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Update # 138
September 2020
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Before a Biden administration could move forward on the climate crisis, it would have to undo much of the climate deregulation carried out under the Trump administration. Our report outlines how.
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Rewiring Law to Fight Climate Change
The New York launch of a collaboration of lawyers from around the world
to develop new contracts and model laws to help fight climate change.
Wednesday, September 23, 8–9:30 AM
Register here
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NEW YORK CLIMATE LAW TRACKERS
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The New York State Climate Law Tracker monitors New York's progress in implementing its path-breaking Climate Leadership and Community Protection Act, Environmental Justice Law, Community Risk and Resiliency Act, and Accelerated Renewable Energy Growth and Community Benefit Act.
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The New York City Climate Law Tracker monitors New York City's progress in implementing the Climate Mobilization Act, a suite of local laws that were enacted in 2019. The most prominent of these is Local Law 97, which places limits on the amount of greenhouse gases that large buildings may emit.
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How Agency Science Is Under Threat, by Romany Webb, Environmental Forum, September/October 2020
When Politics Trump Science: The Erosion of Science-Based Regulation, by Romany Webb, Lauren Kurtz, & Susan Rosenthal, Environmental Law Reporter, September 2020
Climate Recommendations for a New Democratic President and a New Congress: A Compilation, by Clara Greider & Jordan Gerow, Introduction by Michael B. Gerrard, August 9, 2020
Compilation of Recommendations to Reduce Greenhouse Gas Emissions in New York State, by Kate Marsh, Neely McKee, & Jordan Gerow, Introduction by Michael B. Gerrard, July 30, 2020
Summary: Combating Climate Change with Section 115 of the Clean Air Act, by Institute for Policy Integrity, Sabin Center for Climate Change Law, and Emmett Institute on Climate Change & the Environment, June 2020
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New Model Laws
New this month:
Since the last newsletter update, the LPDD team has published five new model legal documents. One such law provides a model state electricity decarbonization statute, based on Washington State's similar legislation from 2019. Two additional model laws provide opportunities for Congress to support the expansion of hydrogen refueling stations. A fourth model law addresses state and local green bank legislation. A model conservation easement grant adapts an existing model grant from the Pennsylvania Land Trust Authority to enhance terms that promote biological carbon sequestration. The new resources are listed below:
To receive a monthly update that summarizes the new model laws prepared by this project and lists the other resources posted on the model laws website, click the button below.
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HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 137.
FEATURED CASE
Second Circuit Reinstated Penalty Increase for Fuel Economy Violations
The Second Circuit Court of Appeals vacated the National Highway Traffic Safety Administration’s (NHTSA’s) reversal of a 2016 increase to the penalty for violations of fuel economy standards. In 2016, NHTSA increased the penalty pursuant to Federal Civil Penalties Inflation Adjustment Act Improvements Act (the Improvements Act) from $5.50 to $14 for every tenth of a mile per gallon below the applicable standard, multiplied by the number of cars in a manufacturer’s fleet. In 2019, NHTSA reversed the increase based on its conclusion that the Improvements Act did not apply to the fuel economy penalty and that, even if the Act did apply, the penalty’s “negative economic impact” was sufficient to support reversal. The Second Circuit rejected both rationales. First, the Second Circuit held that the penalty was a “civil monetary penalty” under the Improvements Act. NHTSA therefore was required to adjust the penalty rate in accordance with the Improvements Act’s requirements. Second, the court held that reconsideration and reversal of the increase based on economic consequences was untimely and therefore beyond NHTSA’s authority. New York v. National Highway Traffic Safety Administration, Nos. 19-2395 & 19-2508 (2d Cir. Aug. 31, 2020).
DECISIONS AND SETTLEMENTS
Ninth Circuit Order Stayed Mandate After Affirming Remand of California Local Governments’ Climate Cases to State Court
In cases brought by San Mateo County and other California localities seeking climate change-related damages from fossil fuel companies, the Ninth Circuit granted the companies’ motion to stay the mandate after the Ninth Circuit affirmed a district court order remanding the cases to state court. The companies argued that a stay was warranted because their petition for writ of certiorari would raise the substantial question of whether a court of appeals may review any issue in a district court order granting remand where removal was based in part on the federal-officer removal statute or whether, as the Ninth Circuit ruled, the appellate court’s jurisdiction is limited to reviewing the district court’s decision on the federal-officer removal issue. The companies also argued there was good cause for a stay because remand would result in six cases being returned to four different state courts for proceedings, potentially forcing the defendants “to incur substantial burden and expense.” The Ninth Circuit stayed the mandate pending the Supreme Court’s action on the certiorari petition and, if the Supreme Court grants the petition, pending disposition of the case. The companies also filed a motion in the district court to confirm that the court’s orders staying issuance of the remand orders pending appeal would extend to the conclusion of any Supreme Court proceedings. On August 20, the court issued an order clarifying the stay was intended to remain in place until the mandate issued and that the companies could have requested an additional stay. County of San Mateo v. Chevron Corp., Nos. 18-15499 et al. (9th Cir. Aug. 25, 2020), Nos. 3:17-cv-04929 et al. (N.D. Cal. Aug. 20, 2020).
Ninth Circuit Denied Rehearing of Decision that Federal-Question Jurisdiction Did Not Provide Basis for Removing Oakland and San Francisco Climate Cases to Federal Court
In the cases brought by Oakland and San Francisco, the Ninth Circuit denied the energy company defendants’ petition for panel rehearing and/or rehearing en banc of its opinion reversing the district court’s determination that federal-question jurisdiction provided a basis for removal. The Ninth Circuit also amended a footnote in the opinion in response to a letter from the district court judge requesting that the Ninth Circuit withdraw the footnote. The district court judge asserted that Ninth Circuit’s opinion misconstrued his decision as relying on admiralty jurisdiction (which the energy companies had not identified as a basis for removal) rather than on federal-question jurisdiction arising out of the navigable waters of the United States. The amended footnote indicated that an argument that there was federal-question jurisdiction because “the instrumentality of the alleged harm is the navigable waters of the United States” failed for the reasons set forth in the section of the Ninth Circuit’s opinion that held there was no exception to the well-pleaded complaint rule. The mandate issued on August 20, 2020. City of Oakland v. BP p.l.c., No. 18-16663 (9th Cir. rehearing petition denied Aug. 12, 2020 and mandate issued Aug. 20, 2020).
State Courts Put Rhode Island and Baltimore Climate Damages Cases on Hold Pending U.S. Supreme Court Decision on Personal Jurisdiction Issues in Unrelated Auto Manufacturer Cases
In Rhode Island’s case against fossil fuel companies, the First Circuit will hear oral argument on September 11, 2020 in the companies’ appeal of the remand order returning the case to state court. On August 13, 2020, the state trial court in Rhode Island delayed further consideration of the defendants’ motion to dismiss for lack of personal jurisdiction until the U.S. Supreme Court and the Rhode Island Supreme Court decide pending cases that concern similar personal jurisdiction issues. In this case, the defendants argue that Rhode Island has not demonstrated that its alleged injuries arise out of the defendants’ limited contacts with Rhode Island; they contend that expansion of specific jurisdiction for climate change claims would violate due process and interfere with the defendants’ home jurisdictions’ power. The cases that the U.S. Supreme Court is scheduled to consider in its next term concern specific jurisdiction in wrongful death and products liability cases against auto manufacturers in Minnesota and Montana; the high courts of those states found personal jurisdiction in both cases. The case in the Rhode Island Supreme Court is an appeal of a trial court finding of no specific personal jurisdiction over defendants who designed and manufactured the truck and tire involved in a wrongful death action. The Rhode Island trial court also delayed consideration of Rhode Island’s motion to compel jurisdictional discovery and stated that it would not consider the defendants’ motion to dismiss for failure to state a claim until it determined that the parties were properly before the court. State v. Chevron Corp., No. PC-2018-4716 (R.I. Super. Ct. Aug. 13, 2020).
The Maryland trial court hearing Baltimore’s climate case against fossil fuel companies deferred further proceedings pending both the U.S. Supreme Court’s decision on the companies’ petition for writ of certiorari seeking review of the Fourth Circuit’s affirmance of the order remanding the case to state court and also the Supreme Court’s decision in its review of decisions by the Montana and Minnesota high courts in cases concerning specific personal jurisdiction over auto manufacturers in wrongful death and products liability cases. The certiorari petition was distributed for consideration by the Court at a September 29, 2020 conference. Mayor & City Council of Baltimore v. BP p.l.c., No. 24-C-18-004219 (Md. Cir. Ct. Aug. 6, 2020).
Federal Circuit Affirmed Dismissal of Second Case Charging CARB with Patent Infringement
The Federal Circuit Court of Appeals affirmed the dismissal on res judicata grounds of a second lawsuit brought by an individual who claimed that the California Air Resources Board’s (CARB’s) cap-and-trade program infringed on a patent he held. In 2016, a district court dismissed the plaintiff’s first case with prejudice because the plaintiff failed to oppose motions to dismiss. The Federal Circuit affirmed dismissal in 2017. In this second case, the Federal Circuit concluded that the district court properly applied preclusion since the plaintiff asserted the same acts of infringement. Sowinski v. California Air Resources Board, No. 19-1558 (Fed. Cir. Aug. 21, 2020).
D.C. Circuit Rejected Challenge to Cellulosic Biofuel Guidance
The D.C. Circuit Court of Appeals dismissed in part and denied in part a petition for review of a U.S. Environmental Protection Agency (EPA) guidance document that explained EPA’s interpretation of regulatory requirements for determining the amount of cellulosic biofuel in ethanol produced from corn kernels. The D.C. Circuit noted that cellulosic biofuel “produces the least lifecycle greenhouse gas emissions of the four renewable fuels promoted by the Clean Air Act’s Renewable Fuel Standard program.” The D.C. Circuit dismissed the challenge to one portion of the guidance as unripe and concluded that another portion of the guidance announced “a final, interpretive rule that lawfully construes the underlying regulation.” Judge Henderson dissented in part, stating that in her view the guidance was a legislative rule that effectively amended the applicable regulation, and that it therefore should have been subject to notice and comment. POET Biorefining, LLC v. EPA, No. 19-1139 (D.C. Cir. Aug. 14, 2020).
Florida Federal Court Said Federal Defendants Must Reinitiate Endangered Species Act Consultation to Consider Impact of Lake Okeechobee Releases on Manatees
The federal district court for the Southern District of Florida held that the U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service acted arbitrarily and capriciously when they failed to reinitiate consultation under the Endangered Species Act regarding the effects of red and blue-green algae on endangered West Indian Manatees in connection with releases from Lake Okeechobee under the Lake Okeechobee Regulation Schedule (LORS). The decision does not mention climate change, but the plaintiffs’ allegations included that past analyses of LORS under the ESA “entirely failed to consider how climate change might affect LORS and harmful algal blooms.” The plaintiffs also asserted a claim under the National Environmental Policy Act that was not a subject of this decision. Center for Biological Diversity v. U.S. Army Corps of Engineers, No. 2:19-cv-14199 (S.D. Fla. Aug. 28, 2020).
California Federal Court Allowed Constitutional and Preemption Challenges to Proceed Against Richmond Ordinance Banning Coal and Petcoke Operations
The federal district court for the Northern District of California largely denied the City of Richmond and the Richmond City Council’s motions to dismiss challenges to an ordinance prohibiting the storage and handling of coal and petcoke. The plaintiffs are the operator of a port and marine terminal that is the only coal and petcoke bulk handling facility and marine shipment transfer point in the Bay Area; the operator of a nearby refinery that produces petcoke and uses the terminal to ship the product abroad; and a Utah company that mines and sources thermal coal. The plaintiffs all alleged that the City viewed reducing climate change as the ordinance’s objective. The court found that the plaintiffs stated plausible claims under the dormant Commerce Clause (based on a Pike balancing test but not on a theory of extraterritoriality) and foreign Commerce Clause, as well as under the Due Process, Equal Protection, and Takings Clauses. In addition, the court allowed the plaintiffs to proceed with claims that the Interstate Commerce Commission Termination Act and the Shipping Act of 1984 preempted the ordinance, but not with a claim of preemption by the Hazardous Materials Transportation Act. The court also granted leave for permissive intervention to Sierra Club and San Francisco Baykeeper. Levin Richmond Terminal Corp. v. City of Richmond, No. 4:20-cv-01609 (N.D. Cal. Aug. 27, 2020).
Parties Agreed to Timeline for Action on Critical Habitat for Green Sea Turtles
Federal defendants and the Center for Biological Diversity and two other plaintiff organizations agreed to a settlement pursuant to which the defendants will issue a proposed determination for the designation of critical habitat for six distinct population segments of the green sea turtle, a species whose habitat is threatened by sea level rise among other factors. The defendants must submit the proposed determination for publication in the Federal Register by June 30, 2023. The settlement resolved a lawsuit filed in January 2020. Center for Biological Diversity v. Bernhardt, No. 1:20-cv-00036 (D.D.C. Aug. 20, 2020).
New Mexico Federal Court Found Cumulative Climate Change Analysis for Oil and Gas Leases Sufficient
The federal district court for the District of New Mexico found that the U.S. Bureau of Land Management’s (BLM’s) National Environmental Policy Act (NEPA) review of three leases for oil and gas development across 68,232 acres in southeastern New Mexico was adequate. First, the court concluded that BLM satisfied NEPA’s requirements for analysis of the leases’ cumulative climate change effects by placing the leases in a regional and national context, considering other development in the region, and assessing (in incorporated reports) “the global impact of its leases.” The court found that the conclusion that the leases’ impact was not significant was not arbitrary and capricious. Second, the court said BLM was not required to apply the Social Cost of Carbon protocol. In addition, the court found that BLM’s consideration of air quality impacts and water quantity and quality impacts was sufficient. The court also found that BLM reasonably determined that environmental impact statements were not necessary. Regarding the NEPA regulations’ inclusion of whether an action is “highly controversial” as a factor for significance, the court recognized “that climate change can elicit strong reactions.” The court noted, however, “that nothing in NEPA or its accompanying regulations mandates certain studies to account for this global problem. What should not be controversial is the Court’s role in holding agencies accountable to congressional mandates. If Congress requires BLM to perform specific climate change-based studies, then the Court will uphold them. That time has not yet arrived. At present, BLM states that extrapolating site-specific leasing emissions onto global climate models is too uncertain. Instead, it places emissions in the context of the locality and region. Such analysis meets NEPA’s requirements and is not controversial despite the charged nature of the topic.” The court denied the plaintiff’s request to declare BLM’s leasing process guidance unlawful but enjoined subsequent leases that did not allow for public participation, per the guidance. WildEarth Guardians v. Bernhardt, No. 1:19-cv-00505 (D.N.M. Aug. 18, 2020).
Montana Supreme Court Said Public Service Commission Improperly Excluded Avoided Carbon Costs from Contract Rates for Small Solar Facilities
The Montana Supreme Court agreed with a lower court that the Montana Public Service Commission’s (PSC’s) reduction of standard-offer contract rates and maximum contract lengths for small solar qualifying facilities (QFs) violated the Public Utility Regulatory Policies Act (PURPA) and Montana law. The court concluded that the record did not support the PSC’s decision not to include a “carbon adder” when setting the utility’s avoided-cost rate; the PSC had decide not to include it because the change in presidential administrations decreased the likelihood of carbon emissions regulation. The court held that exclusion of carbon dioxide emissions cost violated PURPA, stating: “While carbon price forecasting may be innately difficult, to assign carbon pricing a value of ‘zero’ because of its speculative nature simply does not compensate QFs for the full avoided-cost rate.” The court further found the PSC justification for the exclusion to be arbitrary because it was inconsistent with the PSC’s inclusion of a carbon adder in another recent case involving purchase of wind energy from small QFs. In addition, the Supreme Court also affirmed the lower court’s findings of other violations. Vote Solar v. Montana Department of Public Service Regulation, No. DA 19-0223 (Mont. Aug. 24, 2020).
Rhode Island Court Dismissed Challenge to Agency’s Denial of Climate Change Rulemaking Petition
A Rhode Island Superior Court granted the Rhode Island Department of Environmental Management’s (RIDEM’s) motion to dismiss a lawsuit seeking review of RIDEM’s denial of a rulemaking petition seeking adoption of regulations “to address urgent problems posed by climate change to the health of Petitioners.” The court concluded it lacked subject matter jurisdiction over the plaintiff’s administrative appeal under the Rhode Island Administrative Procedures Act (APA); the court found that it was “abundantly clear” that the plaintiffs had not been aggrieved within the meaning of the applicable APA provision. The court also held that the plaintiffs were not entitled to declaratory relief under the APA and that they did not have standing under the Uniform Declaratory Judgment Act. Regarding standing, the court concluded the plaintiffs—despite their presentation of data and studies indicating the detrimental effect of climate change—“failed to demonstrate a specific, tangible, and concrete injury suffered as a result of [the] rejection of the proposed rules” and that they had not alleged a “personal stake in the controversy,” only “broader claims of the public at large.” Duryea v. Rhode Island Department of Environmental Management, No. PC-2018-7920 (R.I. Super. Ct. Aug. 24, 2020).
New York Court Rejected Challenge to Plan to Elevate East River Park in Manhattan
A New York trial court rejected a public trust doctrine challenge to New York City’s resiliency plan for the Lower East Side that involved elevating an existing park on the East River by eight feet to serve as a barrier to coastal storms and flooding. In a decision announced from the bench, the court found that although the plan involved a “substantial intrusion,” the intrusion was for a park purpose and the public trust doctrine was not implicated. The court indicated that the record supported the conclusion “that without this plan we will likely not even have a park at all” due to climate change. The court also found that any “danger” of the City not restoring the entire park and using a portion for non-park purposes was “speculation.” East River Park Action v. City of New York, No. 151491/2020 (N.Y. Sup. Ct. Aug. 21, 2020).
NEW CASES, MOTIONS, AND NOTICES
District Courts Considered How to Proceed After Ninth Circuit Decisions in County of San Mateo and City of Oakland
After the Ninth Circuit’s decisions on jurisdictional issues in the County of San Mateo and City of Oakland cases, there was activity in other similar climate change cases that are pending in district courts in the Ninth Circuit but that have been dormant while the California cases proceeded.
- In King County’s case in the Western District of Washington, the court continued a stay until September 9, 2020 and directed the parties to submit a joint proposal for next steps by that date. King County v. BP p.l.c., No. 2:18-cv-00758 (W.D. Wash. Aug. 27, 2020).
- In the Pacific Coast Federation of Fishermen’s Associations’ case in Northern District of California, the court initially scheduled a case management conference for August 26, 2020 but rescheduled the conference for December 16, 2020 after the parties submitted a joint request to vacate the case management conference given the defendants’ intent to file petitions for writ of certiorari seeking review of the Ninth Circuit’s decisions. Pacific Coast Federation of Fishermen’s Associations v. Chevron Corp., No. 3:18-cv-07477 (N.D. Cal. Aug. 22, 2020).
- In Honolulu’s case in the District of Hawaii, the court concluded that the stay of the proceedings was no longer appropriate. The court stated that there was “not a strong likelihood of acceptance of certiorari or reversal” in the County of San Mateo and City of Oakland cases; that the defendants would not be irreparably injured absent a stay; that a further stay would “substantially injure” the plaintiff by prolonging the proceedings; and that there was “always a public interest” in “prompt” resolution of a dispute. The court gave Honolulu a deadline of September 11, 2020 for filing a motion to remand. On September 4, the defendants filed a request that the court reconsider in light of Ninth Circuit’s stay of the mandate in County of San Mateo. The court denied the request. City & County of Honolulu v. Sunoco LP, No. 1:20-cv-00163 (D. Haw. Aug. 21, 2020).
Hoboken Filed Suit Seeking Damages from Energy Companies for Climate Change Impacts
The City of Hoboken, New Jersey filed a lawsuit in state court asserting climate change-based claims for damages and injunctive relief against energy companies and the American Petroleum Institute. The City alleged that the defendants caused climate change-related harms through production of fossil fuels and concealment of fossil fuels’ harms. The complaint alleged that Hoboken is “uniquely vulnerable to sea level rise” and that the city was experiencing more frequent and severe storms as a result of climate change. In response to these impacts, Hoboken alleged that it had developed an adaptation and mitigation plan to address rainfall and seawater flooding that would cost more than $500 million. The complaint asserted claims of public and private nuisance, trespass, negligence, and violation of the New Jersey Consumer Fraud Act. The relief sought included compensatory, consequential, and punitive damages; treble damages under the Consumer Fraud Act; an order compelling the defendants to abate the alleged nuisance and to pay costs of abatement; an order enjoining future acts of trespass; and attorneys’ fees and costs. City of Hoboken v. Exxon Mobil Corp., No. HUD-L-003179-20 (N.J. Super. Ct., filed Sept. 2, 2020).
Petitioners Sought to Supplement Record in Challenges to Vehicle Emission and Fuel Economy Standards
Two motions to add documents to the record were filed in proceedings challenging EPA and NHTSA’s revision of greenhouse gas emissions and fuel economy standards for passenger cars and light trucks. The State and Municipal Petitioners and Public Interest Petitioners requested that the D.C. Circuit order the respondents to add six interagency-review documents in the administrative record: two drafts of the final rulemaking notice submitted to the White House Office of Management and Budget; EPA comments to NHTSA on those drafts; and two EPA documents that provide context for its comments. The petitioners asserted that the deliberative privilege that would ordinarily shield EPA comments and the related documents from judicial review either did not apply or was “overcome by showings of need by [the petitioners] and bad faith or improper behavior by the Agencies.” The petitioners argued that the documents were probative of their claim that EPA failed to exercise independent judgment or apply technical expertise, and also that the available evidence showed that EPA was “cut out of the process of developing its own rule” and that “the Executive Branch took unprecedented and improper steps to hide the facts.” In the second motion, petitioner Competitive Enterprise Institute (CEI) sought the addition of three scientific documents regarding particulate matter. CEI argued that the final rule explicitly relied on one of the documents, and that EPA Administrator Andrew Wheeler considered the other two documents. Competitive Enterprise Institute v. National Highway Traffic Safety Administration, No. 20-1145 (D.C. Cir. Aug. 25, 2020).
Environmental Groups and States Challenged Authorization of LNG Transport by Rail
Seven environmental groups filed a petition for review in the D.C. Circuit Court of Appeals challenging the Pipeline and Hazardous Materials Safety Administration’s promulgation of regulations authorizing transport of liquefied natural gas (LNG) by rail. Fourteen states and the District of Columbia also filed a petition for review. Both the environmental groups and the states raised concerns regarding both public safety and environmental impacts, including impacts on climate change and greenhouse gas emissions, in comments they submitted on the proposed rule. Sierra Club v. U.S. Department of Transportation, No. 20-1317 (D.C. Cir., filed Aug. 18, 2020); Maryland v. U.S. Department of Transportation, No. 20-1318 (D.C. Cir., filed Aug. 18, 2020).
California Led State, Territorial, and Local Governments in Fourth Lawsuit Challenging Amended NEPA Regulations
On August 28, 2020, California and 20 other states, along with Guam, the District of Columbia, Harris County in Texas, and New York City, filed a lawsuit in the Northern District of California challenging the Council on Environmental Quality’s (CEQ’s) amendments to the NEPA regulations. Like the three other previously filed challenges, the states’ complaint asserted that amendments arbitrarily and unlawfully made changes that limit review of climate change impacts, including by narrowing the scope of effects required to be considered, imposing strict causation requirements, and directing agencies not to consider cumulative and indirect effects. The plaintiffs asserted that the final rule was contrary to NEPA’s language and exceeded CEQ’s statutory authority; that the final rule was arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law; and that CEQ violated NEPA by not preparing an environmental assessment or environmental impact statement to consider the final rule’s impacts. In addition, the plaintiffs asserted that CEQ violated the Administrative Procedure Act by failing to provide an opportunity to comment on the Regulatory Impact Analysis and by failing to respond adequately to comments on the proposed rule. California v. Council on Environmental Quality, No. 3:20-cv-06057 (N.D. Cal., filed Aug. 28, 2020).
Owners of Private Golf Club Challenged Rezoning Described as Climate Change Adaptation Measure
The owners of a 118-acre property on Long Island in New York filed a lawsuit challenging a zoning ordinance that applied a “Coastal Conservation District” to the property. Until 2020, the property was used as a private golf club. The owners asserted that the establishment of the Coastal Conservation District—which reduced the number of permitted residential units from 284 to 59—violated their equal protection and due process rights, constituted an unconstitutional taking, constituted an unlawful and ultra vires exercise of zoning power, and unlawfully preempted the review process under the New York State Environmental Quality Review Act. The plaintiffs alleged that “no comprehensive environmental, or other, study” supported adoption of the Coastal Conservation District, for which “the stated purpose recites as its principal rationale the need to manage ‘current and future physical climate risk changes due to sea level rise, storm surge and flooding.’” The plaintiffs alleged that the Expanded Environmental Assessment accompanying the District was “prepared entirely as a fig leaf to cover the naked land grab.” WG Woodmere LLC v. Town of Hempstead, No. 1:20-cv-3903 (E.D.N.Y., filed Aug. 24, 2020).
Lawsuits Challenged EIS for Reopening of Millions of Acres in National Petroleum Reserve–Alaska to Oil and Gas Development
Two lawsuits were filed challenging the environmental impact statement (EIS) for a revision to the Integrated Activity Plan for the National Petroleum Reserve–Alaska that would open approximately 6.7 million acres of the Reserve to oil and gas development. Both sets of plaintiffs asserted violations of NEPA, and plaintiffs led by Northern Alaska Environmental Center also asserted violations of the Naval Petroleum Reserves Production Act and the Administrative Procedure Act. Both complaints identified climate change as one subject that the EIS failed to address adequately. National Audubon Society v. Bernhardt, No. 3:20-cv-00206 (D. Alaska, filed Aug. 24, 2020); Northern Alaska Environmental Center v. Bernhardt, No. 3:20-cv-00207 (D. Alaska, filed Aug. 24, 2020).
Plaintiffs in Two Lawsuits Challenged Oil and Gas Leasing Plan for Arctic National Wildlife Refuge
Two lawsuits were filed in the federal district court for the District of Alaska challenging the federal review and approval of an oil and gas leasing program for the Coastal Plain of the Arctic National Wildlife Refuge. The Tax Cuts and Jobs Act enacted in 2017 authorized an oil and gas leasing program; BLM released a record of decision authorizing a program on August 17, 2020. Together, the plaintiffs asserted violations of NEPA, the Endangered Species Act, the Alaska National Interest Lands Conservation Act, the Tax Cuts and Jobs Act, the National Wildlife Refuge System Administration Act, the Wilderness Act, and the Administrative Procedure Act. Their claims included that BLM and the Fish and Wildlife Service failed to consider the leasing program’s impacts on climate change, as well as resulting impacts on polar bears. They also contended that the EIS failed to provide “a reasonably thorough discussion of the effectiveness of mitigation measures,” including lease stipulations or operating procedures, that could limit impacts, including impacts on greenhouse gas emissions and climate change. Gwich’in Steering Committee v. Bernhardt, No. 3:20-cv-00204 (D. Alaska, filed Aug. 24, 2020); National Audubon Society v. Bernhardt, No. 3:20-cv-00205 (D. Alaska, filed Aug. 24, 2020).
Environmental Groups Challenged BLM Approval of Resource Management Plan for Colorado Public Lands
Six environmental and conservation groups filed a lawsuit in the federal district court for the District of Colorado challenging BLM’s approval of a revised Resource Management Plan (RMP) for the Uncompahgre Field Office that expanded lands available to oil and gas leasing. The plaintiffs alleged that BLM failed to take “a hard look at the plan’s greenhouse gas emissions and resulting impacts to the climate and natural resources.” They asserted climate change-based claims under NEPA, the Federal Land Planning and Management Act (FLPMA), and the Administrative Procedure Act. Among other contentions, the plaintiffs asserted that “BLM’s failure to define or take action to prevent the unnecessary or undue degradation of lands in the context of recognized climate impacts,” as required by the FLPMA, violated the APA. They also contended that BLM violated NEPA by failing to consider a no leasing alternative; failing to take a hard look at “cumulative greenhouse gas emissions or the severity of resulting climate impacts” and declining to use any tool for quantitatively assessing the RMP’s climate pollution impact; and failing to take a hard look at the 20-year global warming potential of methane emissions. Citizens for a Healthy Community v. U.S. Bureau of Land Management, No. 1:20-cv-2484 (D. Colo., filed Aug. 19, 2020).
Lawsuit Challenged Decision Not to Protect California Spotted Owl Under Endangered Species Act
Four environmental groups filed a lawsuit in the federal district court for the Northern District of California challenging the U.S. Fish and Wildlife Service’s (Service’s) determination that the California spotted owl did not warrant protection under the Endangered Species Act. The plaintiffs alleged that “the Service’s own scientific experts … predicted there will be increasing threats from climate change and associated increases in drought, tree mortality, and high-severity fire,” among other serious threats.” Sierra Forest Legacy v. U.S. Fish & Wildlife Service, No. 5:20-cv-05800 (N.D. Cal., filed Aug. 18, 2020).
EPA Sought Dismissal of Lawsuit Alleging Unreasonable Delay in Issuance of Methane Guidelines for Oil and Gas Sector
After EPA issued a final rule rescinding methane new source performance standards (NSPS) for the oil and natural gas sector, EPA sought the dismissal of a lawsuit seeking to compel it to issue guidelines for the regulation of methane emissions for existing sources in the sector. EPA argued that the case was prudentially moot because EPA no longer had the authority or duty to issue the guidelines. EPA further argued that it had not unreasonably delayed preparation of the methane guidelines because EPA had been conducting a review of the NSPS pursuant to President Trump’s Executive Order 13783 and knew that development of the guidelines for existing sources would likely have been futile prior to completion of that review. New York v. EPA, No. 1:18-cv-00773 (D.D.C. Aug. 14, 2020).
CEQA Lawsuit Filed to Challenge Review of Lakeside Development
Three organizations filed a lawsuit asserting that San Bernardino County violated the California Environmental Quality Act (CEQA) when it approved a 50-lot residential development adjacent to Big Bear Lake. The petition alleged that the environmental impact report’s (EIR’s) conclusion that the project would not result in a significant impact on climate change was not supported by adequate analysis or substantial evidence. The petition asserted that the EIR’s measures to mitigate greenhouse gas emission would not be effective. With respect to proposed voluntary measures to require information be provided to tenants regarding the climate change mitigation benefits of reducing trash and vehicle miles traveled, the petition alleged that these measures “do not appear to be seriously designed to mitigate” emissions. The plaintiffs also said a requirement that the developer require at least 20% of landscape maintenance equipment be electric-powered was not within the developer’s authority and, moreover, did not appear to have been required by the County as a condition of approval. The petition also alleged that the County should have used an updated environmental baseline that included increased wildfire danger due to climate change and other factors. Friends of Big Bear Valley v. County of San Bernardino, No. __ (Cal. Super. Ct., filed Aug. 27, 2020).
Environmental Defense Fund Asked Court to Order Colorado Agencies to Propose Greenhouse Gas Regulations
Environmental Defense Fund filed a lawsuit in Colorado District Court to compel the Colorado Air Quality Control Commission and the Colorado Air Pollution Control Division to propose regulations to reduce statewide greenhouse gas emissions as required by laws enacted in 2019. The laws set a deadline of July 1, 2020 for publication of a notice of proposed rulemaking. WildEarth Guardians filed a similar lawsuit in July. Environmental Defense Fund v. Colorado Air Quality Control Commission, No. 2020CV32688 (Colo. Dist. Ct., filed Aug. 5, 2020).
HERE ARE RECENT ADDITIONS TO THE INTERNATIONAL CLIMATE LITIGATION CHART
Australian Court Vacated Convictions of Climate Protesters
On August 28, 2020, the Queensland District Court overturned the convictions of two climate protesters for using “locking” devices to obstruct a railway to a coal mine, concluding that the convictions and sentences were overly harsh under the circumstances.
During the 2019–2020 bushfires in Australia, the two defendants traveled to Queensland to protest the proposed expansion of coal mines in the Bowen basin. The protesters blocked a railway line that provides access to a coal loading facility by using tubular steel attachment devices to “lock” themselves to a 44-gallon drum filled with concrete, creating a device known as a “dragon’s den.” The devices can only be released voluntarily, or if someone else cuts the device, and cutting the device risks injury to the protesters. The defendants were charged with obstructing a railway; trespassing on a railway; using a dangerous attachment device to interfere with transport infrastructure; and contravening a direction or requirement. The dangerous attachment device offense was a new offense created by 2019 legislation that prohibits the use of devices such as “dragon dens”; the legislation was introduced in response to protests against coal mining and regarding climate change. The Acting Magistrate convicted and sentenced the defendants to three months imprisonment for that offense. Convictions were not recorded for the other offenses.
On appeal, the district court concluded that the device the protesters used fell within the definition of a “dragon’s den,” but that the gravity of the offense was minimal given the lack of evidence that any loss was suffered, that members of the public were burdened, or that there was violence or the threat of violence. The court further explained that the defendants “have the right to express their views and to protest against an activity to which they object subject only to such restrictions as are prescribed by law and are necessary in a democratic society for (amongst other legitimate aims) the prevention of disorder or crime or the protection of the rights and freedoms of others,” and that “the motive for the commission of the offen[s]e will often be relevant to the moral culpability of the offender, the weight to given to personal deterrence and it may affect the weight to be given to general deterrence.” The court accordingly allowed the appeal, vacated the convictions, and resentenced the defendants to a single fine of $1,000. EH v. Queensland Police Service; GS v. Queensland Police Service, [2020] QDC 205 (Queensland District Court).
German Environmental Group Challenged Gas Pipeline Approval
On July 27, 2020, the German environmental organization Deutsche Umwelthilfe (DUH) filed an action against the Stralsund Mining Authority in the supreme administrative court of the State of Mecklenburg-Western Pomerania. According to news reports, DUH seeks reconsideration of the Authority’s January 2018 decision to issue a permit for Russian-owned Gazprom’s Nord Stream 2 gas pipeline. DUH asks the Authority to review the permit in the context of related methane emissions, arguing that a significant upward revision of estimated methane emissions from gas production has occurred since the permit was granted. If the Authority does not agree to reconsider the permit, DUH requests that the German court suspend the permit and refer the case to the European Court of Justice. Deutsche Umwelthilfe v. Stralsund Mining Authority (Supreme Administrative Court of the State of Mecklenburg-Western Pomerania).
Australia Sought Dismissal of Torres Strait Islanders Petition
In 2019 a group of eight Torres Strait Islanders submitted a petition against the Australian government to the United Nations Human Rights Committee. The petition alleges that Australia is violating the plaintiffs’ fundamental human rights under the International Covenant on Civil and Political Rights (ICCPR) due to the government’s failure to address climate change. On August 13, 2020, Australia asked the Committee to dismiss the petition. Petition of Torres Strait Islanders to the United Nations Human Rights Committee Alleging Violations Stemming from Australia’s Inaction on Climate Change (UN Human Rights Committee).
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FEATURED VIDEO
Climate Change in the Courts Webinar, June 5, 2020
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