March 2024 Updates to the Climate Case Charts
Each month, the Sabin Center for Climate Change Law collects and summarizes developments in climate-related litigation, which we also add to our U.S. and global climate litigation charts. If you know of any cases we have missed, please email us at [email protected].
HERE ARE THE ADDITIONS TO THEÂ CLIMATEÂ CASEÂ CHARTÂ FOR UPDATE #180:
FEATURED CASE
Fossil Fuel Companies Asked U.S. Supreme Court to Consider Viability of Honoluluâs State-Law Climate Change Claims
On February 28, 2024, fossil fuel companies filed a petition for writ of certiorari in the U.S. Supreme Court seeking review of the Hawaiâi Supreme Courtâs October 2023 decision allowing the City and County of Honolulu and the local water utility board (Honolulu) to proceed with state common law claims based on the companiesâ alleged misrepresentations and concealment of their productsâ contributions to climate change. The companiesâ petition presented a single question: âWhether federal law precludes state-law claims seeking redress for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate.â The companies contended that the case presented the Court with âits only foreseeable opportunity in the near future to decide a dispositive question that is arising in every climate-change case.â They characterized the question as one âof extraordinary importance to the energy industry, which is facing dozens of lawsuits seeking billions of dollars in damages for the alleged effects of global climate change.â They argued that the Hawaiâi Supreme Courtâs decision conflicted with the Second Circuitâs decision in City of New York v. BP p.l.c.âwhich held that federal law precluded similar claims by New York Cityâand also could not be reconciled with other federal circuit of appeals decisions regarding the application of state law to interstate pollution. The companies also argued that the Hawaiâi Supreme Courtâs decision conflicted with U.S. Supreme Court precedent, which the companies summarized as providing that âregulation of interstate pollution is an inherently federal area necessarily governed by federal law, and Congress has not permittedâand indeed has preemptedâresort to state law except for claims seeking redress for harms caused by in-state emissions.â The companies also argued that the Hawaiâi Supreme Courtâs conclusion that Honoluluâs claims âdid not fall within the inherently federal area of interstate pollutionâ was based on âa false dichotomyâ between injury caused by failure to warn and deceptive promotion and injury caused by interstate and international emissions. The companies contended that the Supreme Courtâs review was warranted because â[t]he stakes could not be higherâ; they stated that the more than two dozen cases filed by states and municipalities against fossil fuel companies âpresent a serious threat to one of the Nationâs most vital industries.â They argued that allowing cases to proceed under state law was âa blueprint for chaosâ and that Honoluluâs case was a âsuitable vehicleâ for reviewing the question presented. Sunoco LP v. City & County of Honolulu, No. 23-947 (U.S. Feb. 28, 2024)
Shell plc and two of its subsidiaries filed a separate petition for writ of certiorari. The petition presented two questions: (1) âWhether claims seeking damages for the effects of interstate and international emissions on the global climate are beyond the limits of state law and thus preempted under the federal Constitution,â and (2) âWhether the Clean Air Act preempts state-law claims predicated on damaging interstate emissions.â Shell plc v. City & County of Honolulu, No. 23-952 (U.S. Feb. 28, 2024)
DECISIONS AND SETTLEMENTS
Fourth Circuit Affirmed Remand of Anne Arundel County and Annapolis Climate Cases Against Fossil Fuel Companies
The Fourth Circuit Court of Appeals affirmed a district courtâs decision remanding cases brought by Anne Arundel County and the City of Annapolis against fossil fuel companies to state court. The Fourth Circuit described the cases as two of the cases brought by state and local governments in recent years alleging that the defendants âmisrepresented and concealed information about their fossil fuel products in violation of state tort and consumer protection laws.â The Fourth Circuit said the companies âhave soughtâover and over and overâto remove the cases to federal courtâ but that âthat gambit has failed in at least ten cases already,â and â[t]he eleventh time is not the charm.â Â The Fourth Circuit noted that the district court in Anne Arundel Countyâs and Annapolisâs cases had rejected most grounds for removal as foreclosed by the Fourth Circuitâs 2022 decision in Mayor & City Council of Baltimore v. BP p.l.c. and that the district court also rejected a variation of one of those foreclosed grounds (federal-officer removal) as well as a new argument for removal related to the companiesâ First Amendment defenses to the plaintiffsâ claims. Regarding the variation of the defendantsâ federal-officer removal argument, the Fourth Circuit concluded that it did not supply a basis for jurisdiction because the actions that the companies said they did under federal authorityâincluding production of fuels in connection with military activity in the 1940s and 1950s and extraction of fuels and operation of energy infrastructure under federal regulations or commercial relationships with the federal governmentâwere not the activities that were the subject of the plaintiffsâ allegations, which concerned concealment or misrepresentation of information about fossil fuel products. Regarding the defendantsâ new argument that courts would necessarily have to consider First Amendment questions regarding protection of commercial speech to resolve the localitiesâ misrepresentation claims, the Fourth Circuit agreed with two other circuit courts of appeals that the First Amendment issues were not ânecessary elementsâ of the local governmentâs claims and therefore did not supply a basis for federal jurisdiction. Anne Arundel County v. BP p.l.c., No. 22-2082 (4th Cir. Feb. 26, 2024)
Vermont Federal Court Remanded Stateâs Consumer Protection Claims Against Fossil Fuel Companies to State Court
The federal district court for the District of Vermont granted the State of Vermontâs motion to remand to state court the Stateâs case asserting that fossil fuel company defendants violated the Vermont Consumer Protection Act (VCPA) by engaging in deceptive acts and unfair practices regarding their productsâ contributions to climate change. The court noted that its review was guided by the Second Circuitâs September 2023 decision in Connecticut v. Exxon Mobil Corp., which addressed several of the jurisdictional questions raised in this case and answered them in favor of Connecticut. In Vermontâs case, the district court first found that, as in the Connecticut case, the Grable exception to the well-pleaded complaint rule did not apply because the VCPA claims could be resolved without addressing a federal issue and because no federal issue was necessarily raised. (The well-pleaded complaint rule provides âthat federal jurisdiction exists only when a federal question is presented on the face of the plaintiffâs properly pleaded complaint.â) The district court rejected the defendantsâ contentions that Vermontâs claims regarding their advertising practices necessarily raised federal issues regarding compliance with federal environmental and fuel economy standards and that Vermontâs claims also necessarily raised federal policy issues regarding governmental promotion of fossil fuels. Second, the district court rejected the federal common law of transboundary pollution or foreign affairs as a basis for the complete preemption exception to the well-pleaded complaint rule; the court found that the complaint made clear that the case was about deception and unfair business practices in Vermont, not air pollution or international treaties. The court then cited the reasoning of the Second Circuitâs Connecticut decision to reject arguments that there was federal jurisdiction under the federal-officer removal statute or the Outer Continental Shelf Lands Act. In addition, the district court found that there was no federal enclave jurisdiction, rejecting the defendantsâ argument that such jurisdiction was appropriate because the complaint alleged statewide climate change harms that would encompass harms in âa few isolated federal enclaves within Vermontâ such as national forest and national park lands and ports of entry. In addition, the court found that there was no diversity jurisdiction. The court, however, denied Vermontâs request for costs and fees incurred as a result of removal, finding that the defendants did not lack an objectively reasonable basis for removal. Vermont v. Exxon Mobil Corp., No. 2:21-cv-00260 (D. Vt. Feb. 6, 2024)
Delaware Trial Court Denied Interlocutory Appellate Review for Its Decision Narrowing Stateâs Claims Against Fossil Fuel Defendants
The Delaware trial court hearing the State of Delawareâs climate change case against fossil fuel industry defendants denied the Stateâs application for interlocutory review by the Delaware Supreme Court of the trial courtâs January 2024 decision narrowing the scope of the Stateâs claims. The trial court found that although its decision had determined âsubstantial issues of material importance,â the âlikely benefits of interlocutory review do not outweigh the inefficiency, disruption, and probable costs.â The trial court said â[r]eliance on well-established federal precedentâ and application of a recent Delaware Supreme Court decision (on nuisance) did not warrant interlocutory review as of right. The court also found that its opinion did not conflict with decisions of other Delaware trial courts and that interlocutory appeal âclearly will not terminate the litigation.â Two days earlier, the court denied five defendantsâ motion for reargument related to Delawareâs failure to warn claim. The court rejected arguments that the claim required Delaware to allege that each individual defendant had âspecificâ or âspecialâ knowledge regarding the productsâ alleged dangers or to plead specific marketing efforts to Delaware consumers. State v. BP America, Inc., No. N20C-09-097 (Del. Super. Ct. Feb. 12 and 14, 2024)
Ninth Circuit Denied Request to Stay Litigation in Juliana While Petition for Writ of Mandamus Is Pending
The Ninth Circuit Court of Appeals denied the motion by the U.S. and other federal parties for a motion to stay proceedings in Juliana v. United States while the Ninth Circuit considers the governmentâs petition for writ of mandamus, which asks the Ninth Circuit to order the district court to dismiss the case. The stay motion was denied without prejudice to renewal following the district courtâs decision on a pending stay motion. The Ninth Circuit also found that the petition for writ of mandamus âraises issues that warrant answerâ and directed the real parties in interest (i.e., the plaintiffs) to file an answer within 21 days. United States v. U.S. District Court for the District of Oregon, No. 24-684 (9th Cir. Feb. 29, 2024)
Ninth Circuit Said Challenge to 2017 Rescission of Coal Leasing Program Was Moot
In an unpublished memorandum, the Ninth Circuit Court of Appeals held that a lawsuit challenging former Secretary of the Interior Ryan Zinkeâs 2017 rescission of an Obama administration moratorium on the federal coal leasing program was moot because Secretary of the Interior Deb Haaland had ârevokedâ the Zinke order in April 2021. The Ninth Circuit said a district court had incorrectly concluded that Secretary Haalandâs failure to reinstate the moratorium meant that the Zinke order remained in partial effect; the Ninth Circuit said any injury related to the absence of a moratorium was not fairly traceable to the revoked Zinke order. The Ninth Circuit also found that the voluntary cessation exception to mootness did not apply. Citizens for Clean Energy v. U.S. Department of the Interior, No. 22-35789 (9th Cir. Feb. 21, 2024)
D.C. Circuit Granted EPA Request for Voluntary Remand of Challenges to 2020 Decision to Retain Ozone Standards
The D.C. Circuit Court of Appeals granted the U.S. Environmental Protection Agencyâs (EPAâs) request for voluntary remand of challenges to EPAâs 2020 determination to retain the existing national ambient air quality standards (NAAQS) for ozone. EPA contended, and no party objected, that remand was appropriate because EPA had initiated a full review of the ozone NAAQS that would incorporate reconsideration of the 2020 determination. Although the 2020 determination, ensuing litigation, and full review of the NAAQS do not directly implicate greenhouse gases and climate change, the nonprofit group Energy Policy Advocates filed an amicus brief in 2021 contending that the challenges to the 2020 determination were part of a coordinated âbackdoorâ effort by EPA and the petitioners to regulate carbon dioxide and other greenhouse gases. The group also argued that the lawsuits also were motivated by a desire to provide a basis for private plaintiffsâ arguments in climate nuisance suits against private parties that the Clean Air Act did not displace their claims. New York v. EPA, No. 21-1028 (D.C. Cir. Feb. 2, 2024)
Fifth Circuit Said Repeal of Efficiency Standards for Short-Cycle Appliances Was Arbitrary and Capricious
The Fifth Circuit Court of Appeals held that a 2022 U.S. Department of Energy (DOE) acted arbitrarily and capriciously when it repealed energy efficiency standards adopted in 2020 for dishwashers and laundry machines with shorter cycle times. As a threshold matter, the Fifth Circuit rejected the federal defendantsâ argument that the states challenging the 2022 rule lacked standing. On the merits, the Fifth Circuit first found that it was unclear whether DOE had statutory authority to regulate water use in dishwashers and laundry machines and that, even if it did, the agency âfailed to adequately consider the negative consequencesâ of repealing the 2020 standards, including the substitution effects of energy-and-water-wasting rewashing, prewashing, and handwashing,â and also failed to adequately consider the âimpact of the energy conservation program on âperformance characteristics,ââ such as cycle time. The Fifth Circuit also held that DOEâs belief that the 2020 standards were legally invalid was an insufficient basis for repealing the standards and that DOE should have considered alternatives to complete elimination of standards for short-cycle appliances. Louisiana v. U.S. Department of Energy, No. 22-60146 (5th Cir. Jan. 8, 2024)
New Jersey Federal Court Dismissed Challenge to Incidental Take Authorizations for Offshore Wind Projects
The federal district court for the District of New Jersey dismissed a challenge brought by an environmental group and its president to the National Marine Fisheries Serviceâs incidental take/ harassment authorizations (ITAs) for offshore wind projects for lack of subject matter jurisdiction. The plaintiffsâ allegations included claims that the climate change benefits of offshore wind were overstated and that the defendants failed to recognize âthe immense carbon sequestration capacity of great whales.â The court found that the plaintiffs failed to allege injury-in-fact and therefore lacked standing. The court also found that challenges to pending incidental take authorizations were not ripe because the pending ITAs were not final agency actions. In addition, the court found that any challenge to an expired ITA was moot. Save Long Beach Island v. U.S. Department of Commerce, No. 3:23-cv-01886 (D.N.J. Feb. 29, 2024)
Federal Magistrate Recommended Dismissal of Challenge to Portland Restrictions on Fossil Fuel Terminals
A magistrate judge in the federal district court for the District of Oregon recommended that the court dismiss a lawsuit challenging a City of Portland ordinance restricting construction or expansion of bulk fossil fuel terminals. The lawsuit was brought by the State of Montana, several trade groups, and a Washington-based fuel distributor. Although the magistrate recommended that the court find that the distributor had standing based on the ordinanceâs alleged negative impact on property value, the magistrate concluded that the plaintiffs failed to state any claims. The magistrate found that the ordinance did not discriminate against interstate commerce, that neither the Foreign Commerce Clause nor other federal law displaced or preempted the ordinance, and that the ordinance did not violate plaintiffsâ substantive due process rights. Montana v. City of Portland, No. 3:23-cv-00219 (D. Or. Feb. 26, 2023)
One Week After Filing of Lawsuit, Department of Energy Agreed to Withdraw Emergency Request for Cryptocurrency Energy Information
On February 22, 2024, a cryptocurrency industry group and a company that conducts bitcoin mining operations at a Texas facility filed a lawsuit in the federal district court for the Western District of Texas asserting that the Energy Information Administration (EIA) and the Office of Management and Budget violated the Paperwork Reduction Act and Administrative Procedure Act when EIA issued an information request for energy information from cryptocurrency mining companies. The plaintiffs alleged that EIA based its request for emergency approval of the information collection on a âfacially absurdâ contention that âpublic harmâ would otherwise result due to potential strains on the electric grid that could result from increased energy consumption arising from mining activity and a âmajor cold snap.â The plaintiffs alleged that the emergency information collection request âwas driven by forces outside of EIAâ; they emphasized an excerpt from President Bidenâs Executive Order 14067, âEnsuring Responsible Development of Digital Assets,â which expressed the U.S.âs interest in ensuring that digital asset technologies operate in a way that âreduces negative climate impacts and environmental pollution.â The complaint also cited concerns raised by certain senators and House of Representatives members regarding cryptocurrencyâs impacts on climate change. On February 23, the court issued a temporary restraining order (TRO) barring the defendants from collecting data and directing the defendants to sequester and not share any data already received. The court found that the plaintiffs established that irreparable injury would result without a TRO based on their allegations of nonrecoverable costs of compliance, a credible threat of prosecution for failure to comply with the information collection request, and disclosure of proprietary information. The court also found that the plaintiffs were likely to be able to show that the defendantsâ support for an emergency request fell âfar short of justifying such an actionâ and that the balance of harms favored granting a TRO. On February 26, EIA notified OMB that it was immediately discontinuing the emergency collection and would instead proceed through the Paperwork Reduction Actâs notice-and-comment procedures. On March 1, the plaintiffs and defendants filed a notice memorializing an agreement that provides that EIA will destroy any information already received or received in the future pursuant to the emergency request. In addition, EIA will publish a new notice of proposed collection of information, and the plaintiffs and a proposed intervenor (Chamber of Digital Commerce) will withdraw the request for a preliminary injunction and not pursue further relief regarding the emergency collection request. The parties asked the court to stay and administratively close the case. Texas Blockchain Council v. Department of Energy, No. 6:24-cv-00099 (W.D. Tex. Feb. 23, 2024)
Alaska Federal Court to Hear Case Challenging Cancellation of Arctic National Wildlife Refuge Lease
The federal district court for the District of Alaska concluded that the September 2023 cancellation of the plaintiffâs oil and gas leases for the Coastal Plain of the Arctic National Wildlife Refuge did not moot the case challenging the Biden administrationâs 2021 moratorium on ANWR leasing program activities while supplemental environmental review was conducted. The court also rejected the plaintiffâs motion requesting that it alter or amend its August 2023 decision rejecting the plaintiffsâ challenges to the moratorium. The plaintiff had asked the court to modify the decision to ârecognize that the various follow-up matters ancillary to the issuance of the leases ⊠must be addressed by the Federal Defendants with an urgency and timeliness proportional to the statutory deadlineâ of December 2021 established by the Tax Cuts and Jobs Act of 2017 for issuance of the leases. On February 23, 2024, the federal district court in the District of Columbia granted federal defendantsâ motion to transfer to the District of Alaska a case in which the same plaintiff challenged the September 2023 lease cancellation. The court agreed with the defendants that the District of Alaska was âthe superior forumâ because it would make âlittle senseâ to adjudicate the matter in the District of Columbia, to which the plaintiff had no connection, and when the lawsuitâs subject matter was in another state where a court already had ruled on a similar dispute involving the same parties. Alaska Industrial Development & Export Authority v. Biden, No. 3:21-cv-00245 (D. Alaska Feb. 22, 2024); Alaska Industrial Development & Export Authority v. U.S. Department of the Interior, No. 1:23-cv-03126 (D.D.C. Feb. 23, 2024)
Arizona Federal Court Ordered Preparation of EIS for Transfer of Colorado River Water Rights but Found that Agency Took Hard Look at Climate Change Cumulative Impacts
The federal district court for the District of Arizona set aside the U.S. Bureau of Reclamationâs (Reclamationâs) finding of no significant impact (FONSI) for the transfer of a farmâs Colorado River water entitlement to a town miles away. The court found that the plaintiffs raised at least two âsubstantial questionsâ regarding whether the transfer would have a significant effect on the environment. One, the plaintiffs showed that the transfer could establish a precedent for future water transfers with significant effects. Two, the plaintiffs showed that the water transfer might have a cumulatively significant impact on the growth of the town, which could cause significant effects. The court therefore remanded for preparation of an environmental impact statement (EIS) under the National Environment Policy Act. The court rejected the plaintiffsâ contentions regarding other shortcomings of the environmental review, including arguments that Reclamationâs analysis of cumulative impacts in the context of climate change, the ongoing megadrought, and resulting effects on the Colorado River was inadequate. The court found that even if Reclamation was required to consider cumulative impacts of climate change and the megadrought, the agency had analyzed these impacts to the extent they were applicable to the water transfer. The court also found that the plaintiffs did not raise a substantial question regarding unknown risks of the water transfer related to the long-term drought. County of Mohave v. U.S. Bureau of Reclamation, No. 22-cv-08246 (D. Ariz. Feb. 21, 2024)
California Federal Court Allowed Some Industry Claims to Proceed Against CARBâs âIn-Use Locomotive Regulationâ
The federal district court for the Eastern District of California granted in part and denied in part California officialsâ motion to dismiss a lawsuit challenging the California Air Resources Boardâs (CARBâs) âIn-Use Locomotive Regulation,â which included four primary components: (1) Spending Account requiring annual deposits for use only for certain categories of projects related to clean locomotives; (2) In-Use Operational Requirements restricting use of older locomotives starting in 2030; (3) Idling Requirements regulating function and maintenance of locomotives; and (4) Reporting and Recordkeeping Requirements for annual reports of emissions information for non-zero emissions locomotives. In addition, the regulationâs Administrative Payment Provision requires an annual payment to CARB of $175 per locomotive that operates in the state. The court found that the plaintiffsâ claims challenging the Spending Account and In-Use Operational requirements were not ripe, including a dormant Commerce Clause claim and claims that those requirements were preempted by the Interstate Commerce Commission Termination Act (ICCTA) and Clean Air Act. The court found that the plaintiffs could not show that enforcement of these requirements was âsufficiently concrete or imminentâ because California could not enforce them absent approval by EPA under Clean Air Act Section 209(e)(2), which is interpreted to bar California from regulating new locomotives. The court also found that the plaintiffs failed to sufficiently allege an economic injury for their Locomotive Inspection Act preemption challenge to the Idling Requirements because they did not allege how the purportedly preempted provision would impose news costs on the plaintiffs. The court found that the plaintiffs did have standing for their ICCTA and dormant Commerce Clause challenges to the Idling Requirements. The court dismissed facial ICCTA preemption and dormant Commerce Clause challenges to the Reporting and Recordkeeping Requirements but allowed as-applied challenges to proceed. The court also found that the plaintiffs stated a dormant Commerce Clause claim challenging the Administrative Payment Provision. Association of American Railroads v. Randolph, No. 2:23-cv-01154 (E.D. Cal. Feb. 16, 2024)
After Postal Service Increased Electric Vehicle Commitment, One NEPA Lawsuit Withdrawn and Two Continue
On January 30, 2024, the federal district court for the Southern District of New York so-ordered the dismissal without prejudice of a lawsuit brought by Natural Resources Defense Council and the UAW labor union asserting that the U.S. Postal Service (USPS) failed to comply with the National Environmental Policy Act (NEPA) in connection with the Next Generation Delivery Vehicles program to replace its fleet. The plaintiffs agreed to the dismissal of the lawsuit after USPS conducted supplemental environmental review and increased the percentage of electric vehicles to be procured from 10% to 62% of the total number of vehicles to be acquired. In two other lawsuits, the plaintiffs filed supplemental complaints alleging that USPSâs supplemental review again failed to consider a reasonable range of alternatives and failed to take a hard look at the impacts of alternatives, including climate change impacts. State plaintiffs, led by California, also alleged that USPS failed to consider inconsistencies between the new 62% plan and plaintiffsâ laws and policies to reduce fossil fuel consumption and to electrify the transportation sector. California v. U.S. Postal Service, No. 3:22-cv-02583 (N.D. Cal.); CleanAirNow v. DeJoy, No. 3:22-cv-02576 (N.D. Cal.); Natural Resources Defense Council, Inc. v. DeJoy, No. 1:22-cv-03442 (S.D.N.Y. Jan. 30, 2024)
California Federal Court Said Federal Laws Did Not Preempt South Coast Air Quality Management District
The federal district court for the Central District of California ruled that neither the Clean Air Act, the Federal Aviation Administration Authorization Act (FAAAA), nor the Airline Deregulation Act (ADA) preempted the South Coast Air Quality Management Districtâs (SCAQMDâs) Warehouse Actions and Investments to Reduce Emissions rule (WAIRE), which applies to owners and operators of warehouses with at least 100,000 square feet of indoor floor space in a single building. An owner or operator must earn a certain number of âWAIRE Pointsâ based on the number and types of trucks that visit a warehouse annually. WAIRE Points are earned (1) by completing certain actions on a WAIRE Menu (e.g., acquisition of zero-emission (ZE) or near-zero-emission trucks (NZE); installation of zero-emission charging or fueling infrastructure; installation and use of onsite solar panels; and installation of air filters in residences, day care facilities, hospitals or community centers); (2) by performing actions in a Custom WAIRE Plan; or (3) by paying a mitigation fee. Regarding Clean Air Act preemption, the court found that the plaintiff and intervenor-plaintiff (plaintiffs) did not meet their burden of showing that WAIRE was a âstandardâ that the Clean Air Act expressly preempts; the court also found that WAIRE did not indirectly regulate within the preempted field âsuch that it effectively mandates a specific, preempted outcomeâ (i.e., the purchase of ZE or NZE trucks). In addition, the court found that the plaintiffs did not meet their burden of showing that WAIRE relates to the control of emissions from new motor vehicles or new motor vehicle engines. Regarding ADA and FAAAA preemption, the court found that the plaintiffs did not show that WAIREâs effect on air carriersâ integrated air delivery system was âmore than tenuous, remove and peripheral.â The parties subsequently agreed to the dismissal of state-law claims, which related to whether SCAQMD had statutory authority for WAIRE and whether it establishes an illegal tax, to permit final judgment as to all claims. California Trucking Association v. South Coast Air Quality Management District, No. 2:21-cv-06341 (C.D. Cal. Dec. 14, 2023)
California Appellate Court Said EIR Was Not Required for Construction Debris Recycling Facility
The California Court of Appeal found that the County of San Diego should have limited its California Environmental Quality Act (CEQA) review of a construction, demolition, and inert debris recycling facility proposed for a site designated for industrial use in the Countyâs 2011 General Plan Update (GPU). The court concluded that the proposed facility qualified for a CEQA exemption for projects that are consistent with a GPU and do not impose significant and peculiar environmental impacts not already contemplated by the environmental impact report (EIR) prepared for the GPU. The court did not find substantial evidence to support the Countyâs finding that the project would result in peculiar impacts in the areas of aesthetics, noise, traffic, greenhouse gas emissions, and air quality. Regarding greenhouse gas emissions, the appellate court further found that substantial evidence did not support the Countyâs determination that previously adopted uniform policies and procedures would not adequately mitigate the proposed projectâs impacts. The Court of Appeal directed the trial court to direct the County to set aside its decision requiring preparation of an EIR. Hilltop Group, Inc. v. County of San Diego, No. D081124 (Cal. Ct. App. Feb. 16, 2024)
D.C. Court of Appeals Affirmed Attorneysâ Fees Awards Against Climate Scientist Who Voluntarily Withdrew Defamation Action
The District of Columbia Court of Appeals affirmed the awarding of attorneysâ fees in an action brought by a climate scientist who alleged that the defendantsâ publication of an article in a scientific journal criticizing the scientistâs research paper constituted defamation. The plaintiffâs paper âconcluded that the U.S. power grid could inexpensively move to â100% wind, water, and solarâ energy sources by 2050 without the need for ânatural gas, biofuels, nuclear power, or stationary batteries.â The article at issueâwhich was co-authored by one of the defendants and published in a journal published by the other defendantâcontended that the paper âused invalid modeling tools, contained modeling errors, and made implausible and inadequately supported assumptions.â The plaintiff voluntarily dismissed his suit after a hearing at which the trial court hinted it was likely to grant the defendantsâ special motions to dismiss under D.C.âs Anti-Strategic Litigation Lawsuits Against Public Participation Act (Anti-SLAPP Act). The trial court subsequently granted the defendantsâ motions for attorneysâ fees under the Anti-SLAPP Act, finding that they had prevailed in whole or in part. The Court of Appeals first concluded that the Anti-SLAPP Act permitted an award of attorneysâ fees against a plaintiff who voluntarily dismisses his suit. The court further concluded that the defendants had prevailed under either the âmerits-basedâ approach (whether the motion to dismiss would have succeeded but for the voluntary dismissal), the âcatalystâ approach (whether the motion to dismiss prompted the voluntary dismissal), or a modified catalyst approach based on a rebuttable presumption that the defendant prevailed when the special motion to dismiss precedes the voluntary dismissal. Regarding the merits-based approach, the court found that the plaintiff âhas no plausible hopeâ of showing that the defendants made a false and defamatory statement and did so with actual malice. The court said the plaintiff had instead asked the courts âto resolve a scientific debate, and that is something we are generally neither equipped to do, nor permitted to do by the First Amendment.â The court affirmed the award of $428,723 and $75,000 to the two defendants and remanded to the trial court for a determination of whether the defendants were entitled to additional attorneysâ fees incurred for the defense of the trial courtâs award. Jacobson v. Clack, No. 22-CV-0523 (D.C. Ct. App. Feb. 15, 2024)
Maryland Court Upheld Baltimore Stormwater Permits
The Maryland Appellate Court upheld the Maryland Department of the Environmentâs (DOEâs) issuance of municipal separate storm sewer system (MS4) permits to Baltimore City and Baltimore County. Among other things, the court rejected environmental advocacy groupsâ contention that the permits were ineffective because they failed to include âclimate change related conditions.â The court noted that DOE had concluded that adequate data regarding climate change effects did not exist at the time permits were issued and that DOE had said it would update its Stormwater Design Manual and practices to account for increased precipitation when more data was reported. The court found that the inclusion of reopener clauses in the permits to allow for modification based on such new data was a âflexible, iterative approachâ that complied with the MS4 legal framework. In re Blue Water Baltimore, Inc., Nos. 1426, 1803 (Md. App. Ct. Jan. 31, 2024)
San Diego Agreed to Monitor Progress Towards Greenhouse Gas Emissions Reduction Goals in Settlement to Resolve Lawsuits Challenging Climate Action Plan
Environmental groups and the City of San Diego reached an agreement to settle a lawsuit challenging the Cityâs 2022 Climate Action Plan and a related lawsuit challenging the growth plan for the Mira Mesa community. The settlement agreement provided that the City would take certain steps to monitor progress toward the Climate Action Planâs greenhouse gas emissions reduction targets for 2030 and 2035 based on a model linear trajectory of annual reductions. Beginning in 2026, if the annual emissions target is not met within a 12.5% margin of error, then the City must prepare an amendment to the Climate Action Plan. The settlement agreement also set a schedule for annual reporting and established requirements for public sharing of information related to implementation of the Climate Action Plan. Climate Action Campaign v. City of San Diego, No. 37-2022-00036430 (Cal. Super. Ct. Feb. 20, 2024); Coastal Environmental Rights Foundation v. City of San Diego, No. 37-2023-00006754 (Cal. Super. Ct. Feb. 20, 2024)
Jury Found Blog Post Authors Liable for Defamation of Climate Scientist Michael Mann, Awarded $1 Million in Punitive Damages
In the climate scientist Michael Mannâs defamation case against two writers who authored blog posts characterizing Mannâs work as fraudulent and attributing misconduct to him, a jury in D.C. Superior Court found that statements made by the writers were defamatory, relied on provably false facts, and were false. For the defendant who called Mann âthe Jerry Sandusky of climate science, except for instead of molesting children, he has molested and tortured data,â the jury found that the plaintiff proved that the defendant acted with reckless disregard for whether the fact was false. The jury awarded Mann $1 in compensatory damages and $1,000 in punitive damages against that defendant. The jury found that the plaintiff proved that the other defendant made the defamatory statements with knowledge of their falsity and reckless disregard for whether they were false. The statements included the defendantâs quotation of the other defendantâs comparison of Mann to Jerry Sandusky and a statement describing him as âthe man behind the fraudulent climate-change âhockey-stickâ graph, the very ringmaster of the tree-ring circus.â The jury awarded $1 in compensatory damages and $1 million in punitive damages against this defendant. Mann v. Simberg, No. 2012 CA 008263 B (D.C. Super. Ct. Feb. 8, 2024)
Virginia Court Said Lawsuit Challenging Stateâs Decision to Leave RGGI Could Proceed
Southern Environmental Law Center (SELC) announced that a Virginia Circuit Court had concluded that the Association of Energy Conservation Professionals had standing to challenge Virginiaâs decision to remove the state from the Regional Greenhouse Gas Initiative (RGGI). SELC reported that the court would allow two claims to move forward: (1) a challenge to Virginia agenciesâ authority to remove the state from RGGI and (2) a claim that the decision was not supported with the evidence required by the Virginia Administrative Process Act. The court dismissed a third claim and said it would take under advisement the request for suspension of the stateâs action while the lawsuit is pending. Association of Energy Conservation Professionals v. Virginia State Air Pollution Control Board, No. __ (Va. Cir. Ct. Feb. 5, 2024)
NEW CASES, MOTIONS, AND OTHER FILINGS
Chicago Filed Lawsuit Alleging Fossil Fuel Industryâs âDeception Campaignâ Caused Climate Change Harms
The City of Chicago filed a complaint in Illinois Circuit Court alleging that fossil fuel industry defendants engaged in a âsuccessful climate deception campaignâ since at least 1965 that misled consumers and the public about the impacts of greenhouse gas emissions from fossil fuels, which âhad the purpose and effect of inflating and sustaining the market for fossil fuels, whichâin turnâdrove up greenhouse gas emissions, accelerated global warming, and brought about devastating climate change impacts to the City of Chicago.â The complaint alleged that Chicago and its residents have spent and will continue to spend substantial sums to recover from these impacts and to protect the City from future impacts, which include more frequent and intense storms, flooding, droughts, extreme heat events, and shoreline erosion. Chicago alleged that in the absence of the defendantsâ âtortious and deceptive conduct and resultant contributions to global warming,â harmful climate change effects would have been âfar less extremeâ and âfuture harmful effects would also have been far less detrimentalâor would have been avoided entirely.â The complaint alleged that quantification of greenhouse gas pollution attributable to fossil fuel companiesâ products allows calculation of climatic and environmental response to emissions that can be attributed to fossil fuel defendants on an individual and aggregate basis. The complaint set forth 11 causes of action: strict products liabilityâfailure to warn; negligent products liabilityâfailure to warn; negligence; public nuisance; private nuisance; nuisance violations of the Municipal Code of Chicago (MCC); civil conspiracy; unjust enrichment; consumer fraudâmisleading, unfair, and deceptive practices in violation of the MCC (Chicago Consumer Protection Law); misrepresentations in connection with sale or advertisement of merchandise in violation of the MCC (Sale or Advertisement of Merchandise Act); and recovery of city costs of providing services in violation of the MCC (Cost Recovery Ordinance). The plaintiffs request compensatory damages; equitable relief, including abatement of the nuisances; penalties and recovery for injury or loss under the Chicago Consumer Protection Law and other MCC provisions; disgorgement of profits; costs; and pre-judgment interest. City of Chicago v. BP p.l.c., No. 2024CH01024 (Ill. Cir. Ct., filed Feb. 20, 2024)
Updates in Other State and Local Government Climate Cases Against Fossil Fuel Industry Defendants
- A California Superior Court granted a petition for coordination of the climate cases against fossil fuel companies brought by the California attorney general and local governments in California and recommended the coordination proceedings be assigned to San Francisco Superior Court. The plaintiffs and fossil fuel industry defendants disagreed as to the selection of the best court in which to coordinate the actions. Some defendants requested assignment to Contra Costa County or, alternatively, to Sacramento County. People v. Exxon Mobil Corp., No. CGC-23-609134 (Cal. Super. Ct. Feb. 5, 2024)
- Fossil fuel companies removed cases brought by two Tribes to federal court in Washington. The companies contended that the cases were removable because they were brought by Tribes âfor alleged damage to tribal lands and natural resources, including those held in trust by the United States, and thus invoke[] ⊠federal question jurisdictionâ and also because they implicate federal jurisdiction by seeking âto recoup health care costs that have allegedly been incurred in response to climate changeâ by the Tribes. Shoalwater Bay Indian Tribe v. Exxon Mobil Corp., No. 2:24-cv-00158 (W.D. Wash. Feb. 6, 2024); Makah Indian Tribe v. Exxon Mobil Corp., No. 2:24-cv-00157 (W.D. Wash. Feb. 6, 2024)
- A Colorado trial court held oral arguments on February 1, 2024 on motions to dismiss Boulder Countyâs case. Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.), Inc., No. 2018CV030349 (Colo. Dist. Ct. Feb. 1, 2024)
New York State Sued Beef Producer for Allegedly Misleading Claims Regarding Net-Zero Commitment
New York State Attorney General Letitia James filed a complaint in New York Supreme Court against JBS USA Food Company and JBS USA Food Company Holdings (JBS USA) alleging that the defendantsâthe âlargest producer of beef products in the worldââmade unsubstantiated and misleading environmental marketing claims about their commitment to reducing greenhouse gas emissions in violation of New York Stateâs consumer protection statutes. The complaint alleged that beef production contributes significantly to climate change through emissions of greenhouse gases and through land-use changes that reduce or eliminate carbon sinks, and that the top five meat and dairy corporations are responsible for more annual greenhouse gas emissions than ExxonMobil, Shell, or BP, individually, with JBS USA and its parents, subsidiaries, and affiliates (the JBS Group) being the top contributor. The complaint alleged that JBS USA knows that demand for its products will decrease if consumers view them as unsustainable and harmful to the environment and that the JBS Group had directed representations regarding its sustainability to New York consumers, including representations regarding the âNet Zero by 2040â commitment it made in 2021. New York alleged that self-regulating advertising industry groups had found this claim to be misleading. New York also contended that the JBS Groupâs greenhouse gas emissions calculations have not accounted for Scope 3 emissions resulting from Amazon deforestation and other land use changes in its supply chain and that the Net Zero by 2040 commitment also was misleading based on the JBS Groupâs plans to increase demand for its products. The complaint requested that the court enjoin JBS USA from violating the consumer protection statutes; order the defendants to disgorge profits traceable to these violations; grant civil penalties; perform independent audits of consumer-facing publications; and pay the Stateâs costs and attorneysâ fees. People v. JBS USA Food Co., No. __ (N.Y. Sup. Ct., filed Feb. 28, 2024)
Nonprofit Groups Challenged EPA Approval of Louisiana Permitting Authority for Geologic Carbon Sequestration Facilities
Two environmental organizations and a utility consumer advocacy group filed a petition for review in the Fifth Circuit Court of Appeals challenging the U.S. Environmental Protection Agencyâs (EPAâs) final rule approving the State of Louisianaâs application to revise its underground injection control (UIC) program to include Class VI injection well primary enforcement responsibility (primacy). The final rule allows the Louisiana Department of Natural Resources to issue UIC permits for geologic carbon sequestration facilities and ensure compliance of Class VI wells under the UIC program. Deep South Center for Environmental Justice v. EPA, No. 24-60084 (5th Cir., filed Feb. 20, 2024)
Industry and Environmental Groups Challenged Outer Continental Shelf Oil and Gas Leasing Program for 2024-2029
Environmental groups and American Petroleum Institute filed separate petitions for review in the D.C. Circuit Court of Appeals challenging the Bureau of Ocean Energy Managementâs approval of the 2024-2029 National Outer Continental Shelf Oil and Gas Leasing Program. The approved program scheduled three Gulf of Mexico oil and gas lease sales over the five years of the program. Healthy Gulf v. U.S. Department of the Interior, No. 24-1024 (D.C. Cir., filed Feb. 12, 2024); American Petroleum Institute v. Department of the Interior, No. 24-1023 (D.C. Cir., filed Feb. 12, 2024)
Lawsuit Said Forest Service Violated NEPA by Failing to Consider Annual âTimber Targetsâ Impact on Carbon Storage
A lawsuit filed in federal district court in the District of Columbia challenged the U.S. Forest Serviceâs alleged failure to account for the aggregate carbon effects of actions taken each year to fulfill annual âtimber targets,â which the plaintiffs described as âmandatory performance metricsâ that âdrive logging levels on the National Forest System.â The plaintiffsâtwo environmental groups and a resident of Missouriâalleged that the failure to consider the impacts of national, regional, and unit-specific timber targets violated the National Environmental Policy Act (NEPA). They also alleged that project-level analyses for projects in Sumter National Forest, Nantahala National Forest, and Mark Twain National Forest violated NEPA and asked the court to enjoin the Forest Service from proceeding with the remaining commercial timber-harvest portions of these projects until it complies with NEPA. They also requested that the court enjoin the Forest Service from offering additional timber sales to fulfill fiscal year 2024 timber targets for Regions 8 and 9. The complaint alleged that failure to consider cumulative carbon emissions disproportionately affects forests in the East and the South because the volumetric timber targets incentivized logging in the most carbon-dense forests. Chattooga Conservancy v. U.S. Department of Agriculture, No. 1:24-cv-00518 (D.D.C., filed Feb. 26, 2024)
Environmental Groups Challenged Logging Projects in Wildfire Areas in California
Sierra Club and two other environmental organizations challenged the U.S. Forest Serviceâs authorizations of two logging and vegetation management projects in the footprints of two recent fires in the Giant Sequoia National Monument and the Sequoia National Forest. The complaint alleged that, contrary to the Forest Serviceâs assertion, these projectsâ proposed removal of trees from thousands of acres was ânot clearly needed for ecological restoration and maintenance.â The plaintiffs contended that environmental impact statements should have been prepared and that the analyses in the environmental assessments and findings of no significant impact were insufficient, including because they failed to adequately consider impacts on carbon storage. They also asserted that the Forest Service failed to comply with the National Forest Management Act. Sierra Club v. U.S. Forest Service, No. 3:24-cv-01080 (N.D. Cal., filed Feb. 22, 2024)
Lawsuit Challenged Failure to Protect Climate Change-Threatened Crayfish Under Endangered Species Act
Center for Biological Diversity filed a lawsuit in the federal district court for the District of Columbia challenging the U.S. Fish and Wildlife Serviceâs (FWSâs) decision not to list the Black Creek crayfish as endangered or threatened under the Endangered Species Act. The complaint alleged that the Black Creek crayfish, which lives only in the Lower St. Johns River Basin in northeastern Florida, is âamong the most threatened aquatic invertebrates in the southeastern United Statesâ and is âhighly imperiledâ due to threats including impacts of climate change such as sea level rise and severe weather events. The complaint said the FWS âdiscounted the threat of climate change-induced weather eventsâ despite finding that climate change had already increased water temperatures in streams to temperatures surpassing the crayfishâs temperature tolerances. Center for Biological Diversity v. U.S. Fish & Wildlife Service, No. 1:24-cv-00457 (D.D.C., filed Feb. 16, 2024)
Federal Lawsuit Challenged Adoption of Changes to Tahoe Regional Plan
A lawsuit filed in the federal district court for the Eastern District of California challenged the Tahoe Regional Planning Agencyâs (TRPAâs) adoption of amendments to the Regional Plan and TRPA Code of Ordinances that the plaintiff alleged would accelerate high-density development with potentially significant impacts that had not been fully evaluated. The plaintiff asserted that TRPA failed to comply with the Tahoe Regional Planning Compact, the Regional Plan, and related regulations, including by failing to prepare a supplemental environmental impact statement (EIS) to consider âsubstantial changes in the circumstances and underlying scientific data regarding the Tahoe Basin environmentâ since an EIS was approved in 2012 for a Regional Plan Update. Those changes included âclimate change and increased wildfire risk and attendant impacts to water temperature and quality, air pollution, and public safety.â Mountain Area Preservation Foundation v. Tahoe Regional Planning Agency, No. 2:24-cv-00441 (E.D. Cal., filed Feb. 9, 2024)
Montana Coal Mine Owner Asked Federal Court to Set Schedule for NEPA Review
A company that owns and operates an underground coal mine in Montana filed a lawsuit against federal defendants alleging that they had failed to act within NEPAâs statutory and regulatory deadlines to complete an EIS for a mining plan for federal coal in a third amendment to the companyâs mining permit. The Office of Surface Mining Reclamation and Enforcement (OSMRE) determined in 2022 that an EIS would be required after the Ninth Circuit ruled in an earlier case that OSMRE had not adequately explained in an environmental assessment why it determined that the climate impacts of a 2018 mining plan would not be significant. The company alleged that OSMRE now projected that it will not complete the EIS until three and a half years after determining an EIS was required (past the two-year statutory deadline). The company alleged that the delay has caused substantial disruption to its operations and asked the court to set a schedule and deadline for OSMRE to act in compliance with the NEPA deadline. Signal Peak Energy, LLC v. Haaland, No. 1:24-cv-00366 (D.D.C., filed Feb. 7, 2024)
FOIA Lawsuit Sought to Compel Disclosure of Agency Records Regarding Approval of âClimate Friendlyâ Label for Beef Products
Environmental Working Group (EWG) filed a Freedom of Information Act (FOIA) lawsuit to compel disclosure of Food Safety and Inspection Service (FSIS) records concerning the decision to allow Tyson Foods, Inc., âone of the largest beef producers in the United States,â to market âindustrially producedâ beef as âclimate friendly.â The complaint alleged that the failure to release documents âdeprives consumers of information urgently needed to assess Tysonâs climate claimsâand the governmentâs goal in approving them.â EWG alleged that FSIS had produced reports that redacted all information concerning greenhouse gas emissions in Tysonâs supply chain, all instances in which Tyson presented or applied its greenhouse gas emissions accounting methodology, and all explanations concerning Tysonâs ability to achieve greenhouse gas emissions reductions. FSIS cited FOIAâs exemption for protecting âcommercial or financial information obtained from a person that is privileged or confidentialâ as the basis for these redactions. EWG asserted that the defendants failed to meet their burden of establishing that the exemption applied. Environmental Working Group v. Food Safety & Inspection Service, No. 1:23-cv-03806 (D.D.C., filed Dec. 22, 2023)
Colorado Landowners Filed Class Action to Hold Defendants Liable for Abandonment of Oil and Gas Wells
A class action complaint filed in Colorado District Court by Colorado landowners alleged that the defendants âconspired to avoid millions of dollars of oil and gas well asset retirement obligations by fraudulently transferring hundreds of defunct and uneconomic oil and gas wells to a shell company, which then filed bankruptcy.â The plaintiffs sought to hold the defendants accountable for obligations to plug the wells on the plaintiffsâ properties and reclaim and remediate surface properties. They also sought to hold the defendants liable for âongoing torts committed daily by virtue of the unplugged, defunct oil and gas wells and related equipmentâ left on the plaintiffsâ land. Among the alleged harms of unplugged wells were methane emissions. The complaint asserted claims of trespass, violation of the Colorado Uniform Fraudulent Transfer Act, civil conspiracy to commit trespass, civil conspiracy to commit fraudulent transfer, unjust enrichment, aiding and abetting trespass, and negligence. McCormick v. HRM Resources, LLC, No. 2024CV30302 (Colo. Dist. Ct., filed Feb. 22, 2024)
HERE ARE RECENT ADDITIONS TO THE GLOBAL CLIMATE LITIGATION CHART
FEATURED CASE
New Zealand: MÄori Leaderâs Suit Against Seven Largest Greenhouse Gas Emitters Allowed to Go to Trial
Michael Smith brought tort claims against New Zealandâs seven largest greenhouse gas (GHG) emitters, collectively responsible for one-third of all New Zealandâs GHGs. He argued their activities amount to torts of public nuisance, negligence, and a novel climate duty. Smith further argued that these emissions affect him personally. As a MÄori leader with an interest in customary land, Smith argued that the defendantsâ actions would harm him through impacts related to rising sea levels, loss of sites of cultural and spiritual significance, damage to fisheries, and adverse health impacts. Smith asked the Court to issue declarations against the defendants, and to require them to reduce emissions. Notably, Smith did not seek damages.
Two of Smithâs arguments were struck out by the trial court, though the third claimâthe novel climate dutyâwas allowed to go to trial. New Zealandâs Court of Appeal, however, struck out all three claims, meaning that Smith would not receive his day in court. In this most recent ruling, the Supreme Court unanimously reversed that decision. All three of Smithâs claims will now proceed to what may be the first full climate tort claim in a common law jurisdiction.
In February 2024, the Supreme Court released its strike out decision. Rather than ruling on the merits of Smithâs argument, the Court considered whether the claims should be struck out before they even reached trial. Under New Zealand law, such arguments should be struck out only if they âdisclose[] no reasonably arguable cause of action.â This is a high threshold, and surviving a strike out challenge is no guarantee of success at trial. The decision ultimately concerns whether Smithâs main claim in public nuisance amounts to a âreasonably arguable cause of action.â The Court clarified that a person is liable in public nuisance where they either (a) do an act not warranted by law, or (b) omit to discharge a legal duty; and further, where âthe effect of the action or omission is to endanger the life, health, property or comfort of the public or to obstruct the public in the exercise or enjoyment of rights common to all Her Majestyâs subjects.â In other words, a public nuisance is something that endangers public interests or public rights.
First, the Court analyzed whether Smith had plausibly identified public rights that were being interfered with. The Court found that he hadâthe impacts of climate change would indeed engage rights that fit within the categories identified in existing case law. Secondly, the Court affirmed the appellate courtâs finding that public nuisance need not involve otherwise illegal activity. In other words, the fact that the defendantsâ GHG emissions were not illegal was not a basis for striking out the claim. Third, the court considered the âspecial damageâ rule. This is a standing rule which requires that public nuisance claims only be brought by plaintiffs who are harmed in a way that is different from the general public. The Court queried whether this rule should remain part of the law; and even if it did, Smithâs material and cultural interests as a MÄori coastal landowner were at least plausibly âspecialâ enough to meet the ruleâs requirements.
Finally, the Court considered causation. Demonstrating a specific causal chain between a defendantâs emissions and the plaintiffâs harm is extremely challenging. No single emitter is the cause of any personâs harm. Instead, any emitterâs GHG emissions mix with the emissions of millions of others, contributing to a global problem. How does one differentiate the defendantsâ actions from those of any other, particularly given New Zealandâs globally small (though per capita large) contribution to GHG emissions?
The Court found that Smith had done enough for these questions to proceed to trial. Notably, the Supreme Court found that the causation problems presented by Smithâs claims were fundamentally similar to other public nuisances involving multiple contributors, such as Industrial Revolution-era air and water pollution cases. âClimate change,â the Court concluded, âengages comparable complexities, albeit at a quantum leap scale of enlargement.â âCumulative causationâ problems climate change presents should at least receive âevidence and policy analysis.â They should proceed to a full trial: âthe common law must develop, if at all, in the fertile fields of trial, not on the barren rocks of a strike out application.â
Having found that Smith had done enough to show a reasonable public nuisance case, the Court permitted the two remaining causes of actionânegligence and the proposed novel dutyâto also progress to trial. The Court also rejected arguments that the common law claims were displaced by New Zealandâs statutory regime for climate torts. (Smith v. Fonterra, High Court of New Zealand, New Zealand)
DECISIONS & SETTLEMENTS
United Kingdom: Court Allowed Oil and Gas Exploration to Go Forward Despite Concerns from Local Government
In June 2022, the UK government granted an exploratory planning permission for UK Oil & Gas to explore for oil and gas near the village of Dunsfold in Surrey, close to an Area of Outstanding Natural Beauty (AONB). This came after Surrey County Council had refused the scheme, with the government thereby overturning the Councilâs decision. The claimants are now challenging the governmentâs decision to grant the planning permission. In July 2023, the High Court dismissed the challenge. On January 9, 2024, it was reported that the Court of Appeal had refused the claimants permission to appeal, bringing their challenge to an end. (Protect Dunsfold Ltd v Secretary of State for Levelling Up, Housing and Communities; Waverley Borough Council v SSLUHC, High Court of Justice, United Kingdom)
United Kingdom: Court Rejected Claim that Oil and Gas Company Needed to Make Financial Disclosures About Climate-Related Risks
Ithaca Energy PLC is one of the largest independent oil and gas producers in the UK North Sea, with assets including the Cambo and Rosebank fields. In 2022, it sought and was ultimately granted listing on the London Stock Exchange. As part of that process, Ithaca submitted a âprospectusâ for approval by the Financial Conduct Authority (FCA), the UKâs financial regulator. The FCA may only approve a prospectus if it satisfies the requirements of European Union Regulation 2017/1129. This Regulation remains UK law post-Brexit by virtue of Part 6 of the Financial Services and Markets Act 2000. The Regulation, aimed at investor protection, requires companies to disclose certain specific and material risks they face. The FCA approved Ithacaâs prospectus. In February 2023, ClientEarth filed a claim arguing that the FCA acted unlawfully by approving the prospectus because the prospectus failed to describe climate change-related risks adequately.
In May 2023, the High Court refused permission for the claim to proceed to trial. It made this decision âon the papers.â ClientEarth renewed its application, resulting in a permission hearing. In December 2023, following that hearing, the High Court gave judgment. While delay in bringing the claim was not a good reason for refusing permission (judgment paragraphs 4 to 6), and while ClientEarth had standing (paragraph 7), the grounds were not arguable so permission was denied.
The FCA had not arguably breached the Regulation. The approval of the prospectus could only be challenged on public law grounds. The Regulationâs requirements were not hard-edged, and determining whether they were met required evaluative judgment, which the court would only interfere with if irrational. Here, the FCAâs interpretation of the Regulation was plainly correct. While the Regulation required disclosure of those risk factors that were material, it did not require the issuer to disclose its assessment of risk and materiality/specificity. The prospectus plainly did address risks to Ithacaâs business and securities arising out of climate change factors, associated regulatory measures and changes in consumer use. The FCA considered that the risk factors were adequately described, and there was no arguable error in that decision. (Paragraphs 16 to 26).
Nor was it arguably irrational for the FCA to have concluded, pursuant to the Regulation, that the prospectus contained the necessary information material to an investor for making an informed assessment of Ithacaâs financial position and prospects. ClientEarth, relying on FCA guidance on climate change and other ESG-related matters, argued the prospectus did not adequately deal with the potential impacts of the Paris Agreement on Ithacaâs business, were it to be fully implemented. The court held, however, that this ground had ânot come closeâ to demonstrating that the FCA had acted irrationally. (Paragraphs 27 to 29.)
The court also held that the claim was not caught by the Aarhus Convention. The relevant provisions of the Act and the Regulations were not provisions of national law related to the environment. As to the nature of the contraventions alleged, there was not a sufficiently close connection to the environmental factors regulated by the Aarhus Convention, and even if the claim succeeded, it would not have significant environmental benefit. ClientEarth did not, therefore, benefit from the limits on costs recoverable between parties in Aarhus claims. (Paragraphs 30 to 47.) (ClientEarth v. Financial Conduct Authority (Ithaca Energy plc listing on London Stock Exchange), High Court of Justice, United Kingdom)
Turkey: Climate Change Activistsâ Suit Regarding Climate Inaction Rejected
Three young climate activists in Turkey brought a new case to the Council of State on May 8, 2023. Turkey submitted the countryâs âUpdated First NDCâ to the UNFCCC Secretariat on April 13, 2023. The NDC states that âTurkey confirms to reduce its greenhouse gas (GHG) emissions by 41% through 2030 (695 Mt CO2 eq in year 2030) compared to the Business as Usual (BAU) scenario given in Turkeyâs first NDC (also INDC) considering 2012 as the base year (reference year). Turkeyâs updated first NDC is economy-wide and includes comprehensive mitigation and adaptation actions as well as consideration of means of implementation. Turkey intends to peak its emissions at the latest in the year 2038.â
Alleging that these goals are not sufficient, the Claimants applied to the Council of State and filed a lawsuit against President Recep Tayyip ErdoÄan and the Ministry of Environment, Urbanization and Climate Change, requesting the annulment of the NDC. The Claimants asserted that the updated NDC submitted by Turkey is âclimate inaction rather than climate action.â Underlining the lack of a transparent process in the preparation of the NDC, they demanded the annulment and renewal of Turkeyâs unscientific, ineffective, and inadequate climate target.
Declaring that holding climate change at 1.5 degrees is a human right, the Claimants state that Turkeyâs decision to increase greenhouse gas emissions, which is incompatible with the Paris Climate Agreementâs goal of holding climate change at 1.5 degrees, violates their human rights. The progress of the climate crisis violates the right to live, the right to intergenerational equality, the right to health, the right to live in a healthy and balanced environment, and many others which were protected by the Turkish Constitution, the United Nations Convention on the Rights of the Child, and the European Convention on Human Rights.
The case was rejected by the Council of State without examination. The high court of the Council of State did not notice the Presidency or the Ministry and did not ask for an answer about the claims in the case.
The cause for rejection was stated as follows: âThe NDC, which was the subject of the claim, is a document concerning the commitments which were included in the Paris Climate Agreement and is a part and within the scope of the agreement. The NDC, alone, does not affect the national legal order. Itâs only within the extent of a declaration of a pledge to prepare national legal regulations and therefore is not an administrative action. Consequently, it canât be made a subject to an annulment of an administrative action case.â (A.S. & S.A. & E.N.B v. Presidency of TĂŒrkiye & The Ministry of Environment, Urbanization and Climate Change, Council of State, Turkey)
Brazil: Court Denied Injunction in Groupsâ Challenge to Auction of Oil Exploration Blocks on Indigenous Land
On December 12, 2023, the NGO Instituto Arayara de Educação e Cultura para a Sustentabilidade, the Articulation of Indigenous Peoples of Brazil (APIB) and the Rio dos Pardos Indigenous Land Kupli Village filed a public civil action (environmental class-action) against the National Agency for Petroleum, Natural Gas and Biofuels (ANP), Brazilâs Federal Environment Agency (IBAMA), and the Federal Government. This lawsuit is part of a set of six environmental class-actions filed against the 4th Bid Cycle for oil exploration blocks. The aim is to challenge the auction of oil exploration blocks held through the 4th Cycle. The plaintiffs argue that the inclusion of a set of blocks located in the ParanĂĄ and Amazonas Basins is illegal, as they overlap with areas of influence or restriction of 23 indigenous lands, and there was no prior, free, and informed consultation process. They claim this is a case of environmental racism, since the proximity of the exploration blocks to indigenous lands poses risks to health, the environment, and the use of the territory by the peoples who live there. They state that the climate crisis scenario requires an energy transition towards clean energies and a reduction in GHG emissions, which is incompatible with the expansion of oil exploration. Furthermore, they affirm that indigenous lands are essential for combating this crisis, as they are barriers against deforestation and forest degradation and their inhabitants are the main guardians of the environment. As a preliminary injunction, the plaintiffs requested the suspension of the offer of the contested exploration blocks in the 4th Bid Cycle, until the protection of indigenous rights is observed. On a definitive basis, they request that the contested blocks be excluded from the Bid Cycle until the affected indigenous rights are consulted.
On December 19, 2023, the court rejected the request for an injunction and partially rejected the initial petition regarding the blocks located in the ParanĂĄ Basin, as it considered that they did not fall within its jurisdiction. The court ruled that there was no longer any procedural interest in challenging some of the exploration blocks since, when the auction took place, only two blocks (AM-T-107 and AM-T-133) were auctioned off, and the proceedings should continue only in relation to them. Also, Atem ParticipaçÔes S.A. was included as a necessary co-litigant, as it was the bidder for the exploration blocks. This preliminary injunction does not mention climate change. (Instituto Arayara, APIB and Rio dos Pardos Indigenous Land Kupli Village vs. ANP, IBAMA, Federal Government and others, Amazonasâs Federal Court, Brazil)
Colombia: Constitutional Court Admits Lawsuit Calling for Climate Change and Human Rights Protections to Environmental Impact Assessments
On July 24, 2023, a group of citizen members of two NGOs (Dejusticia and Ilex AcciĂłn JurĂdica) filed a lawsuit against article 57 of Law 99 of 1993. The article establishes the definition and criteria of environmental impact assessments (EIAs) in Colombia, which includes biotic, abiotic, and socioeconomic elements. Plaintiffs argue that as it stands, this norm does not abide by the constitutional and international human rights standards, given the lack of consideration of climate change and human rights. Plaintiffs assert that even though climate change-related standards only appeared after the law was issued, failing to update the interpretation of this legal provision derives from unconstitutional restrictions and interpretation issues that prevent EIAs from complying with international commitments that have been ratified by Colombia and are part of the constitutional bloc.
The plaintiffs are not asking the Court to declare the unconstitutionality of the article since this would create a legal vacuum that could eventually result in more significant violations of constitutional rights. Instead, plaintiffs ask the Court to order that the provision should be interpreted as to include climate change and human rights protection as part of the criteria to be considered when conducting an EIA. In so doing, the legal provision is updated to comply with the currently admissible constitutional standard, while its interpretation is clarified, avoiding unconstitutional applications.
The plaintiffsâ arguments are twofold. First, article 57 violates articles 2, 79, 80, and 93.1 of the Colombian Constitution and articles 1.1 and 2 of the American Convention on Human Rights by failing to include impacts associated with climate change in the EIA criteria. Second, article 57 violates articles 7, 20, 74, 79, 80, and 334 of the Colombian Constitution, as well as articles 4.1, 5.1, and 13 of the American Convention on Human Rights, by failing to include human rights violations in the EIA criteria. Plaintiffs claim that human rights and the environment are interconnected, which should be reflected in the laws governing EIAs.
On January 12, 2024, the Constitutional Court declared the admissibility of the lawsuit, but only regarding the first argument supported in the alleged violation of articles 79 and 80 of the Colombian Constitution. The arguments related to the violation of the legal provisions of the American Convention on Human Rights were dismissed. The Court also ordered several governmental authorities, including the Ministry of Environment and Sustainable Development, as well as NGOs such as Greenpeace Colombia, the Colombian Association of Oil and Gas, and others to provide written comments on the impacts of climate change in the interpretation of the right to a healthy environment and article 57 of Law 99 of 1993. (Challenging Environmental Impact Assessment law for failing to consider climate change, Constitutional Court, Colombia)