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UPCOMING EVENTS
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Tuesday, September 24, 2019, 7-8:30 PM
Climate Change, Water Security, and National Security for Jordan, Palestine, and Israel
Columbia Law School, Jerome Greene Hall, Room 103
Friday, September 27, 2019
Ford Foundation Center for Social Justice
Register here
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FEATURED PUBLICATION
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HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 124.
FEATURED CASE
Oregon Federal Court Dismissed Climate Case That Claimed a “Right to Wilderness”
The federal district court for the District of Oregon dismissed a lawsuit in which two nonprofit organizations and six individuals claimed that climate change and the government’s failure to protect them from climate change violated their constitutional rights. The court ruled that the plaintiffs failed to allege the particularized harm necessary for standing because climate change is “a diffuse, global phenomenon that affects every citizen of the world.” The court further ruled that it lacked jurisdiction to make the “policy decisions” that would be required to grant the relief sought by the plaintiffs, which related to federal policies on fossil fuels, agriculture, logging, and family planning. In addition, the court found no basis for the plaintiffs’ assertions of a fundamental right to wilderness and therefore found that they failed to state a claim upon which relief could be granted. The court distinguished the district court’s decisions in Juliana, writing that the Juliana plaintiffs “did not object to the government’s role in just any pollution or climate change, but rather catastrophic levels of pollution or climate change.” The court also said the right to a “stable climate system” at issue in Juliana was narrower than the right to wilderness for which the plaintiffs advocated in this case. Animal Legal Defense Fund v. United States, No. 6:18-cv-01860 (D. Or. July 31, 2019).
DECISIONS AND SETTLEMENTS
Maryland Federal Court Declined to Stay Remand Order in Baltimore’s Climate Case Against Oil and Gas Companies; Stay to Remain in Place While Companies Seek Stay in Fourth Circuit
On July 31, 2019, the federal district court for the District of Maryland denied oil and gas companies’ motion for a stay of the June 10 remand order returning the Mayor and City Council of Baltimore’s (Baltimore’s) climate change lawsuit to state court. The companies had sought to stay the remand order until the Fourth Circuit resolves their appeal. Instead, a stay agreed to by Baltimore will remain in place pending the resolution of the companies’ anticipated motion for a stay in the Fourth Circuit. Although the district court agreed with the companies that removal of the case based on application of federal law raised “complex and unsettled” legal questions, the court concluded that appellate jurisdiction in this case would likely extend only to the issue of whether the case was properly removed under the federal officer removal statute, an issue on which the court concluded the companies had not demonstrated a substantial likelihood of success. The court further found that the companies had not demonstrated irreparable harm since the appeal would only be rendered moot in the event a state court entered final judgment before the appeal was resolved. The court also was not persuaded that the cost of litigating in state court would cause irreparable injury and disagreed with the companies’ contention that federal courts were “uniquely qualified” to address the issues presented in the case. Regarding the harm to the opposing party and weighing the public interest, the district court found that the impacts of further delay of litigation on the merits of Baltimore’s claims weighed against a stay. The court also noted that even if the remand order were vacated, interim proceedings in state court “may well advance” the case’s resolution in federal court. Briefing in the Fourth Circuit has already begun, with the opening brief filed by the oil and gas companies on July 29, 2019. The companies argue that the Fourth Circuit has jurisdiction to consider their appeal and that Baltimore’s claims were properly removed on multiple grounds. Baltimore’s response brief is due by August 27, 2019, and any reply brief is due within 21 days of service of the response brief. Mayor & City Council of Baltimore v. BP p.l.c., No. 1:18-cv-02357 (D. Md. July 31, 2019), No. 19-1644 (4th Cir.).
Federal Court Granted State of Rhode Island’s Motion to Remand Climate Change Case Against Oil and Gas Companies, but Stayed Remand Order for 60 Days
The federal district court for the District of Rhode Island remanded the State of Rhode Island’s climate change lawsuit against oil and gas companies to state court. The court found that the companies had not carried their burden of showing that the case belonged in federal court. First, the court rejected the companies’ arguments that the State artfully pleaded its claims to avoid federal jurisdiction. The court said federal common law—which the defendants said necessarily governed the State’s claims—could not completely preempt the State’s public nuisance claim “absent congressional say-so.” The court also was not persuaded that the Clean Air Act or foreign affairs doctrine completely preempted the state-law claims. In addition, the court found that the issues of foreign affairs, federal regulations, and navigable waters raised by the companies were not disputed and substantial federal issues that the federal court could entertain “without disturbing any congressionally approved balance of federal and state judicial responsibilities.” The court said the federal issues were issues that the defendants “may press in the course of this litigation, but that are not perforce presented by the State’s claims.” The court also rejected the defendants’ arguments for removal under “bespoke jurisdictional law,” i.e., the Outer Continental Shelf Lands Act, federal enclave jurisdiction, the federal officer removal statute, the bankruptcy removal statute, and admiralty jurisdiction. The court stayed the remand order for 60 days to allow the parties to brief whether a stay pending appeal is warranted. Rhode Island v. Chevron Corp., No. 1:18-cv-00395 (D.R.I. July 22, 2019).
D.C. Circuit Upheld Authorizations for Atlantic Sunrise Natural Gas Pipeline Project
The D.C. Circuit Court of Appeals dismissed challenges to the Federal Energy Regulatory Commission’s (FERC’s) authorization of the Atlantic Sunrise Project, a natural gas pipeline expansion extending from Pennsylvania to Alabama. With respect to climate change, the court rejected the argument that FERC had not factored downstream greenhouse gas emissions into its environmental review. Although the court agreed with the petitioners that FERC was obligated to consider both the direct and indirect effects of the project and that downstream greenhouse gas emissions are “just such an indirect effect,” the court found that FERC had already taken the required steps by estimating the amount of carbon dioxide emissions resulting from the gas that the project would transport and predicting that those emissions would be partially offset by reductions in higher carbon-emitting fuel that the project’s natural gas would replace. The court said the petitioners failed to identify “what more [FERC] should have said.” The court also rejected a claim that FERC improperly segmented its review of the Atlantic Sunrise Project by failing to consider the project’s “synergistic effect” on emissions associated with the Southeast Market Pipeline. Allegheny Defense Project v. Federal Energy Regulatory Commission, No. 17-1098 (D.C. Cir. Aug. 2, 2019).
Ninth Circuit Affirmed Dismissal of Challenge to Coal Mining on Navajo Land
The Ninth Circuit Court of Appeals affirmed the dismissal of a lawsuit challenging federal agency actions that reauthorized coal mining activities on land reserved to the Navajo Nation. The Ninth Circuit agreed with the district court that the Navajo Transitional Energy Company (NTEC)—a corporation wholly owned by the Navajo Nation and the owner of the coal mine—was a required party that could not be joined due to tribal sovereign immunity. The Ninth Circuit further concluded that the district court had not abused its discretion in determining that the lawsuit could not proceed without NTEC. Diné Citizens Against Ruining Our Environment v. U.S. Bureau of Indian Affairs, No. 17-17320 (9th Cir. July 29, 2019).
D.C. Circuit Denied Rehearing of Determination That Organization Lacked Standing to Challenge Review of Natural Gas Compression Facilities
The D.C. Circuit Court of Appeals denied petitions for rehearing and rehearing en banc of its judgment that it lacked jurisdiction to hear a challenge to the Federal Energy Regulatory Commission’s review of natural gas compression facilities in New York because the organizational petitioner failed to demonstrate Article III standing. Otsego 2000, Inc. v. Federal Energy Regulatory Commission, No. 18-1188 (D.C. Cir. July 22, 2019).
Federal Court Postponed Remedies Ruling to Allow Federal Defendants to Complete Environmental Assessment of Ending Federal Coal Moratorium
The federal district court for the District of Montana postponed its remedies ruling in the case challenging Secretary of the Interior Ryan Zinke’s lifting of the Obama administration’s moratorium on federal coal leasing. In April 2019, the court ruled that the lifting of the moratorium was subject to the National Environmental Policy Act (NEPA), and in May, the federal defendants issued a 35-page draft environmental assessment (EA). Although the plaintiffs argued that the appropriate remedy for the defendants’ failure to comply with NEPA was vacatur and contended that the draft EA did not overcome the deficiencies, the court concluded that it was appropriate to postpone a ruling on remedies to allow the federal defendants to complete their environmental review. The defendants told the court that they anticipated they would reach a determination on whether an environmental impact statement was required by August 5, 2019. Citizens for Clean Energy v. U.S. Department of the Interior, No. 4:17-cv-00030 (D. Mont. July 31, 2019).
Federal Court Declined to Enjoin Activity on Challenged Oil and Gas Leases
The federal district court for the District of Columbia denied a request by plaintiffs to enjoin the U.S. Bureau of Land Management (BLM) from authorizing new oil and gas drilling on Colorado and Utah leases challenged in this case. The court previously granted BLM’s motion for voluntary remand of the National Environmental Policy Act environmental review documents associated with the Colorado and Utah leases so that BLM could supplement its review in accordance with the court’s March 2019 decision finding the analysis of greenhouse gas emissions associated with Wyoming leases also at issue in the case to be deficient. The court said the motion to reconsider its remand order was not the proper vehicle for obtaining injunctive relief and concluded it could not amend its remand order to grant injunctive relief in the absence of any briefing on the merits of the plaintiffs’ claims pertaining to the Colorado and Utah leases. The court also denied the plaintiffs’ motion to enforce its March 2019 order to continue enjoining activity on the Wyoming leases. Because BLM had completed supplementary analysis by preparing revised environmental assessments and findings of no significant impact and because the court declined “to second-guess BLM’s performance of its duties,” the court found that the plaintiffs had received the relief provided by the March 2019 decision. The court said the plaintiffs would have to supplement their complaint to raise any new claims regarding BLM’s revised analysis. The court warned BLM, however, that it would “not hesitate to unwind any improper grants of authority to drill on the Wyoming, Colorado, or Utah land.” WildEarth Guardians v. Bernhardt, No. 1:16-cv-01724 (D.D.C. July 19, 2019).
Federal Court Cited Absence of Consideration of Climate Change Effects in Granting Preliminary Injunction That Restricted Grazing on Federal Allotments in Oregon
The federal district court for the District of Oregon partially granted three conservation groups’ motion for a preliminary injunction barring grazing on certain allotments. The plaintiffs asserted that the federal defendants violated NEPA, the Federal Land Policy and Management Act, and BLM regulations when they renewed the grazing permits of a family-owned Oregon ranching corporation whose officers had been convicted of intentionally setting fires on public lands and were later pardoned by President Trump. The court found that the plaintiffs had shown a likelihood of success on the merits of their NEPA claim and had demonstrated irreparable harm from the level of grazing authorized in the renewed permits (though not at the reduced level proposed by the defendants). In considering the defendants’ basis for arguing that there would be no irreparable harm, the court noted that evaluations and assessments on which the defendants relied did not consider the proposed grazing’s impacts in combination with other factors such as climate change or take into account current conditions such as the effects of climate change and fire. The court also said that the fact that grazing had taken place on the allotments in the past did not prevent the plaintiffs from demonstrating irreparable harm since circumstances had changed, including due to climate change causing increased temperatures. Western Watersheds Project v. Bernhardt, No. 2:19-cv-00750 (D. Or. July 16, 2019).
Federal Court Declined to Add Climate Change Documents to Record in Coal Lease Challenge
The federal district court for the District of Utah declined to add 14 documents related to climate change to the administrative record in a challenge to a federal coal lease. The plaintiffs had argued that the documents should be added to assist the court in determining whether significant new information about climate change arose after the environmental impact statement (EIS) was prepared in 2002 that would require a supplemental EIS. The court said the federal agencies had not ignored the issue of climate change in making their decision to issue the lease and therefore found no clear deficiency in the record. The court also found that the plaintiffs failed to show that the agency actions could not be properly reviewed without the additional documents. The court did allow the addition of other documents to the record and also found that discovery would be unnecessary. WildEarth Guardians v. Zinke, No. 2:16-cv-00168 (D. Utah July 8, 2019).
Connecticut Federal Court Said Resiliency Concerns Did Not Require Further Attention to Bridge Alternatives
The federal district court for the District of Connecticut granted summary judgment to federal and state transportation agencies and officials in a lawsuit challenging the environmental review for a bridge replacement project in Norwalk, Connecticut. The court was not persuaded by the plaintiffs’ arguments that the defendants had failed to consider the resiliency benefits of a fixed bridge alternative. The court said the decision not to move forward with the fixed bridge options was reasonable and that resiliency considerations did not create a requirement that the defendants consider a low-level fixed bridge option. Norwalk Harbor Keeper v. U.S. Department of Transportation, No. 3:18-cv-0091 (D. Conn. July 8, 2019).
Maryland High Court Said State Law Preempted Local Land Use Authority over Solar Energy Systems
The Maryland Court of Appeals ruled that state law preempted local zoning authority with respect to solar energy generating systems (SEGS) that require a Certificate of Public Convenience and Necessity issued by the Maryland Public Service Commission. The question of state and local authority to determine whether and where SEGS can be constructed arose in a case concerning a SEGS to be built on two contiguous farms totaling 86 acres. After landowners challenged local approvals for the SEGs, the SEGS developer sought a pre-appeal determination challenging the court’s jurisdiction on the ground of state law preemption by implication. The Court of Appeals affirmed lower court determinations that the state public utilities law preempted by implication local authority approval for siting and location and SEGS. The Court of Appeals said the state law was comprehensive and specifically gave local authorities an advisory role. In describing the statutory framework for the public utilities law, the court noted the intent of the legislature to reduce greenhouse gas emissions and to move the energy market away from reliance on fossil fuels. Board of County Commissioners of Washington County v. Perennial Solar, LLC, No. 66 (Md. July 15, 2019).
Iowa Supreme Court Upheld State Utilities Board’s Approval of Dakota Pipeline
The Iowa Supreme Court affirmed the Iowa Utilities Board’s approval of the construction of the Dakota Access pipeline and use of eminent domain for easements for the pipeline. Among the arguments rejected by the court was the petitioners’ contention that the pipeline did not meet the constitutional definition of “public use” under the Iowa Constitution and the Fifth Amendment of the U.S. Constitution. The court recognized that “a serious and warranted concern about climate change underlies some of the opposition to the Dakota Access pipeline” and that as a matter of policy a carbon tax might be appropriate to force all players in the marketplace “to bear the true cost of their carbon emissions.” However, the court determined that “policy making is not our function, and as a legal matter we are satisfied that the Dakota Access pipeline meets the characteristics of a public use under the Iowa and United States Constitutions.” Puntenney v. Iowa Utilities Board, No. 17-0423 (Iowa May 31, 2019).
New York Appellate Court Said Town Did Not Have to Consider Potential Benefits of Quarry on Climate Change-Affected Water Levels
A New York appellate court rejected claims that a town board in upstate New York erred when it conducted its environmental review of a law that created a wildlife refuge overlay district in which mining was prohibited. One of the petitioner mining company’s arguments was that the town board should have considered a proposed stone quarry’s potential beneficial impacts on water levels in light of the effects of climate change. The appellate court said the town board “had the discretion to select the environmental impacts most relevant to its determination and to overlook those ‘of doubtful relevance.’” Matter of Frontier Stone, LLC v. Town of Shelby, No. 162 CA 18-01316 (N.Y. App. Div. July 31, 2019).
New Jersey Appellate Court Said Permit Review for Pipeline Did Not Require Consideration of Global Warming Impact
A New Jersey appellate court affirmed a joint permit issued by the New Jersey Department of Environmental Protection for a .68-mile-long portion of a 30-mile natural gas pipeline. Among other things, the court found that NJDEP had properly exercised its power under the Coastal Area Facility Review Act (CAFRA) and issued the permit after making the required findings about the project’s impact on the environment. The court said it was not necessary for NJDEP to address factors not set forth in CAFRA, including the project’s impact on global warming. In re New Jersey Department of Environmental Protection CAFRA Permit No. 0000-15-007.1 CAF 150001 & Freshwater Wetlands Protection Act Permit No. 0000-15-0007.1 FWW 15001 Issued to New Jersey Natural Gas, No. A-3293-16T1 (N.J. Super. Ct. App. Div. July 22, 2019).
California Appellate Court Upheld Streamlined CEQA Review for Sacramento Condominium Project
The California Court of Appeal upheld City of Sacramento approvals for a high-rise condominium building for which the City conducted a streamlined California Environmental Quality Act (CEQA) review based on determining that the project qualified as a “transit priority project” and was consistent with the regional transportation plan and sustainable communities strategy. California’s Sustainable Communities and Climate Protection Act authorizes use of the streamlined sustainable communities environmental assessment (SCEA) for projects that meet these criteria. The appellate court said there was no dispute that substantial evidence supported the City’s determination that the project was consistent with the strategy and that “[p]laintiff’s concern that some type of environmental review may not occur by using an SCEA in this instance is a complaint to take to the Legislature.” Sacramentans for Fair Planning v. City of Sacramento, No. C086182 (Cal. Ct. App. July 8, 2019).
Minnesota Appellate Court Sent EIS for Oil Pipeline Back to Public Utilities Commission
The Minnesota Court of Appeals reversed the Public Utilities Commission’s determination that the final environmental impact statement (FEIS) for the proposed Enbridge Line 3 oil pipeline project was adequate. Although the court upheld the Commission’s conclusion that the consideration of many issues, including upstream greenhouse gas emissions, was adequate, the court found that the FEIS was inadequate because it did not address the potential impact of an oil spill into the Lake Superior watershed. In re Enbridge Energy, LP, Nos. A18-1283 et al. (Minn. Ct. App. June 3, 2019).
Colorado Court Said Auto Dealer Association Lacked Standing to Challenge Low Emission Vehicle Standards
A Colorado District Court ruled that a non-profit association representing Colorado automobile dealers did not have standing to challenge Colorado’s low emission automobile regulations, which require that automobile manufacturers build and certify light- and medium-duty vehicles sold in Colorado that comply with California vehicle emissions standards beginning with 2022 model year vehicles. The court concluded that the alleged economic impact on dealers did not constitute an injury-in-fact sufficient to confer standing and, moreover, that the claimed harm was not to a legally protected interest. The court therefore granted the state defendants’ motion to dismiss. Colorado Automobile Dealers Association v. Colorado Department of Public Health & Environment, No. 2019CV30343 (Colo. Dist. Ct. July 8, 2019).
NEW CASES, MOTIONS, AND NOTICES
States Filed Challenge to Penalty Reduction for CAFE Standard Violations
Twelve states and the District of Columbia filed a petition for review in the D.C. Circuit Court of Appeals asking it to set aside a National Highway Traffic Safety Administration (NHTSA) final rule that reversed a December 2016 increase in the civil penalty for violating corporate average fuel economy (CAFE) standards. NHTSA concluded that the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015 did not apply to automobile manufacturers that fail to meet CAFE standards and are unable to offset the deficit with compliance credits. NHTSA also determined that even if the Act did apply, increasing the civil penalty would have a negative economic impact and that the current penalty rate should therefore continue to apply. New York v. National Highway Traffic Safety Administration, No. __ (D.C. Cir., filed Aug. 2, 2019).
First Lawsuit Filed Challenging Repeal and Replacement of Clean Power Plan
On July 8, 2019, the American Lung Association and American Public Health Association filed the first petition for review challenging the U.S. Environmental Protection Agency’s (EPA’s) final rule repealing the Obama administration’s Clean Power Plan and replacing it with the Affordable Clean Energy Rule, which establishes emission guidelines for existing coal-fired power plants based on heat rate improvement as the best system of emissions reduction. American Lung Association v. EPA, No. 19-1140 (D.C. Cir., July 8, 2019).
Clean Power Plan Challengers Sought Dismissal of Proceedings as Moot
After EPA published a final rule repealing the Clean Power Plan and finalizing new greenhouse gas emission guidelines for coal-fired power plants, petitioners in the proceedings challenging the Clean Power Plan asked the D.C. Circuit Court of Appeals to dismiss those proceedings as moot. EPA filed responses supporting dismissal. States and public health and environmental organizations that intervened to defend the Clean Power Plan opposed dismissal as premature because the new rule does not take effect until September 6. The respondent-intervenors asked the court to deny the motions or hold them in abeyance. The respondent-intervenors also noted that a challenge to the repeal and replacement rule had already been filed and that more petitioners for review were anticipated. The respondent-intervenors reserved their rights to object to the revival of the petitioners’ claims in this case should those proceedings result in the D.C. Circuit vacating the repeal of the Clean Power Plan. West Virginia v. EPA, Nos. 15-1363 et al. (D.C. Cir.).
City of Oakland and County of San Mateo Appeals to Be Heard by Same Panel
The Ninth Circuit Court of Appeals granted a motion by oil and gas companies to assign Oakland and San Francisco’s appeal of the district court decisions denying remand and dismissing their climate change nuisance actions to the same panel that will hear the companies’ appeals of the order remanding the County of San Mateo’s and three other climate lawsuits to California state court. The court subsequently notified the parties that it was considering the cases for an upcoming oral argument and asked for information on counsel’s availability in November, December, and January. County of San Mateo v. Chevron Corp., Nos. 18-15499 et al. (9th Cir.); City of Oakland v. BP p.l.c., No. 18-16663 (9th Cir.).
Petitioners Sought Rehearing of D.C. Circuit Decision Upholding FERC Review for Natural Gas Compression Facility
Petitioners filed a petition for rehearing and rehearing en banc of the D.C. Circuit Court of Appeals decision that rejected their challenge to the environmental review for a natural gas compression facility despite expressing concerns regarding the Federal Energy Regulatory Commission’s (FERC’s) efforts to fully consider the project’s indirect greenhouse gas impacts. The petitioners argued that the D.C. Circuit’s decision directly contradicted its 2017 holding in the Sabal Trail Pipeline case, which involved “nearly identical facts.” The petitioners also contended that the case involved “a question of exceptional importance with far reaching consequences.” They further argued that the D.C. Circuit’s conclusion that it lacked jurisdiction to consider the petitioners’ argument because they had not preserved the argument before FERC was “unfounded” because FERC’s denial that the project had any indirect impacts left the petitioners without an opportunity to develop the record on indirect impacts on rehearing. Birckhead v. Federal Energy Regulatory Commission, No. 18-1218 (D.C. Cir. July 19, 2019).
Lawsuit Filed to Compel Endangered Species Act Determination on Emperor Penguins
The Center for Biological Diversity (CBD) filed a lawsuit in federal court in the District of Columbia to compel the U.S. Fish and Wildlife Service (FWS) to issue a finding as to whether listing the emperor penguin under the Endangered Species Act (ESA) is warranted. CBD petitioned for the listing of the emperor penguin in 2011 and asserted the FWS violated the ESA and the Administrative Procedure Act by failing to make a 12-month finding in response to the petition. The complaint alleged that the emperor penguins “face a potentially insurmountable threat: anthropogenic climate change,” and cited a 2019 study that documented a “catastrophic breeding failure” during the past three years in the world’s second-largest colony following record low sea-ice extent and early sea-ice breakup as well as a 2017 study projecting a global population decline of 40–99% by the century’s end. Center for Biological Diversity v. Bernhardt, No. 1:19-cv-02282 (D.D.C., filed July 31, 2019).
Colorado Plaintiffs Challenged Constitutionality of Local Sign Law That Prevented Posting of Their Call for Action on Global Warming
Two individuals sued a Colorado town claiming that its sign code was an unconstitutional content-based restriction that violated their free speech rights and was unconstitutionally vague. The complaint alleged that one of the plaintiffs, a resident of the town, wished to display three pieces of political art designed by the other plaintiff in his front yard to protest President Trump and call for action on global warming. The plaintiffs alleged that they had not posted the artworks due to the town’s threat of enforcement. They asserted that the sign code violated the U.S. Constitution and Colorado Constitution both facially and as applied. Jensen v. Town of Fraser, No. 1:19-cv-02131 (D. Colo., filed July 25, 2019).
Environmental Groups Challenged Oil and Gas Leases in Arizona
Three environmental groups filed a lawsuit in the federal district court for the District of Arizona challenging BLM’s issuance of oil and gas leases covering land parcels near rural towns, the Navajo Nation, Petrified Forest National Park, the Coconino Aquifer, and the Little Colorado River. The plaintiffs asserted violations of NEPA, the National Historic Preservation Act, and the Federal Land Policy and Management Act. The plaintiffs alleged that the federal defendants improperly relied on 30-year-old environmental analysis that did not anticipate oil and gas development or consider significant new information about the local environment, wildlife, new oil and gas technologies, and climate change. Center for Biological Diversity v. Suazo, No. 3:19-cv-08204 (D. Ariz., filed July 15, 2019).
Lawsuit Filed to Compel Listing Decision on Plant Species in Desert Southwest
The Center for Biological Diversity and the Maricopa Audubon Society filed a lawsuit seeking to compel the U.S. Fish and Wildlife Service to determine whether to list the Arizona eryngo—a plant species with only two remaining populations in the U.S.—as endangered or threatened under the Endangered Species Act. The plaintiffs asserted that the FWS violated the ESA and the Administrative Procedure Act by failing to issue a 12-month final determination in response to the plaintiffs’ submission of a listing petition in April 2018. The plaintiffs alleged that the Arizona eryngo can live “only in silty groundwater-fed wetlands unique to the desert Southwest, known as ciénegas” and that “ciénegas have been nearly wiped out over the past century by groundwater pumping, overgrazing, altered patterns of water infiltration and runoff, and reductions in stream baseflows.” The complaint alleged that in addition to habitat modification, climate change also posed one of the greatest threats to the eryngo and its habitat. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 4:19-cv-00354 (D. Ariz., filed July 12, 2019).
Conservation Groups Sought Listing of Southern Mountain Caribou as Endangered or Threatened
Three conservation groups filed a lawsuit to compel the FWS to issue a final rule listing the Southern Mountain Caribou distinct population segment (DPS) as threatened or endangered under the Endangered Species Act and to make a final determination on the designation of critical habitat. The complaint alleged that the FWS had already found that the Southern Mountain Caribou faced significant threats, including destruction and curtailment of habitat due to logging, forest fires, insect outbreaks, human development, recreation, and climate change. The FWS proposed listing the DPS as threatened in 2014 and reopened the proposed rule for comments in 2015 and 2016. Center for Biological Diversity v. Bernhardt, No. 2:19-cv-00265 (D. Idaho, filed July 10, 2019).
Environmental Groups Challenged Environmental Review of Mining Plan for Expanded Colorado Coal Mine
Five environmental groups filed a lawsuit in the federal district court for the District of Colorado challenging federal approval of a mining plan for the 1,720-acre expansion of the West Elk Coal Mine in western Colorado. The plaintiffs asserted that the federal respondents violated the National Environmental Policy Act (1) by failing to consider an alternative that would reduce or offset methane pollution associated with coal mining, (2) by failing to support their conclusion that a previously prepared supplemental environmental impact statement covered activities permitted by the mining plan, (3) by failing to take a hard look at the cumulative impacts of climate change in conjunction with other similar federal coal approvals and proposals and in light of new climate science and information, and (4) by failing to take hard look at impacts on fish and water resources. The plaintiffs also filed a motion for a preliminary injunction WildEarth Guardians v. Bernhardt, No. 1:19-cv-01920 (D. Colo., filed July 2, 2019).
Lawsuit Filed to Compel Critical Habitat Designation for Threatened Ice Seals
The Center for Biological Diversity filed a lawsuit in Alaska federal court asserting the National Marine Fisheries Service (NMFS) violated the Endangered Species Act by failing to designate critical habitat for the Arctic subspecies of ringed seal and the Beringia DPS of the bearded seal. NMFS listed both species as threatened in 2012. The complaint alleged that NMFS has acknowledged that “best available science demonstrates that the earth will continue to warm throughout this century and that the warming will cause a dramatic loss of sea ice and snow cover in the Arctic.” The complaint further alleged that best available science “shows that such losses will likely cause a precipitous decline in the ringed and bearded seal populations and that both species will disappear from most of the places they currently live within the foreseeable future.” The plaintiff asked the court to order NMFS to designated critical habitat for both species “by a reasonable date certain.” Center for Biological Diversity v. Ross, No. 3:19-cv-00165 (D. Alaska, filed June 13, 2019).
California Challenged Termination of Federal Funding for High-Speed Rail Project
In May, California and the California High-Speed Rail Authority filed an action in federal court challenging the Federal Railroad Administration’s (FRA’s) termination of almost $1 billion in federal grant funding for the California high-speed rail project. The complaint alleged that the project is “a critical part of California’s long-term strategic planning, not only to address critical transportation needs, but also greenhouse gas emissions and climate change.” The plaintiffs asserted that the termination violated the Administrative Procedure Act because it was contrary to the FRA’s policies, procedures, and regulations, as well as its ordinary practices and was also contrary to statutory requirements, inconsistent with the parties’ course of dealings, not based on examination of relevant data, and precipitated by “President Trump’s overt hostility to California, its challenge to his border wall initiatives, and what he called the ‘green disaster’ high-speed rail project.” California v. U.S. Department of Transportation, No. 3:19-cv-02754 (N.D. Cal., filed May 21, 2019).
Lawsuit Filed Challenging “New, Sprawl City” on Edge of Los Angeles County
In May, the Center for Biological Diversity and California Native Plant Society filed a lawsuit challenging the environmental review for a development project on 12,323 acres on Los Angeles County’s border with Kern County. The project, which the petition called “a new, sprawl city,” would include 19,333 houses and 8.4 million square feet of commercial, industrial, and business park uses. The petitioners alleged that the project is “exactly the type of leapfrog sprawl development that climate legislation such as SB 375 sought to prevent” and that it would generate 75,000 new vehicle trips per day, with an average trip length of 45 miles. The petitioners contended that the greenhouse gas emissions generated by these trips “will be many orders of magnitude greater than those of a non-sprawl development and will hinder California's efforts to combat climate change.” They asserted, among other things, that the project’s greenhouse gas emissions were not adequately analyzed or mitigated in Los Angeles County’s CEQA review and that the project is inconsistent with the greenhouse gas goals of the Los Angeles County General Plan. Center for Biological Diversity v. County of Los Angeles, No. 19STCP02100 (Cal. Super. Ct., filed May 28, 2019).
HERE ARE RECENT ADDITIONS TO THE NON-U.S. CLIMATE LITIGATION CHART.
Kenya’s National Environmental Tribunal Set Aside the Issuance of a License for Construction of the Lamu Coal-Fired Power Plant
Kenya’s National Environmental Tribunal (the Tribunal) set aside the issuance of a license by the National Environmental Management Authority (NEMA) to Amu Power Company for the construction of the Lamu Coal-Fired Power Plant (Lamu Plant). The Lamu Plant would be the first coal-fired power plant in Kenya. The Tribunal found that NEMA violated the Environmental Impact Assessment & Audit Regulations (EIA Regulations) by granting an Environmental Impact Assessment License without proper and meaningful public participation in the process.
Additionally, the Tribunal found that the Amu Power Company’s Environmental & Social Impact Assessment was incomplete and scientifically insufficient in violation of the regulations. Applying the precautionary principle, the Tribunal found one of the insufficiencies of the assessment was the inadequate consideration of climate change and the Climate Change Act of 2016. The Tribunal ordered the Amu Power Company, if it should choose to pursue the project, to conduct a new EIA study in compliance with the EIA Regulations. The Tribunal further instructed the Amu Power Company that the new EIA study must include “all approved and legible detailed architectural and engineering plans for the plant and its ancillary facilities (such as the coal storage and handling facility and the ash pit with its location in relation to the sea shore), consideration of the Climate Change Act 2016, the Energy Act 2019 and the Natural Resources (Classes of Transactions subject to Ratification) Act 2016 in so far as the project will utilise sea water for the plant and/ or if applicable.” The Amu Power Company has 30 days to appeal the decision. Save Lamu et al. v. National Environmental Management Authority and Amu Power Co. Ltd., Tribunal Appeal No. Net 196 of 2016 (National Environmental Tribunal of Kenya)
European Union Court of Justice Ruled That Installation at Exxon Natural Gas Processing Facility Is Not Entitled to Allowance of Greenhouse Gas Emissions Free of Charge
On March 10, 2016, ExxonMobil filed a challenge against Germany in the Verwaltungsgericht Berlin (Administrative Court, Berlin, Germany), concerning an application to the German Emissions Trading Authority (DEHSt) for the allocation of greenhouse gas emission allowances (ghg allowances) free of charge to a Exxon-owned natural gas processing installation in Germany which, among other activities, engages in sulphur recovery that by the combustion of fuels generates electricity and heat and releases carbon dioxide into the atmosphere. The Administrative Court referred the case to the European Union’s Court of Justice for a preliminary ruling interpreting the laws which establish a greenhouse gas emission allowance trading system within the European Union to determine whether this facility was entitled to ghg allowances free of charge.
On June 20, 2019, the Court of Justice ruled that part of Exxon’s natural gas processing plant in Germany should be classified as an electricity generator. The Court of Justice interpreted Article 3(u) and Article 10a of, and Annex I to, Directive 2003/87/EC of the European Parliament and Council (which established a scheme for greenhouse gas emission allowance trading within the EU) and as amended by Directive 2009/29/EC (“Directive 2003/87”). It additionally interpreted Article 3(c) and (h) of Commission Decision 2011/278/EU concerning rules for the temporary free allocation of emission allowances pursuant to Article 10a of Directive 2003/87. The court concluded that Article 3(u) of Directive 2003/87/EC must be interpreted to mean that an installation, such as that at issue in the proceedings (which produces electricity through the “combustion of fuels in installations with a total rated thermal input exceeding 20 [megawatts (MW)]”), must be understood as an ‘electricity generator’ when even a small portion of that electricity is continuously fed into the public electricity network (unless the product of the installation meets an exempted category in the annex). The installation in question could not be exempted even if its purpose was to produce electricity for the natural gas processing facility.
The Court of Justice further determined that Article 3(c) of Commission Decision 2011/278/EU must be interpreted to mean that an installation such as that at issue in the main proceedings is not entitled to be allocated free emission allowances for the heat produced “where that heat is used for purposes other than the production of electricity, since such an installation does not fulfill the conditions laid down in Article 10a(4) and (8) of the directive.” The activities of natural gas desulphurisation and sulphur recovery did not meet the criteria of those articles. An analyst reviewing the decision noted that if it is followed by EU governments, it could result in thousands of facilities no longer qualifying for free allocation of ghg emission permits and drive up the cost of carbon in the market. ExxonMobil v. Germany, “ExxonMobil Production Deutschland GmbH v Bundesrepublik Deutschland,” Case No. C-682/17 (Court of Justice for the European Union)
International Court of Justice Awarded Compensation to Costa Rica for Lost Environmental Services Caused by Nicaragua’s Unlawful Activities, Including for Lost “Gas Regulation” and “Carbon Sequestration”
On November 18, 2010, Costa Rica filed an action against Nicaragua in the International Court of Justice (ICJ), alleging an “incursion into, occupation of and use by Nicaragua’s army of Costa Rican territory as well as [alleged] breaches of Nicaragua’s obligations towards Costa Rica” under a number of international treaties and conventions. As part of this proceeding, Costa Rica sought compensation for the loss of environmental goods and services the country sustained due to Nicaragua’s excavation of channels on its territory. Costa Rica argued that Nicaragua had, on two separate incidents, occupied the territory of Costa Rica in connection with the construction of a canal across Costa Rican territory from the San Juan River to Laguna los Portillos (or “Harbor Head Lagoon”) and associated acts of dredging on the San Juan River. Nicaragua removed nearly 300 trees and cleared 6.19 hectares of vegetation in excavating the Costa Rican channels. Among the services for which Costa Rica sought compensation was the impaired ability of the excavated area to provide “gas regulation and air quality services, such as carbon sequestration.” On February 2, 2018, the ICJ ruled how much Nicaragua must compensate Costa Rica for the loss of environmental services. This followed a ruling on the merits from December 16, 2015 that established that Nicaragua’s activities were unlawful and violated Costa Rica's territorial sovereignty and navigational rights, as well as the Court’s Order of March 8, 2011, and found that Costa Rica should be compensated for these unlawful activities.
In ruling for Costa Rica, the ICJ reasoned that Nicaragua’s activities significantly undermined the ability of the two areas to provide environmental goods and services. Because this loss of environmental services was a direct result of Nicaragua’s actions, the ICJ ruled that Nicaragua must compensate Costa Rica US$120,000 for the impairment or loss of the environmental goods and services of the impacted area in the period prior to recovery. Furthermore, the ICJ did “not consider that the impairment or loss” of carbon sequestration services could be valued as a one- time loss. This was the first case wherein in ICJ adjudicated a claim for compensation for environmental damage. Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) “CERTAINES ACTIVITÉS MENÉES PAR LE NICARAGUA DANS LA RÉGION FRONTALIÈRE (COSTA RICA c. NICARAGUA)” (I.C.J.)
A Polish Regional Court Found a Company Resolution Authorizing Construction of a Power Plant to Be Legally Invalid
ClientEarth, a non-profit environmental law organization and shareholder in the Polish utility Enea SA, sued that company, seeking the annulment of a resolution consenting to construction of the €1.2bn 1GW Ostrołęka C coal-fired power plant. The claim was brought under the Polish Commercial Companies Code. The plaintiffs claimed that the consent resolution for construction of the power plant harms the economic interests of the company as a result of climate-related financial risks, including: rising carbon prices, increased competition from cheaper renewables, and the impact of EU energy reforms on state subsidies for coal power under the capacity market. The claim was filed on October 24, 2018 in the Regional Court in Poznań (Sąd Okręgowy w Poznaniu). On August 1, 2019, the court found the company resolution authorizing construction of the power plant to be legally invalid. Further discussion of the reasoning will be added to this profile upon review of a translation of the full decision. ClientEarth v Enea, IX GC 1118/18 (Regional Court in Poznań)
Court of Appeal Granted NGO Permission to Appeal Ruling Allowing Expansion of Heathrow International Airport
Friends of the Earth and Plan B Earth, a British nonprofit with the mission to realize the goals of the Paris Agreement on climate change, filed suit against the Secretary of State for Transport Chris Grayling (the Secretary) alleging inadequate consideration of climate change impacts in regards to the expansion of Heathrow International Airport. (Additional claimants participated in the suit, but these two groups took lead on the climate-related claims.) Claimants argued that the Secretary’s national policy statement supporting the expansion of Heathrow Airport violated the Planning Act 2008 and the Human Rights Act 1998. The case went before the High Court of Justice Queen’s Bench Division Administrative Court, which refused all six climate change-related claims filed by the two environmental organizations.
The Court of Appeal has granted plaintiffs the permission to appeal the lower court decision. The judge wrote that the “[i]mportance of the issues raised in these and the related proceedings is obvious.” The appeal hearing is scheduled for October 21, 2019. Plan B Earth and Others v. Secretary of State for Transport, Ref No. C1/2019/1053 (Court of Appeal for England and Wales)
Canadian Court Dismissed Motion for Authorization to Institute a Class Action in Youth Climate Case
On July 11, 2019, the Superior Court of Québec dismissed the motion by ENvironnement JEUnesse, an environmental nonprofit, for authorization to institute a climate change-related class action against the Canadian government on behalf of Québec citizens aged 35 and under. ENvironnement JEUnesse reported that it asked the Court, inter alia, to declare that the Government of Canada had failed in its obligations to protect the fundamental rights of young people under the Canadian Charter of Rights and Freedoms and the Québec Charter of Rights and Freedoms. The organization alleged that the government violated plaintiffs’ rights by setting a greenhouse gas reduction target insufficient to avoid dangerous climate change impacts and by lacking an adequate plan to reach its greenhouse gas emission target.
According to information available from the plaintiff organization and media outlets, the judge found insufficient justification for the age limits of the class. A lawyer for the firm representing the plaintiff organization reports that the judge made determinations in favor of the plaintiffs on other critical issues. These include recognition of the impact of climate change on human rights as a justiciable issue and the applicability of the Canadian Charters and Quebec rights and freedoms to government actions in this area. Confirmation and further analysis will be provided upon review of a translation of the decision. Environment JEUnesse reports that they plan to appeal the decision. ENvironnement JEUnesse v. Canada, “ENvironnement JEUnesse v. Procureur General du Canada,” Reporter Info: 500-06 (Quebec Superior Court)
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FEATURED VIDEO
Michael Gerrard weighs in on the Climate Leadership and Community Protection Act on CBS News, June 21, 2019
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