News & Announcements

Featured Publications

Upcoming Events & Videos of Past Events

New on the Climate Law Blog

• The Tragedy on the Financial Horizon is Closer Than You Think, by Ilmi Granoff, May 4, 2023
• Navigating the Intersection of Climate Change and the Law of the Sea: Exploring the ITLOS Advisory Opinion’s Substantive Content, by Maria José Alarcon and Maria Antonia Tigre, April 24, 2023
• Harnessing the Ocean's Power to Combat the Climate Crisis, by Tiffany Challe-Campiz, April 21, 2023
• Ninth Circuit Holds Berkeley's Gas Ban Preempted by U.S. Energy Policy & Conservation Act, by Amy Turner, April 18, 2023
• The Advisory Jurisdiction of the ITLOS in the Request Submitted by the Commission of Small Island States, by Armando Rocha, April 12, 2023
• FERC's Proposed Rule on Siting Interstate Transmission Could Expedite Permitting and Ensure Climate Resilience, by Matthew Einsenson, April 11, 2023

Updates to the Climate Case Charts

Supreme Court Denied Fossil Fuel Companies’ Requests for Certiorari on Jurisdictional Issues in State and Local Government Climate Cases
 
On April 24, 2023, the U.S. Supreme Court denied fossil fuel industry defendants’ petitions for writ of certiorari seeking review of decisions affirming remand orders that sent climate change cases brought by state and local governments back to state courts. The fossil fuel companies had asked the Court to consider whether there was federal jurisdiction over state-law claims seeking redress for injuries allegedly caused by the effects of interstate or transboundary greenhouse gas emissions on the global climate because federal common law necessarily governs such claims. The petition in cases brought by the City and County of Honolulu and the County of Maui also presented a question regarding the application of the federal officer removal statute. Justice Alito did not participate in the consideration of or decision on the petitions. In the case brought by Colorado local governments, the order list noted that Justice Kavanaugh would have granted the petition. The April 24 denials of certiorari involved decisions by four circuit courts of appeals (First, Fourth, Ninth, and Tenth) and 11 cases. A petition for writ of certiorari was still pending for review of the Third Circuit’s decision affirming remand orders in cases brought by the City of Hoboken and State of Delaware. The petition was scheduled for the Court’s conference on May 11. Suncor Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County, No. 21-1550 (U.S. Apr. 24, 2023); BP p.l.c. v. Mayor & City Council of Baltimore, 22-361 (U.S. Apr. 24, 2023); Shell Oil Products Co. v. Rhode Island, No. 22-524 (U.S. Apr. 24, 2023); Chevron Corp. v. County of San Mateo, No. 22-495 (U.S. Apr. 24, 2023); Sunoco LP v. City & County of Honolulu, No. 22-523 (U.S. Apr. 24, 2023); BP America Inc. v. Delaware, No. 22-821 (U.S.)
 
Ninth Circuit Said Federal Law Preempts Berkeley Ban on Natural Gas Piping in New Construction
 
Reversing a district court’s decision, the Ninth Circuit Court of Appeals held that the Energy Policy and Conservation Act (EPCA) expressly preempts the City of Berkeley’s 2019 ordinance banning the installation of natural gas piping in newly constructed buildings. EPCA’s preemption provision provides that after a federal energy conservation standard becomes effective for a “covered product,” “no State regulation concerning the energy efficiency, energy use, or water use of such covered product shall be effective with respect to such product.” A “covered product” includes consumer products such as kitchen ovens. The Ninth Circuit concluded that Berkeley’s ordinance was a “regulation concerning the … energy use” of a covered product because the plain text and structure of EPCA’s preemption provision “encompasses building codes that regulate natural gas use by covered products,” including by eliminating the use of natural gas. The Ninth Circuit disagreed with the district court’s interpretation of EPCA preemption as limited to facial regulations of consumer products, finding that “EPCA preemption extends to regulations that address the products themselves and the on-site infrastructure for their use of natural gas.” The Ninth Circuit also rejected Berkeley’s argument that the plaintiff—the California Restaurant Association—lacked standing because it did not establish an imminent harm to its members. There were two concurring opinions. The first suggested a need for further guidance on the question of whether the presumption against preemption applies to express preemption provisions like the one in EPCA. The second concurrence expressed “reservations” about the plaintiff’s standing since the complaint did not identify an individual member injured by the ordinance; it also explained why the judge believed that the Berkeley ordinance “cuts to the heart” of what EPCA preemption was intended to prevent: “state and local manipulation of building codes for new construction to regulate the natural gas consumption of covered products when gas service is otherwise available to premises where such products are used.” Sabin Center Senior Fellow Amy Turner published a Climate Law blog post about the Ninth Circuit’s decision and its implications for other local laws. California Restaurant Association v. City of Berkeley, No. 21-16278 (9th Cir. Apr. 17, 2023)

Mexican Supreme Court Denied Claim that Elimination of Climate Change Fund Violated Constitutional Right to Healthy Environment

The General Law on Climate Change in Mexico was issued in 2012. This law contemplated the Climate Change Fund, a public trust fund created to increase the existing resources to address climate change. According to article 80 of the Law, it had the objective of attracting and channeling public, private, national, and international financial resources to support the implementation of actions to address climate change. However, in 2020 the Mexican Congress reformed the Law and eliminated the Climate Change Fund.
 
In December 2020, the Mexican Center for Environmental Law (CEMDA) filed a complaint challenging the amendments, arguing among other things, that it violates the constitutional right to a healthy environment. CEMDA requested an injunction to suspend the effects of the amendments, asking the Court to stop the elimination of the Fund. The injunction was denied, and CEMDA appealed the decision before a Collegiate Tribunal. The Tribunal decided in August 2021 to send the appeal to the Mexican Supreme Court.
 
On April 12, 2023, the Supreme Court decided that it is not up to the judges to evaluate whether a public policy, in a broad sense, is suitable to fulfill a specific purpose, since these decisions correspond to the executive and legislative branches of government. Considering that the modification of the strategy to combat climate change (to extinguish the Climate Change Fund and transfer that budget directly assigned to the Environmental Secretariat) is a matter of public policy, this modification cannot be analyzed by judges. Legislators have ample freedom to determine the mechanisms they deem appropriate to direct the policy to combat climate change.
 
Furthermore, it was determined that it was not demonstrated that the Fund’s resources, after the modification, will not be used in a correct, transparent, and equitable manner. Therefore, the lower court’s decision was confirmed, and the claim was denied. Mexican Center for Environmental Law (CEMDA) v. Mexico (on the Climate Change Fund) (Supreme Court, Mexico)