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Here are highlights of this month's climate litigation update. The full update is available here:
D.C. Circuit Upheld EPA’s Domestic Aircraft Emission Standards
The D.C. Circuit Court of Appeals denied petitions for review challenging the U.S. Environmental Protection Agency’s (EPA’s) adoption of regulations that aligned emissions standards for domestic aircraft with “technology-following” standards promulgated by the International Civil Aviation Organization (ICAO) rather than establish “technology-forcing” standards. As a threshold matter, the court determined that it had jurisdiction because at least one of the state petitioners—Massachusetts—had standing under Supreme Court precedent in the nearly factually identical Massachusetts v. EPA. On the merits, the D.C. Circuit first held that the applicable Clean Air Act provision did not mandate a technology-forcing approach and that the EPA regulation permissibly implemented the provision by aligning domestic regulations with ICAO standards. Second, the D.C. Circuit rejected the petitioners’ arguments that the regulation was arbitrary and capricious. The petitioners contended that EPA failed to account for climate change harms, failed to consider alternatives that would reduce greenhouse gas emissions, and failed to sufficiently consider impacts on minority and low-income populations and on federalism interests as required by two executive orders. The court found that EPA reasonably determined that the best way to reduce global greenhouse gas emissions was to align domestic standards with international standards and that, given this conclusion, it was not necessary for EPA “to exhaustively examine alternatives that departed from these standards.” The court also found that the two executive orders, which provided no right to judicial review, foreclosed the argument that EPA acted arbitrarily and capriciously by failing to comply with them. California v. EPA, Nos. 21-1018, 21-1021 (D.C. Cir. June 30, 2023)
Committee finds that Shell’s claims of climate neutrality in the “Make a difference. Drive CO2 neutral” campaign violate of the Code for Environmental Advertising
The contested advertisement contained several statements by Shell in the campaign “Make a difference. Drive CO2 neutral,” specifically on Shell’s website. The complaint alleged that Shell falsely claimed that the damage caused by CO2 emissions can be offset or neutralized through voluntary carbon credits. The complaint was based on various scientific reports, including the IPCC Synthesis Report in 2014. The Reclame Code Committee (RCC), the Dutch advertising authority, held that the average consumers would understand the term “neutralized” to mean that the harm caused by CO2 emissions was completely compensated by offsetting measures. This impression was reinforced when Shell issued an explanation of the campaign on its website. While the RCC acknowledged that Shell had plausibly demonstrated that it followed certain standards and guidelines, it pointed out that Shell did not guarantee the full offsetting in practice. The RCC stressed that article 3 of the Code for Environmental Advertising (MRC) set a high bar with regards to environmental claims which must be demonstrably correct. Against this background, Shell's claims were too absolute, as they guaranteed a result which was not certain. Thus, the Committee found the advertising claims to be misleading and in breach of articles 2 and 3 of the MRC. RCC Ruling on Shell “Drive CO2 neutral” 1 (Reclame Code Commissie, Netherlands).
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