for the Middle District of Pennsylvania denied the City of Harrisburg and the Harrisburg mayor’s motion to dismiss First Amendment claims brought by the organizers of an annual event to raise awareness about climate change. The court found that the plaintiffs’ allegations, taken as true, adequately stated claims that the City’s requirements for use of a City park, the fees allegedly charged for use of City streets and sidewalks, and the permitting scheme for banners on City-owned utility poles violated the plaintiffs’ First Amendment rights. Better Path Coalition Planning Group v. City of Harrisburg, No. 1:22-cv-00623 (M.D. Pa. Aug. 19, 2024)

Challenge to Berkeley Natural Gas Ban Dismissed After Repeal of Law

On August 12, 2024, California Restaurant Association (CRA) and the City of Berkeley filed a stipulation of voluntary dismissal without prejudice of CRA’s lawsuit challenging the City’s ban on natural gas infrastructure in new construction. The parties’ stipulation stated that they had “resolved this case in its entirety.” After the Ninth Circuit ruled that the Energy Policy and Conservation Act preempted the Berkeley ordinance, the City repealed the law in May 2024. California Restaurant Association v. City of Berkeley, No. 3:19-cv-07668 (N.D. Cal. Aug. 12, 2024)

Fish and Wildlife Service Proposed to List Climate Change-Threatened Cedar Key Mole Skink as Endangered After Settlement in Challenge to 2018 Decision Not to List

After reaching an agreement with Center for Biological Diversity in 2022 to resolve a lawsuit challenging the 2018 determination that listing of the Cedar Key mole skink under the Endangered Species Act was not warranted, the U.S. Fish and Wildlife Service (FWS) on August 8, 2024 published a proposal to list the species as endangered and to designate 2,713 acres of critical habitat in Levy County, Cedar Keys, Florida. FWS determined that the Cedar Key mole skink was endangered due to threats associated with climate change, specifically sea level rise, increased high tide flooding, and increased intensity of storm events. Center for Biological Diversity v. Haaland, No. 2:22-cv-14038 (S.D. Fla.)

Montana Federal Court Vacated Decision Not to List Upper Missouri River Arctic Grayling Under Endangered Species Act but Found that Climate Change Was Adequately Considered

In a lawsuit challenging the U.S. Fish and Wildlife Service’s (FWS’s) 2020 finding that listing of the upper Missouri River distinct population segment of Arctic grayling was not warranted, the federal district court for the District of Montana agreed with the plaintiffs regarding two aspects of FWS’s analysis but rejected other arguments, including an argument that FWS “irrationally and unlawfully dismissed climate-change threats.” FWS made the 2020 finding on remand from a 2018 Ninth Circuit decision finding that a 2014 finding that listing was not warranted included four errors. One error involved FWS’s reliance on cold water refugia that information showed would experience low stream flows and high water temperatures. Another error identified by the Ninth Circuit was a failure to adequately explain why uncertainty created by climate change did not weigh in favor of listing. In evaluating FWS’s 2020 finding, the district court found that FWS did not act arbitrarily or capriciously or contrary to law when it addressed higher water temperatures and low stream flows, the grayling’s ability to access thermal refugia, and thermal threats to the Ruby River grayling population. The court also found that the defendants adequately considered the cumulative effects of climate change, noting that FWS supplemented its earlier climate change analysis with new studies that provided information about interactions between climate change and other potential stressors. The court agreed with the plaintiffs that FWS’s reliance on benefits of a candidate conservation agreement with assurances between FWS and non-federal property owners without considering that it might cease to exist was arbitrary and capricious. The court also found that the determination that the Ruby River grayling population was viable and would provide redundancy was arbitrary and capricious. Center for Biological Diversity v. Haaland, No. 2:23-cv-00002 (D. Mont. Aug. 6, 2024)

Federal Court Dismissed Pro Se Plaintiff’s Lawsuit Alleging that Universities Failed to Adequately Educate Students About Climate Change

The federal district court for the Southern District of New York dismissed a lawsuit brought by a pro se plaintiff against four universities in New York and New Jersey, seeking to block them from “teaching their students, and thereby the public, that the future … will be one where climate change is manageable, and sustainability is achievable.” The court found that the plaintiff did not allege a concrete and particularized injury, only “generalized grievances.” The plaintiff therefore lacked standing. The court also found that the plaintiff failed to state any claim under the National Environmental Policy Act. Anderson v. State University of New York (SUNY), No. 1:24CV02083 (S.D.N.Y. July 29, 2024)

Oregon Federal Court Dismissed Claims Challenging Portland Restrictions on Bulk Fossil Fuel Terminals

The federal district court for the District of Oregon found that at least one plaintiff had standing to challenge City of Portland land use restrictions on new or expanded bulk fossil fuel terminals but granted the City’s motion to dismiss for failure to state a claim. The court agreed with a magistrate judge’s recommendation that the plaintiffs’ allegations were not sufficient to state a dormant Commerce Clause or Foreign Commerce Clause claim, that the plaintiffs failed to state a claim for preemption under the Interstate Commerce Commission Termination Act, and that they failed to allege a substantive due process claim. The district court declined to adopt two aspects of the magistrate judge’s dormant Commerce Clause analysis. Montana v. City of Portland, No. 3:23-cv-00219 (D. Or. July 5, 2024)

Federal Court Rejected Challenge to Forest Management Project

The federal district court for the District of Oregon found that the U.S. Bureau of Land Management (BLM) complied with the National Environmental Policy Act and the Federal Land Policy Management Act when it approved the Big Weekly Elk Forest Management Project and associated timber sales. The court’s decision did not address the complaint’s allegations that BLM failed to take a hard look at the project’s impacts on carbon sequestration and greenhouse gas emissions. The plaintiffs appealed. Cascadia Wildlands v. U.S. Bureau of Land Management, No. 6:23-cv-01358 (D. Or. June 28, 2024)

Louisiana Federal Court Found that Incarcerated Persons Were Entitled to Preliminary Injunctive Relief in Eighth Amendment Challenge to Heat Conditions on Angola Farm Line; Fifth Circuit Stayed Portions of Relief

The federal district court for the Middle District of Louisiana granted in part an application by incarcerated persons who labor on the “Farm Line” at the Angola penitentiary in Louisiana for a preliminary injunction or temporary restraining order enjoining agricultural labor on the Farm Line when heat index values exceed 88°F. The court found that the evidence at this stage showed that Angola’s heat-related policies were inadequate to mitigate risks of heat-related disorders, resulting in a substantial risk of serious harm. The court said the “worsening climate situation” in Louisiana and Angola compounded the inadequacies of the policies. The court further found that plaintiffs had shown a substantial likelihood of establishing that the defendants had been deliberately indifferent to these risks in violation of the Eighth Amendment. The court also found that the plaintiffs showed an immediate risk of irreparable injury and that the balance of interests favored an injunction. Citing the Prison Litigation Reform Act (PLRA) provision limiting relief in prison conditions lawsuits to remedies that reduce risk to “a socially acceptable level,” the court did not entirely enjoin operation of the Farm Line when the 88°F threshold was reached but instead ordered the defendants to “take immediate measures to correct the glaring deficiencies in their heat-related policies.” The court listed five sets of actions that the defendants were required take and required them to submit a memorandum regarding proposed remedies. The defendants appealed, and the Fifth Circuit Court of Appeals stayed three of the five required sets of actions, but not portions of the ruling that pertained to addressing deficiencies in the defendants’ policies regarding shade, rest, and provision of adequate protective gear. The Fifth Circuit found that the three stayed portions of the district court’s ruling reached beyond persons working on the Farm Line and that the relief was therefore overbroad under the PLRA. The Fifth Circuit also found that evidence did not demonstrate the defendants’ deliberate indifference with respect to the stayed portions of the district court’s order. On August 15, 2024, the district court issued a ruling and order finding that the defendants’ remedies in response to its order had been inadequate and directing them to take additional steps, including providing additional tents to provide shade and making changes to the break schedule. Voice of the Experienced v. LeBlanc, No. 3:23-cv-01304 (M.D. La. July 2, 2024 and Aug. 15, 2024), No. 24-30420 (5th Cir. July 5, 2024)

Illinois Federal Court Found that Crypto Hedge Fund Operators Defrauded Investors with Carbon Offset Bond Product

The federal district court for the Northern District of Illinois found that defendants who operated “crypto hedge funds” whose investment products included “carbon offset bonds” (COBs) committed civil violations of the Commodity Exchange Act. The Commodity Futures Trading Commission (CFTC), which brought the suit, described the COBs as promissory notes advertised as offering a collateral (Base Carbon Tons tokens) as security. The court found that the defendants defrauded investors by making material misrepresentations of fact. With respect to the COBs, the court found, for instance, that the defendants failed to inform COB purchasers that the same digital wallet holding the collateral was pledged as collateral to dozens of purchasers. The court also found that the CFTC established that the defendants misappropriated funds through the carbon offset program in a “classic Ponzi scheme” in which the defendants bought out investors in a collapsed fund at a pre-crash price, leaving the defendants with insufficient funds to pay COB participants what they were owed. The court also found that the defendants failed to register as a commodity pool operator (CPO) and committed CPO fraud. The court ordered restitution in the amount of customer losses (more than $85 million) and ordered disgorgement of collected commissions (almost $37 million). Commodity Futures Trading Commission v. Ikkurty, No. 1:22-cv-02465 (N.D. Ill. July 1, 2024)

D.C. Court of Appeals Reinstated Greenwashing Suit Against Coca-Cola

The District of Columbia Court of Appeals reversed the dismissal of a deceptive marketing lawsuit against Coca-Cola Company under the D.C. Consumer Protection Procedures Act (CPPA). The plaintiff, Earth Island Institute, alleged that Coca-Cola misled consumers regarding its environmental sustainability with statements that touted the company’s efforts to address packaging waste when the company actually was failing to take necessary steps to meet its sustainability goals. Allegedly misleading statements included that the company was taking a “leadership position” on the “interconnected global challenges of packaging waste and climate change.” As a threshold matter, the court found that Earth Island Institute had standing to bring the CPPA claim. On the merits, the Court of Appeals found that the plaintiff stated a facially plausible misrepresentation and rejected arguments that “aspirational” statements could not be actionable under the CPPA. The Court of Appeals also found that Coca-Cola’s claims regarding plastic packaging were “very much statements about its ‘goods and services’” for purposes of the CPPA. The appellate court also held that misleading misrepresentations did not have to be in a single statement to be actionable under the CPPA. In addition, the court rejected Coca-Cola’s argument that the First Amendment precluded the lawsuit. Earth Island Institute v. Coca-Cola Co., No. 22-CV-0895 (D.C. Aug. 29, 2024)

Maine High Court Upheld Utility Cost Allocation for Costs to Implement Climate Change-Related Policies

The Maine Supreme Judicial Court upheld a Maine Public Utilities Commission (PUC) order regarding the allocation to ratepayers of utilities’ costs related to power supply obligations and State energy programs, including “net energy billing” (NEB), a renewable energy incentive program. The PUC determined costs should be allocated to each class (residential, commercial, industrial) according to the class’s overall load share and that NEB costs should be recovered within each rate class through a fixed customer charge that did not change based on power usage. The PUC concluded that a fixed customer charge for NEB cost recovery was appropriate because everyone benefits from climate change mitigation policies, and a usage-based charge would result in some NEB program participants paying nothing. The court found that the PUC rationally concluded that NEB costs were not a component of traditional transmission and distribution service for which costs are allocated based on cost of service. The court also rejected the argument that rate design could not be based on the principle that all users benefit from climate change policies. The court found that the Maine Legislature “expressly requires the Commission to consider policies to reduce greenhouse gas emissions.” The court also concluded that the appeal was timely and not barred by collateral estoppel and that the allocation and rate design did not violate State statutes. The court declined to consider the argument that the Federal Power Act preempted the order because this issue was not raised before the PUC. Industrial Energy Consumer Group v. Public Utilities Commission, No. PUC-23-388 (Me. Aug. 8, 2024)

California Appellate Court Upheld Determination that Warehouse/Parcel Delivery Facility Would Not Significant Impact on Greenhouse Gas Emissions

Reversing a trial court, the California Court of Appeal concluded that substantial evidence supported the City of Upland’s finding pursuant to the California Environmental Quality Act that a 201,096-square-foot warehouse/parcel delivery service building would not have significant impacts on greenhouse gas emissions. The appellate court found that substantial evidence both supported the use of a 3,000 metric tons of carbon dioxide equivalent per year (MTCO2e/year) quantitative threshold for significance and showed that the project’s emissions would be below this threshold. The court did not consider the project developer’s alternative arguments that substantial evidence supported use of a 10,000 MTCO2e/year threshold or that consistency with the Upland Climate Action Plan demonstrated that the project would not have significant impacts on greenhouse gas emissions. In addition, the appellate court rejected the petitioner’s claim that the City undercounted the number of vehicles and vehicle trips the project would generate and therefore understated the impact the project would have on traffic, transportation, air quality, and greenhouse gas emissions. Upland Community First v. City of Upland, No. E078241 (Cal. Ct. App. Aug. 15, 2024)

California Appellate Court Said Greenhouse Gas Analysis for Fresno General Plan Amendment Was Inadequate

In an appeal of the dismissal of a challenge to the City of Fresno’s 2021 amendment to its general plan and the completion of a Program Environmental Impact Report (PEIR) under the California Environmental Quality Act (CEQA) to implement the plan, the California Court of Appeal found several failures to comply with CEQA and ordered that the City be required to revise the PEIR. The prejudicial errors identified by the appellate court included the City’s inappropriate assumption that statewide greenhouse gas emissions reduction targets were appropriate for Fresno. The appellate court said the City should have substantiated this assumption. The appellate court also found that the PEIR did not assure that greenhouse gas mitigation measures would be effective in reducing emissions so as not to have a significant impact and found that the City’s greenhouse gas reduction plan “clearly does not establish a mechanism to monitor progress.” The appellate court rejected an argument that the PEIR should have analyzed the general plan’s emissions over the plan’s lifetime; the court found that the PEIR appropriate considered an interim 2035 target. The court also rejected a challenge to the PEIR’s “population-based” metric for projecting growth. South Fresno Community Alliance v. City of Fresno, No. F086180 (Cal. Ct. App. Aug. 6, 2024)

Court Ordered New Jersey Attorney General to Produce Unredacted Retainer Agreement with Outside Law Firm in Climate Case

A New Jersey Superior Court ordered the New Jersey Office of the Attorney General (OAG) and the Division of Law, Department of Law & Public Safety, to produce an unredacted version of a retainer agreement between the defendants and a law firm retained as special counsel to the OAG in its climate change case against fossil fuel industry defendants and other litigation. The court rejected the defendants’ arguments that the redactions shielded material protected by the attorney client privilege and the work product doctrine. The court also found that the plaintiff was entitled to a reasonable attorney’s fee award under the Open Public Records Act. Government Accountability & Oversight v. Division of Law, Department of Law & Safety, No. MER-L-001396-23 (N.J. Super. Ct. June 11, 2024)

Harris County Settled Lawsuit Against Chemical Company that Operated Facility Where Fire Broke Out During Hurricane Harvey

Harris County Attorney Christian D. Menefee announced that the County had settled a lawsuit it brought against a chemical company (Arkema, Inc.) after a fire broke out at the company’s facility during Hurricane Harvey in 2017. The County alleged that the company violated local floodplain regulations and state air and water laws. The $1.1 million settlement required implementation of safety and flood mitigation measures and payment of funds that will go to the County’s general fund and be allocated through the Commissioners Court. The County Attorney’s announcement said the company had constructed a large detention pond, reinforced buildings to withstand flooding, and raised generators out of the floodplain, while also upgrading fire safety to meet current standards. The settlement also required that the company obtain fire safety and flood management permits before operations resume, and that significant releases of pollutants be reported within two hours. The County Attorney stated that “[a]s we continue to face the realities of climate change and the increasing frequency of severe weather events, it’s crucial that facilities housing hazardous materials are thinking about disaster preparedness plans. This settlement with Arkema sets a precedent for how we expect companies to operate and communicate during crises.” Harris County v. Arkema, Inc., No. 2017-76961 (Tex. Dist. Ct. Aug. 27, 2024)

NEW CASES, MOTIONS, AND OTHER FILINGS

States and Industry Sought Stay from Supreme Court of EPA’s Oil and Gas Sector Emissions Standards

Two applications for immediate stay of the U.S. Environmental Protection Agency (EPA) final rule establishing emissions standards and guidelines for the oil and natural gas sector were submitted to Chief Justice John Roberts in August 2024. Petitions challenging the rule are pending in the D.C. Circuit Court of Appeals, which denied requests for a stay on July 9, 2024. The first application to the Chief Justice was submitted by 23 states and the Arizona Legislature. The second application was filed by oil and gas companies and trade associations. The industry applicants characterized the final rule as “an authoritarian national command from EPA to the States and operators … that the States regulate, that violates the cooperative federalism embedded by Congress in Section 111 of the Clean Air Act.” They argued that the requirements impose significant irreparable harms, including “operational costs and barriers to continued operations” and irreversible investments and operational decisions. The states’ application contended that EPA had “attempted to conscript the backwater of Section 111(d)” to impose “presumptive” national standards of performance for states that do not meet an “unrealistic” two-year timeframe to establish their own standards. The states seek a stay limited to the Section 111(d) portion of the rule, and the industry applicants seek a stay of the entire final rule. Oklahoma v. EPA, No. 24A213 (U.S., filed Aug. 23, 2024); Continental Resources, Inc. v. EPA, No. 24A215 (U.S., filed Aug. 26, 2024)

Sustainable Business Organization Challenged Texas Law Restricting State Business with Companies that “Boycott” Fossil Fuel Companies

An organization that encourages sustainable investing and business practices filed a lawsuit in the federal district court for the Western District of Texas challenging Texas Senate Bill 13 (SB 13), a 2021 law that prohibits State entities from investing in or contracting with companies that “boycott fossil fuels.” SB 13 requires that certain State entities divest from financial companies that “boycott energy companies” and also generally prohibits governmental entities from contracting with companies for good or services unless companies confirm in writing that they do not “boycott energy companies.” The complaint alleged that implementation of SB 13 included preparation of a “blacklist” of financial companies that boycott fossil fuels and that the State Comptroller indicated that companies could be removed from the blacklist if they discontinued membership in organizations such as the Net Zero Asset Managers Initiative that advocate for addressing climate change and other sustainable practices. The organization asserted that SB 13’s divestment and procurement provisions infringe on freedom of speech and association in violation of the First Amendment and also are unconstitutionally vague in violation of the Fourteenth Amendment. In addition, the complaint asserted that the law’s provisions prohibiting lawsuits challenging the law and requiring parties that challenge the law to pay the opposing party’s attorneys’ fees and costs regardless of outcome infringed on the plaintiff’s right of access to the courts in violation of the First Amendment. American Sustainable Business Council v. Hegar, No. 1:24-cv-01010 (W.D. Tex., filed Aug. 29, 2024)

Plaintiffs Said Biological Opinion for Forest Management Project Failed to Justify “No Jeopardy” Conclusion for Northern Spotted Owl

Conservation groups challenged the U.S. Fish and Wildlife Service’s (FWS’s) conclusion that certain forest management activities that would “take” northern spotted owls in the Shasta-Trinity National Forest were not likely to jeopardize the owl’s continued existence. The groups alleged that this “no jeopardy” conclusion was arbitrary, capricious, and contrary to the Endangered Species Act, including because the FWS’s biological opinion failed to adequately account for “how climate change may amplify the effects of the Project—and vice versa.” The complaint also asserted that the U.S. Forest Service violated the Endangered Species Act by relying on the biological opinion. Klamath Forest Alliance v. U.S. Fish & Wildlife Service, No. 2:24-cv-02347 (E.D. Cal., filed Aug. 28, 2024)

Lawsuit Alleged that Amendments to North Pacific Fishery Management Plans Relied on Outdated Ecosystem Information

Oceana filed a lawsuit in the federal district court for the District of Alaska challenging the National Marine Fisheries Service’s (NMFS’s) approval of amendments to fishery management plans for fisheries in the North Pacific. The complaint alleged that the amendments’ revisions of the plans’ descriptions of essential fish habitat (EFH) failed to adequately evaluate and identify fishing effects on EFH and also failed to describe and identify EFH, minimize adverse effects on EFH, and identify actions to promote conservation and enhancement of EFH in violation of the Magnuson-Stevens Fishery Conservation and Management Act. In addition, the plaintiffs asserted violations of the National Environmental Policy Act, including because NMFS relied on a “severely outdated” 2005 environmental impact statement even though there had been “significant changes in the North Pacific ecosystem since 2005 bearing on the decision to adopt the EFH amendments,” including “loss of sea ice, changes in food web dynamics, and shifts in the abundance and distribution of various species.” Oceana, Inc. v. National Marine Fisheries Service, No. 3:24-cv-00180 (D. Alaska, filed Aug. 16, 2024)

Plaintiffs Alleged that Environmental Review of Portland Highway Project Understated Emissions

A lawsuit filed in federal district court in Oregon challenged the review and approval of a highway expansion project in Portland. The plaintiffs asserted violations of the National Environmental Policy Act, the U.S. Department of Transportation Act, the Federal Highway Act, and the Administrative Procedure Act. Regarding climate change, the complaint alleged that analysis of emissions was contingent on transportation modeling that misused data and erroneously relied on assumptions regarding vehicle fleet composition and turnover that artificially reduced emissions. No More Freeways v. U.S. Department of Transportation, No. 3:24-cv-01311 (D. Or., filed Aug. 9, 2024)

Former Employee Said Publishing/Data Analytics Company Engaged in Greenwashing

A former employee of RELX PLC—which he called “the world’s largest global publishing house” that “owns the most renowned data analytics companies”—alleged that after working at the company from 2014 to 2020 he discovered that the company and two subsidiary companies (the defendants) were engaged in greenwashing because “their business conduct [was] actively supporting fossil fuel expansion while they pledged to protect the climate as part of their public-facing marketing.” The plaintiff alleged that the defendants misled shareholders, consumers, the scientific community, and the public. Alleged misrepresentations included signing on to the “Climate Pledge” to minimize climate impacts consistent with Paris Agreement goals and to support global efforts to achieve net zero emissions before 2050. The complaint alleged that the companies’ business practices were at odds with these commitments, including support for new fossil fuel projects after 2021, omitting mention of publication of journals for oil and gas technology and strategies for petroleum exploration, supporting (through a political action committee) “politicians who deny climate change,” working with companies “who have been prosecuted for perpetuating environmental harm,” and providing services and publications to support fossil fuel companies. The plaintiff alleged that when he “decided to speak up to Defendants regarding his climate-related concerns,” the defendants intimidated, harassed, and eventually terminated him. The plaintiff claimed that the company’s actions violated the Americans with Disabilities Act, the Fair Employment Practices Act, and the Securities Exchange Act. He also asserted claims of promissory estoppel and wrongful discharge in violation of clearly established public policy. Lyall v. Elsevier Inc., No. 1:24-cv-12022 (D. Mass. Aug. 6, 2024)

Life Science Facility Developer Filed Lawsuit Seeking Damages Related to Agreement to Incorporate Floodwall into Manhattan Building

The developer of a commercial life science facility along the East River in Manhattan filed a lawsuit in the federal district court for the Southern District of New York alleging that New York City Health and Hospitals Corporation (H+H) and New York City Economic Development Corporation (EDC) had engaged in a fraudulent scheme to induce the developer into committing to incorporate a floodwall into a new building’s foundation. The complaint alleged that the defendants had determined after Superstorm Sandy that it was “imperative” to construct the floodwall and that the developer had agreed to cooperate with the defendants to integrate the floodwall into the new building’s foundation. The developer alleged that H+H and EDC concealed from it that floodwall design criteria were not final, that construction of the facility would be delayed for years, and that the developer would not be reimbursed for its floodwall-related costs. The developer alleged that it had sustained tens of millions of dollars in damages and millions of dollars in lost profits and had been denied “the benefits and fruits of its contractual option.” The complaint asserted causes of action for fraudulent inducement or, alternatively, breach of contract. ARE-East River Science Park, LLC v. New York City Health & Hospitals Corp., No. 1:24-cv-05956 (S.D.N.Y., filed Aug. 6, 2024)

Gas-Fired Power Plant Operator Challenged New York’s Climate Law-Based Denial of Permit

The operator of a natural gas-fired power plant in Yates County, New York filed a lawsuit in New York Supreme Court challenging the New York State Department of Environmental Conservation’s (DEC’s) denial of its application to renew its Clean Air Act Title V operating permit. The operator asserted that DEC lacked authority under New York’s Climate Leadership and Community Protection Act (CLCPA) to deny the permit based on DEC’s determination that the application would be inconsistent or interfere with statewide greenhouse gas emission limits. The operator also alleged that DEC misinterpreted the CLCPA not to require that DEC determine whether a justification for the application existed or to identify alternatives and mitigation measures. The complaint alleged that DEC’s interpretation would permit the agency “to function as New York State’s de facto climate czar, determining on an ad hoc subjective basis what facilities should be permitted to operate or be shut down based on climate change considerations alone.” In addition, the operator alleged that the decision was based on DEC’s improper policy determination that the facility’s emissions could never be justified because DEC “disapproved of the end use of the electricity generated by the Facility, namely, behind-the-meter cryptocurrency mining.” The operator also asserted that DEC’s determination that the application would not be consistent with greenhouse gas emissions limits was arbitrary and capricious because the operator had reduced emissions by 70% from 1990 levels and had agreed to further reductions consistent with the law’s 2030 target. The operator also contended that DEC’s interpretation of the CLCPA would violate the Supremacy Clause because the agency’s determination did not comply with the New York Independent System Operator’s federally approved tariff. Greenidge Generation LLC v. New York State Department of Environmental Conservation, No. 2024-5221 (N.Y. Sup. Ct., filed Aug. 15, 2024)

Sierra Club Challenged Environmental Review for 63-Unit Subdivision in San Diego County

Sierra Club challenged the County of San Diego’s mitigated negative declaration (MND) under the California Environmental Quality Act for the Greenhills Ranch Phase 2 Project, a 63-home subdivision on 19 acres. The petition alleged that the MND lacked substantial evidence to support its conclusion that environmental impacts would not be significant, including impacts on wildfire safety, greenhouse gas emissions, and biological resources. Sierra Club alleged that greenhouse gas emissions that would result from the project would contravene the County’s climate goals, State greenhouse gas reduction targets, and State laws to reduce vehicle miles traveled. Sierra Club v. County of San Diego, No. _ (Cal. Super. Ct., filed July 3, 2024)

HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART

FEATURED CASE

South Korea: Constitutional Court Finds Climate Law Partially Unconstitutional

On March 13, 2020, nineteen youth activists filed a complaint in the South Korean Constitutional Court alleging that the nation’s climate change law violates their fundamental rights, including the right to live and a clean environment. On February 15, 2024, this case, 2020Hun-Ma389, was consolidated with three others: 2021Hun-Ma1264, 2022Hun-Ma854, and 2023Hun-Ma846.

On August 29, 2024, in a unanimous decision, the Constitutional Court found that Article 8, Paragraph 1 of the Framework Act on Carbon Neutrality and Green Growth is not in conformity with the Constitution, ordering the National Assembly to amend the law by February 28, 2026. The Constitutional Court found that the lack of legally binding targets for reductions beyond 2031 violated the constitutional rights of future generations and failed to uphold the government’s duty to protect those rights.

The court dismissed other claims challenging the Carbon Neutrality Basic Plan and the enforcement decrees of the Framework Act on Carbon Neutrality and Green Growth. (2020Hun-Ma389, 2021Hun-Ma1264, 2022Hun-Ma854, 2023Hun-Ma846 (consolidated), Constitutional Court, South Korea)

DECISIONS AND SETTLEMENTS

Brazil: Court Finds Conflict Between New Law Weakening Indigenous Protections and Supreme Court’s Climate Decision

In December 2023, the Articulation of Indigenous Peoples of Brazil (APIB), the Socialism and Liberty Party, and the Sustainability Network filed a Direct Action of Unconstitutionality (ADI) with a request for a preliminary injunction. The action seeks a declaration of unconstitutionality of provisions in Federal Law No. 14,701/2023, which were previously vetoed by the President of the Republic but later overturned by the National Congress.

It is argued that the approved law represents a regression in the fundamental rights of Indigenous peoples, such as the elimination of the right to free, prior, and informed consultation, the original right to their historically occupied territories and collective ownership, and the rights to life and culture. The action contends that the rights of Indigenous peoples have been attacked by parliamentary majorities in opposition to decisions of the Supreme Federal Court, which, in its counter-majoritarian role, safeguards fundamental rights.

In September 2023, the Supreme Federal Court concluded the judgment of Extraordinary Appeal (RE) 1,017,365 with recognized general repercussion (Topic 1,031), where the “timeframe thesis” was rejected by a majority of the Court, reaffirming the protection of Indigenous territorial rights and environmental protection in the context of the climate emergency. Subsequently, members of Congress revived, under an expedited regime, legislative bills contrary to the established jurisprudence, including Bill No. 490/2007, which was later approved as Federal Law No. 14,701/2023 and enacted with certain articles vetoed. It is emphasized that Indigenous Lands contribute to climate balance, as they are essential for the protection of biodiversity, forests, and water resources. The approved law, therefore, contains various forms of unconstitutionality and puts environmental assets at risk, with the potential to exacerbate deforestation and the climate emergency.

The action requests a preliminary injunction to suspend the effectiveness of the challenged articles of Law No. 14,701/2023. On the merits, the action seeks a ruling in favor of the claims, confirming the preliminary injunctions and declaring the challenged provisions of the law unconstitutional. The action further seeks recognition, per Articles 231 and 232 of the 1988 Federal Constitution, that the territorial rights of Indigenous peoples are fundamental rights and immutable clauses. An incidental request for a preliminary injunction was also submitted, highlighting the increase in violence against Indigenous peoples in territorial disputes following the enactment of Federal Law No. 14,701/2023. The request presents a scenario of territorial rights violations and escalating environmental degradation, and it seeks to suspend the effectiveness of the challenged provisions of the Law.

The request for a preliminary injunction was addressed in a joint decision on other related claims. Justice Gilmar Mendes, the reporting judge, identified a conflict between the provisions of Law No. 14,701/2023 and the Supreme Federal Court’s ruling in RE 1,017,365/SC, as well as statements by the Inter-American Court of Human Rights on the matter. He ordered the suspension of all judicial proceedings discussing the constitutionality of the challenged law. He also ordered the notification of all parties in the concentrated control actions under review, as well as the Heads of the Executive and Legislative Branches, the Attorney General’s Office, and the Federal Prosecution Office, to present proposals for resolving the disputes through consensual means within 30 days. (ADI 7582 (Indigenous Genocide Law), Federal Supreme Court, Brazil)

China: Court Finds Power Generation Company Has Violated Carbon Trading Obligations

Beijing Grassland Alliance Environmental Protection Center, supported by three other NGOs, sued Xingyi Shangcheng Power Generation Company Limited. The plaintiff raised eight demands, focusing on three key issues:

1. Environmental Damages: The plaintiff accused the defendant of engaging in long-term practices that included emitting waste gas, dust, and key pollutants above standard levels, tampering with or forging pollution monitoring data, and failing to maintain automatic monitoring equipment. The plaintiff argued that these actions constituted an environmental tort and requested the court to hold the defendant accountable for civil liabilities. The plaintiff sought court orders for the cessation of the infringement, the elimination of pollution risks, environmental restoration, compensation for the loss of environmental services, and a public apology.
2. Carbon Emissions: The plaintiff alleged that the defendant exceeded the permissible limits for carbon dioxide emissions. As a result, the plaintiff requested the court to evaluate the atmospheric damage caused by these excessive emissions and demanded that the defendant be held accountable for ecological damage and required to provide compensation.
3. Carbon Quotas: The plaintiff argued that the defendant failed to pay for 821,596 tons of carbon emission quotas during the first compliance period of the carbon trading system, despite exceeding the allowable carbon dioxide emissions. The plaintiff requested that the court order the defendant to pay for 818,148 tons of carbon credits and implement energy-saving measures, pointing out that the defendant had only purchased 3,448 tons as of January 2022.

The defendant responded by asserting that their pollutant emissions had never exceeded legal limits and had not caused environmental damage. They also claimed that their failure to purchase additional carbon quotas was not intentional but resulted from confusion about compliance deadlines and financial difficulties. Furthermore, they argued that their actual carbon emissions were significantly lower than the amounts calculated by the government when penalties were imposed, and they requested a review of these administrative penalties. Additionally, the defendant contended that the judiciary lacked jurisdiction over this case, asserting that only administrative liability should apply.

On June 7, 2024, the Court rendered its decision.

1. Environmental Tort: The court found that the defendant’s emissions of sulfur dioxide and dust, which exceeded the legal limits, constituted an environmental tort, making them civilly liable. However, since the defendant had rectified the issue before the lawsuit and the environmental damage did not require further restoration, the plaintiff’s request to stop the infringement and restore the environment was denied. However, the court awarded the plaintiff 9,400 CNY in compensation for the loss of ecological services.
2. Carbon Emissions and Quotas: The court ruled that the defendant had not exceeded emissions standards for waste gas or nitrogen oxides (except during equipment malfunctions), and that the plaintiff failed to prove that the defendant’s non-payment for additional carbon quotas had caused environmental damage. However, the court underscored the future risks associated with excessive carbon dioxide emissions and stressed the importance of stringent control, even though current Chinese law does not classify carbon dioxide as a pollutant, nor does it have specific emission standards for it. The court affirmed the defendant’s obligation to pay for the extra carbon quotas, noting that this obligation was fulfilled during the litigation process.
3. The court concluded that the defendant’s repeated failure to fulfill its carbon trading obligations, despite multiple reminders, was unlawful and contrary to the goals of mitigating climate change and protecting the legal rights of current and future generations.

To sum up:

1. The court ruled that it has jurisdiction over failure to comply with carbon trading obligations.
2. Although Chinese law does not currently classify carbon dioxide as a pollutant, its emissions are still subject to stringent controls, and entities responsible for excess emissions must fulfill their obligations accordingly. (Beijing Grassland Alliance Environmental Protection Center v. Xingyi Shangcheng Power Generation Company Limited, the Court of Qianxinan Buyei and Miao Autonomous Prefecture, China)

Romania: Court Overturns Approval of Mining Project for Failure to Consider Climate Impacts

On the 25th of November 2022, the plaintiff DECLIC, an NGO, brought an application for judicial review before the Cluj Administrative Court, challenging the Environmental Endorsement No. 7/2022 (hereinafter EE No. 7/2022) issued by the first defendant (EPA Hunedoara) for the Urban Development Plan –Rovina mining project within the Mining License Area, Hunedoara County, on the following grounds:

1. The sheer absence of the assessments required by the SEA procedure for the issuing of EE No. 7/2022, namely:
   • The lack of a transboundary impact assessment from a threefold perspective: the size of the project and the extremely large area to be cleared (200 hectares of protected forest); the transboundary nature of the underground and surface watercourses; the transboundary nature of the climate change impacts of the project.
   • Failure to carry out an appropriate assessment under Article 6(3) of the Habitats Directive (92/43/EEC) and the correspondent national statutory instrument, namely the Government Emergency Ordinance (hereinafter GEO) 57/2007.
   • Failure to assess climate change impacts in line with Article 19 of the Government Decision 1076/2004 in conjunction with Annex I of the SEA Directive.
   • The lack of a long-term assessment of the project’s impact on surface and groundwater.
2. Failure to conduct public consultation in a cross-border context.
3. The formal completion of certain procedures in violation of mandatory environmental legislation, i.e. lack of an effective public consultation procedure on the environmental report in violation of Article 6 of the Aarhus Convention and Article 10 of the Rio Declaration.
4. The lack of accreditation of the experts who drew up the environmental report that constitutes the basis for the issuance of the EE No. 7/2022.

On the 30th of October 2023, the Court of First Instance handed down their judgment, granting the plaintiff’s claim.

The main arguments put forward by the trial judge read as follows: As climate change is not confined to the territorial boundaries of a single state, the court holds that the deforestation proposed by the project may have a major significant effect on the environment of another state. The climate impact of the plan must be considered as a whole, in the sense that the combined result of all the elements that can cause climate damage must be considered. Given that the plan proposed by Samax has a significant effect on the environment of another State, and that it is obvious that this condition has been met, at least in relation to Hungary, it was obligatory to comply with the legal provisions relating to these hypotheses, which was not done in the present case, the failure to comply with each of the legal obligations constituting a ground for the illegality of the Environmental Endorsement No 7/2022 issued by the first defendant.

On the 25th of April 2024, the Cluj Court of Appeal upheld the judgment in this respect. Furthermore, the superior court granted the NGO’s appeal, namely upholding the decision for reasons additional to those given by the trial judge: (1) the environmental endorsement was unlawful in view of the fact that it was based on an environmental report drawn up by a non-accredited entity; (2) the adequate assessment study under the Habitats Directive is a mandatory requirement at the SEA stage. (Declic v Euro Sun Mining (through its subsidiary Samax Romania) et al., Cluj Court of Appeal, Romania)

NEW CASES, MOTIONS, AND OTHER FILINGS

Brazil: Public Prosecutor’s Office Sues Federal, State, and Local Governments over Recent Climate Disasters

On June 6th, 2024, the Federal Public Prosecutor’s Office (MPF) filed a Civil Public Action (CPA), with a request for an injunction, against the Federal Government, the state of Rio Grande do Sul (RS) and nine municipalities in the Taquari Valley (RS) due to climatic events that occurred between September and November 2023 and April and May 2024. Subsequently, the National Association of Dam-Affected People (ANAB) was also allowed to join the lawsuit.

The CPA seeks recognition of governmental omission/inefficiency in the disasters that occurred, and the determination of structural measures for better coordination between the federal entities in the implementation of public policies for climate adaptation and disaster adaptation and response. It is claimed that the state of Rio Grande do Sul has been victimized by disasters, the frequency and intensity of which are increasing due to climate change. It is argued that the flooding in the municipalities of the Taquari Valley demonstrates the existence of flawed climate governance whose emergency response and prevention systems are inadequate for crises. In contrast, it is argued that effective management of extreme events requires coordinated action between the different sectoral policies and the federal, state and municipal levels of government intending to prevent new disasters and recover affected areas. Moreover, the predictability of the event and human action are stated as important elements in potentiating the disaster, giving rise to civil liability of the defendants for damages caused, without the possibility of invoking any exclusion of causality. It is mentioned that the action aims to guarantee climate justice, recognizing that extreme weather events have a more severe impact on vulnerable communities, which have contributed less to GHG emissions and have fewer resources to adapt and recover.

Thus, it is stated that mitigation strategies must be implemented simultaneously with climate adaptation measures, a duty expressly established in Article 4 of the National Policy on Climate Change (PNMC). It is argued that only with sustainable urban planning strategies, with the active participation of communities and based on the best techniques, will it be possible to build resilient solutions capable of reducing vulnerabilities to disasters. This requires structural and non-structural measures to control flooding and urban drainage systems, the revision of City Planning, the improvement of warning and hydrological control systems and the training of communities. Considering this panorama, the preliminary injunction requires compliance with a series of immediate measures listed in the initial petition to deal with the crisis. Medium and long-term measures are also listed, which are not exhaustive, to establish initial parameters for a joint solution to the issue with the other defendants. Thus, in the final instance, it is requested (i) that the defendants be ordered, with the active participation of the social groups affected, to draw up a restructuring plan, through incremental, successive and/or simultaneous measures, for the areas affected, with due regard for climate adaptation and resilience; (ii) that the form of participation of the groups affected be established; (iii) that a dynamic be established for monitoring the restructuring plan by a committee with representatives from segments of civil society and the government. (Federal Public Prosecutor’s Office and ANAB v. Federal Government and others (Structural litigation over climate disaster in Rio Grande do Sul), Rio Grande do Sul Federal Court, Brazil)

Brazil: Complaint Alleges Fossil Fuel Regulation Unlawfully Discriminates Against Distributors

On February 5th, 2024, the Democratic Renewal Party (PRD) filed a Direct Action of Unconstitutionality (ADI) with a preliminary injunction request. The action seeks a declaration of unconstitutionality of Articles 4(I), 6, 7, 9, and 10 of Law No. 13,576/2017, which regulates the National Biofuels Policy (RenovaBio) and other provisions. By extension, it seeks a declaration of unconstitutionality of Articles 1 to 8 and 12(IV to VII) of Decree No. 9,888/2019, all articles of National Agency of Petroleum, Natural Gas, and Biofuels (ANP) Resolution No. 791/2019, and Articles 6(II to VII), 8(II), 11(§3), and 13 of Normative Ordinance No. 56/GM/MME/2022, which violate norms outlined in the Federal Constitution, the principles of reasonableness and proportionality, as well as articles of the Paris Agreement, an international human rights treaty with supra legal force.

The violation allegedly arises from the discrimination against fossil fuel distributors, as they are the only ones required by the contested norms, individually and under penalty of fines, to purchase CBios (financial obligations) to fulfill the formal duty of proving compliance with the annual mandatory target for reducing greenhouse gas (GHG) emissions. This creates discrimination among agents, violating the polluter-pays principle, the principle of equality, environmental protection, economic order, and consumer protection. This results from holding only fossil fuel distributors responsible for decarbonizing the entire fossil fuel chain, despite other agents in the chain also emitting, thereby affirming the inefficacy of the program’s model. It is argued that the current RenovaBio model has created an inefficient and asymmetric public policy with severe negative environmental, social, and economic impacts, such as increased fuel prices, inflation, and GHG emissions—resulting from the undisputed increase in fossil fuel consumption—that produce outcomes contrary to the commitments made under the Paris Agreement and in conflict with constitutional principles.

As an interim relief, the suspension of the effectiveness of the contested provisions is sought until the action is adjudicated. On the merits, a declaration of unconstitutionality of the contested provisions is requested, with erga omnes effect and retroactive effect (ex tunc), or alternatively, that these normative acts be interpreted in accordance with the Constitution, provided that: (i) the annual and individual mandatory targets are assigned to all agents in the fossil fuel chain, in proportion to their GHG emissions; (ii) the supply of CBios is proportional to the mandatory demand, with penalties for non-compliance with the annual and individual targets prohibited in cases where CBios are unavailable on the market; (iii) an annual and individual mandatory target is established for the production or importation of biofuels; (iv) a transparency system is established to verify the reinvestment in biofuel production from the revenue obtained; and (v) standards of reasonableness and proportionality are met in setting and applying the fines for non-compliance with individual targets, and the provision for suspension of the obligated party’s activities as a sanction for non-compliance with individual targets through the sale of CBios is excluded. (ADI 7596 (RenovaBio and Unlawful Interference in Economic Activity), Federal Supreme Court, Brazil)

Germany: Constitutional Complaint calls German Federal Climate Protection Act Inadequate

The constitutional complaint to the German Federal Constitutional Court challenges the reformed German Federal Climate Protection Act. The NGO “Deutsche Umwelthilfe” and 11 other complainants aged 14 to 27 are the plaintiffs. The complainants argue, among other things, that the reform violates the principle of intergenerational freedom (as developed by the Federal Constitutional Court in its 2021 Neubauer ruling) and infringes on the right to life and physical integrity.

The constitutional complaint is one of three complaints filed by five German environmental organizations together with plaintiffs from all parts of society against the inadequate climate policy of the federal government and, in particular, the new Climate Protection Act (KSG). In addition to Deutsche Umwelthilfe (DUH), Greenpeace, Germanwatch, the German Federation for the Environment and Nature Conservation (BUND), and the Solar Energy Promotion Association of Germany (SFV) have each filed a complaint.

Already, DUH, along with some of the plaintiffs, achieved a landmark ruling in 2021 in which the Federal Constitutional Court granted constitutional status to the right to climate protection. The core of the reform, against which the constitutional complaint is directed, consists in the fact that the federal government’s climate protection measures only need to be measured against a cross-sectoral and multi-year total calculation. The government’s actions are now based on a projection to comply with the cross-sectoral summed annual emission totals for only three periods: the period 2021-2030, the period 2031-2040, and the period 2041-2045. Only if the projection data show an exceedance of the summed annual emission totals for the decades 2021-2030 or 2031-2040 for two consecutive years does the federal government have to take additional climate protection measures (§ 8 (1) and (4) KSG). However, adjustments for the decade 2031-2040 are not to be made until after 2030. (Steinmetz, et al. v. Germany III, Federal Constitutional Court, Germany)

Japan: Youth Plaintiffs Bring Suit Against Thermal Power Companies for CO₂ Emissions

Sixteen young people from Japan nationwide, from Hokkaido to Kyushu, filed a case in the Nagoya District Court against 10 thermal power companies, including JERA Corporation, asking for an injunction against CO₂ emissions based on the scientific standards. To ensure the plaintiffs and young people across Japan live tomorrow and in the future, the defendants, the major Japanese electric power companies, must decarbonize by at least the 2030s to limit the rise in average global temperatures to 1.5°C above pre-industrial levels. This case demands the defendants’ implementation of the emission reductions required by science. As we enter the era of “global boiling,” temperature rises are approaching 1.5°C worldwide, including in Japan, which has already experienced extreme heat of over 40°C.

On July 25, UN Secretary-General António Guterres stated that temperature will continue to rise. He also noted that extreme heat is the new normal, which is increasingly straining economies, increasing inequality, and costing people their lives. He pointed out the anthropogenic climate change caused by the use of fossil fuels as the cause, to call for accelerated emission reductions. The situation requires immediate and decisive action. The CO₂ emissions of Japan’s power generation sector (390 million tons), including the defendants, equates to 16th place in the global ranking of emissions by country. It is also Japan’s largest emitting sector, accounting for about 40% of Japan’s energy-derived CO₂ emissions. The International Energy Agency (IEA) and the G7 agreement also demand carbon neutrality of the power sector by 2035. The defendants of 10 companies, Japan’s largest thermal power producers including JERA, are responsible for 333 million tons of CO₂ emissions (in 2019), equivalent to 33% of Japan’s energy-derived CO₂ emissions. The Intergovernmental Panel on Climate Change (IPCC) calls for a 48% reduction in CO₂ emissions by 2030 and a 65% reduction by 2035 compared to 2019 levels to achieve the 1.5°C target (50% confidence). Avoiding dangerous climate change is the world’s greatest common concern, to reduce emission reductions to the levels required by the IPCC.

Large emitting companies in Japan, a developed country, are also obligated to reduce their emissions to this level. The same should be applied to the defendants, the power generators, as a minimum obligation. However, the 2030 reduction targets proposed by the defendants are not only below the requisite level but are also extremely inadequate in that they continue to use coal-fired power generation, etc., relying on technically unproven technologies such as hydrogen, ammonia co-firing, and carbon capture and sequestration, all of which have little effect on emission reduction. Moreover, the defendants have not even set the 2035 target at all except JERA, which has set only a 40% reduction target from 2019 levels. In light of these circumstances, it is nearly impossible to assert that they are developing a plan that aligns with the 1.5°C objective. The plaintiffs filed this case, in order to be protected from the even more severe impact of climate change, claiming the court’s order for the defendants to fulfill their legal obligation to reduce their emissions. The plaintiffs also expect the defendants to shift to renewable energy. (Youth Climate Case Japan for Tomorrow, Nagoya District Court, Japan)

Portugal: Plaintiffs Appeal Dismissal of Lawsuit Against Portuguese State for Failure to Comply with Climate Law

On November 26, 2023, three NGOs (Associação Último Recurso, Quercus and Sciaena) filed a complaint against the Portuguese State, pursuant to the Portuguese Class Action Statute (i.e., Law no. 83/95, of 31 August 1995).

They indicate that the Portuguese State adopted in 2021 a Climate Framework Law (i.e., Law no. 98/2021, of December 31, 2021), according to which the Portuguese State, until February 1, 2023, had an obligation to adopt several measures (including to enact laws and other political acts) aimed at achieving the GHG emissions reduction goal of 55% until 2030, in comparison with the emissions values of 2005.

These measures include the adoption of the carbon budgets for 2023/2025 and 2025/2030; a report of assessment of the climate impact of the legislation in force; the regulation of the climate risk and impact of financial products; an amendment to the rules in relation to corporate governance; and an amendment to the legal regime on the exploration for, and exploitation of, hydrocarbons. Moreover, the plaintiffs claim that other deadlines until the end of 2023 and early 2024 are likely to be failed.

Accordingly, the plaintiffs ask the court (1) to declare that the Portuguese State has not complied with its obligations pursuant to the Portuguese Climate Framework Law, which realizes the human and fundamental rights listed in the Constitution and in the European Convention on Human Rights, and implements the Portuguese Nationally Determined Contribution submitted under the Paris Agreement; and (2) to require the State to adopt the laws and political acts necessary to comply with the Climate Framework Law.

On April 11, 2024, the court of first instance dismissed the proceedings. The plaintiffs appealed, and the Supreme Court’s decision is expected in September or October. (Associação Último Recurso et al v. Portuguese State, Lisbon Civil Court, Portugal)