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Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts.  If you know of any cases we have missed, please email us at columbiaclimate@gmail.com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 111.

FEATURED CASE

California Federal Court Dismissed Oakland and San Francisco’s Climate Change Nuisance Lawsuits

On June 25, 2018, the federal district court for the Northern District of California dismissed the public nuisance lawsuits brought by Oakland and San Francisco seeking to hold five fossil fuel companies liable for climate change harms. The court—which previously ruled that any nuisance claim necessarily would arise under federal, not state, common law—rejected the cities’ attempt to differentiate their federal nuisance claims from claims based on greenhouse gas emissions previously found to be displaced by the Clean Air Act by the Supreme Court (in American Electric Power Co. v. Connecticut (AEP)) and Ninth Circuit (in Native Village of Kivalina v. ExxonMobil Corp. (Kivalina)). The district court held that AEP and Kivalina’s displacement rule would apply to the cities’ claims even though the claims were based not on the defendants’ own greenhouse gas emissions but on their  sales of fossil fuels to other parties that will eventually burn the fuels. The district court stated: “If an oil producer cannot be sued under the federal common law for their own emissions, a fortiori they cannot be sued for someone else’s.” The district court said the other distinction offered by the plaintiffs to differentiate their claims from those found to be displaced in AEPand Kivalina—that the defendants’ actions and the resulting emissions occurred outside the U.S.—placed the cities’ claims outside the proper reach of the courts. The court said that while the Clean Air Act did not reach foreign emissions and thus would not necessarily displace plaintiffs’ claims, such nuisance claims were “foreclosed by the need for federal courts to defer to the legislative and executive branches when it comes to such international problems.” The court stated: “This order fully accepts the vast scientific consensus that the combustion of fossil fuels has materially increased atmospheric carbon dioxide levels, which in turn has increased the median temperature of the planet and accelerated sea level rise. But questions of how to appropriately balance these worldwide negatives against the worldwide positives of the energy itself, and of how to allocate the pluses and minuses among the nations of the world, demand the expertise of our environmental agencies, our diplomats, our Executive, and at least the Senate. Nuisance suits in various United States judicial districts regarding conduct worldwide are far less likely to solve the problem and, indeed, could interfere with reaching a worldwide consensus.”  In short, the court stated, “[t]he problem deserves a solution on a more vast scale than can be supplied by a district judge or jury in a public nuisance case.”

The district court issued its order dismissing the cases after three of the defendants and the plaintiffs reached agreements to avoid the jurisdictional discovery ordered by the court in May. After dismissing the cases, the court issued a request that the parties submit a joint statement regarding whether it was still necessary to address the recently narrowed personal jurisdiction motions to dismiss. The court said it remained willing to decide the personal jurisdiction issue but that counsel might prefer to postpone such a ruling until after appellate review of the dismissal and no-remand orders. City of Oakland v. BP p.l.c., No. 3:17-cv-06011 (N.D. Cal. June 25, 2018).


DECISIONS AND SETTLEMENTS

D.C. Circuit Said NEPA Did Not Require Updated Review of Coal Leasing Program

The D.C. Circuit Court of Appeals affirmed dismissal of a lawsuit seeking to compel an update of the programmatic environmental impact statement (PEIS) for the federal coal leasing program. The U.S. Bureau of Land Management (BLM) completed the PEIS in 1979; plaintiffs argued that BLM was required to update the environmental review due to the availability of tens of thousands of scientific studies on climate change and coal combustion’s contributions to climate change. The D.C. Circuit held that the National Environmental Policy Act (NEPA) did not require BLM to update the environmental review because the relevant “major Federal action” (establishment of the federal coal program) was completed in 1979 and no new action had been proposed. The D.C. Circuit said the plaintiffs raised “a compelling argument” that BLM “should now revisit the issue” of climate change and “adopt a new program or supplement its PEIS analysis,” but concluded that the plaintiffs would have to pursue other avenues to raise this claim—either via a rulemaking petition or through challenges to specific licensing decisions (which “might challenge any attempt by BLM to rely on (or tier to) the 1979 PEIS on the ground that it is too outdated to support new federal action”). The D.C. Circuit also rejected the plaintiffs’ contention that statements in the 1979 regulatory materials created an obligation for BLM to update the PEIS even if NEPA did not require it. The D.C. Circuit said that while the statements “might have created a binding duty … at one point,” BLM’s amendments to the coal leasing rules in 1982 freed it from any supplementation duty beyond that imposed by NEPA. Western Organization of Resource Councils v. Zinke, No. 15-5294 (D.C. Cir. June 19, 2018).

Second Circuit Issued Opinion with Rationale for Vacating Rule That Delayed Penalty Increases for Violations of CAFE Standards

The Second Circuit Court of Appeals issued an opinion explaining the rationale for its April 2018 order vacating a National Highway Traffic Safety Administration (NHTSA) rule that indefinitely delayed a previously published rule that increased civil penalties for noncompliance with Corporate Average Fuel Economy (CAFE) standards. The court found that the Federal Civil Penalties Inflation Adjustment Act Improvement Act of 2015 did not give NHTSA authority to indefinitely delay adjustments to civil penalties and that NHTSA did not otherwise have authority to suspend the penalty increase rule. The Second Circuit also held that NHTSA violated the Administrative Procedure Act by failing to follow notice-and-comment rulemaking procedures when it adopted the delay rule. As a threshold matter, the Second Circuit also concluded that both the state petitioners and the environmental petitioners had standing. The Second Circuit also rejected the argument that the proceedings were untimely, finding that under the applicable Energy Policy and Conservation Act judicial review provision, the time for filing petitions for review was triggered by publication in the Federal Register, not by NHTSA’s delivery of the agency action to the Office of the Federal Register. Natural Resources Defense Council v. National Highway Traffic Safety Administration, Nos. 17-2780, 17-2806 (2d Cir. June 29, 2018).

D.C. Circuit Continued Abeyance for Long-Pending Challenges to Clean Power Plan, But Three Judges Expressed Concerns About Prolonged Delay

On June 26, 2018, the D.C. Circuit Court of Appeals ordered that the proceedings challenging the Clean Power Plan remain in abeyance for 60 more days. Two judges wrote statements, both of which were joined by a third judge, indicating a disinclination to approve future abeyances. Judge Wilkins wrote that the petitioners challenging the Clean Power Plan and EPA had “hijacked” the court’s equitable powers for the purposes of maintaining the status quo while EPA decides the disposition of the Clean Power Plan. Judge Wilkins, joined by Judge Millett, said that if EPA or the petitioners wished to further delay operation of the Clean Power Plan, “then they should avail themselves of whatever authority Congress gave them to do so, rather than availing themselves of the Court’s authority under the guise of preserving jurisdiction over moribund petitions.” Judge Tatel, also joined by Judge Millett, wrote that “the untenable status quo derives in large part from petitioners’ and EPA’s treatment of the Supreme Court’s order staying implementation of the Clean Power Plan pending judicial resolution of petitioners’ legal challenges as indefinite license for EPA to delay compliance with its obligation under the Clean Air Act to regulate greenhouse gases.” Judge Tatel suggested that the parties had an obligation to advise the Supreme Court of the “circumstances as they stand today” so that the Court may “decide for itself whether the temporary stay it granted pending judicial assessment of the Clean Power Plan ought to continue now that it is being used to maintain the status quo pending agency action.” West Virginia v. EPA, Nos. 15-1363 et al. (D.C. Cir. June 26, 2018).

New Mexico Federal Court Ordered Analysis of Downstream Greenhouse Gas Emissions of Oil and Gas Leases

The federal district court for the District of New Mexico held that BLM failed to take a hard look at the greenhouse gas emissions and climate impacts of leases issued in 2015 for 13 parcels of federal mineral estate in the Santa Fe National Forest covering almost 20,000 acres. The court set aside the leases and remanded for additional review. The court rejected BLM’s argument that it was not required to consider downstream greenhouse gas emissions that would result from combustion of oil and gas produced from development of wells on the leased areas and the downstream emissions’ impact on climate change. The court said such impacts were required to be assessed as indirect impacts of the leases. In addition, the court said BLM must conduct a new cumulative impact analysis of greenhouse gas emissions due to the failure to consider downstream greenhouse gas emissions. The court also noted that the Intergovernmental Panel on Climate Change had updated its reports since BLM conducted its review as had the U.S. Global Change Research Program. The court said that on remand BLM should not rely on outdated scientific tools and analyses. Although the court was not persuaded by the plaintiffs’ attacks on BLM’s mitigation measure analysis, the court indicated that BLM might need to conduct a new mitigation analysis once it had calculated downstream greenhouse gas emissions and analyzed their impact. The court also found that BLM did not adequately address impacts of water use. San Juan Citizens Alliance v. U.S. Bureau of Land Management, No. 1:16-cv-00376 (D.N.M. June 14, 2018).

District Court Judge Affirmed Denial of Discovery Stay in Juliana Case; Dispositive Motions Pending

On June 29, 2018, Judge Aiken of the federal district court for the District of Oregon affirmed a magistrate judge’s denial of the federal government’s motion for a protective order and stay of all discovery in the young people’s lawsuit asserting violations of constitutional rights to a climate system capable of sustaining human life. Earlier in June, Judge Aiken denied the federal government’s motion to stay discovery pending the resolution of their objections. In this earlier order, the judge said the defendants had not clearly explained what irreparable harm they would suffer in the absence of a stay and also found that irreparable harm was not likely under the circumstances. The court also said the defendants’ concerns regarding the balance of hardships should be addressed with “specific objections to specific discovery requests, rather than by a blanket stay of all discovery.”

Several motions are pending before the court: the defendants’ motion for judgment on the pleadings (oral argument scheduled for July 18); the defendants’ motion for summary judgment (briefing to be completed by July 12); and the plaintiffs’ motion to defer consideration of the defendants’ motion for summary judgment until after the conclusion of discovery and in conjunction with trial (defendants’ opposition submitted on June 22). A narrower motion for a protective order also is still pending, but on June 27, the magistrate judge granted the plaintiffs’ unopposed motion to hold this motion in abeyance. The plaintiffs said an abeyance would permit the court to decide whether plaintiffs could seek judicial notice of documents requested in their Requests for Admission since those documents were largely public government records. The plaintiffs also indicated that the parties were working to reach agreement on substituting contention interrogatories for depositions. A status conference before the magistrate judge is scheduled for July 17, the day before the hearing on the motion for judgment on the pleadings.

On June 28, the plaintiffs filed their opposition to the motion for summary judgment. They supported their opposition with declarations by the 21 plaintiffs and by 18 experts, as well as with “hundreds of government records.” The plaintiffs also officially requested judicial notice of a number of government documents via a motion in limine. In their response opposing summary judgment, the plaintiffs said they had submitted sufficient evidence to establish Article III standing on summary judgment. They also countered the federal government’s argument that the Administrative Procedure Act provided the sole mechanism for review of their claims. In addition, the plaintiffs argued that their claims did not violate separation of powers principles. Finally, they argued that their claims did not fail as a matter of law—they pointed to evidence of material facts that the federal government disputed regarding the plaintiffs’ right to a climate system capable of sustaining human life; demonstrating the federal government put them in a position of danger in violation of the Fifth Amendment; and addressing their claim that the public trust doctrine applies to the federal government’s management of trust resources. The plaintiffs also contended that three of their Fifth Amendment claims were not at issue in the defendants’ motion: a substantive due process claim for government infringement of enumerated rights of life and property and already recognized implied rights such as rights to move freely, to family, and to personal security; a substantive due process and equal protection claim for systemic government discrimination with respect to plaintiffs’ exercise of their fundamental rights; and a substantive due process equal protection claim for government discrimination against plaintiffs as a class of children.

Other developments in the case include the U.S. solicitor general’s request for another extension of time within which it may file a petition for writ of certiorari for review of the Ninth Circuit’s denial of the U.S.’s petition for a writ of mandamus ordering dismissal of the case. The U.S. sought to extend the filing deadline from July 5 to August 6. Justice Kennedy granted an extension to August 4. Juliana v. United States, No. 6:15-cv-1517 (D. Or.).

Man Sentenced for Misuse of Funds Intended for Carbon Sequestration Study

The president and owner of a company that received federal funding for a carbon sequestration study was sentenced to 18 months in prison after he pleaded guilty to using the funds for personal use. He will also be on supervised release for three years after his release from prison and must pay a $50,000 fine and more than $2 million in restitution. United States v. Ruffatto, No. 2:16-cr-00167 (W.D. Pa. June 28, 2018).

Colorado Supreme Court Revived Challenge to Boulder Light and Power Utility

The Colorado Supreme Court ruled that the Public Service Company of Colorado’s (Xcel’s) lawsuit challenging a City of Boulder ordinance establishing a light and power utility was timely and viable. Xcel asserted that the ordinance violated the City Charter, which sets forth “metrics” that must be met for the City to have the authority to establish a utility. The Supreme Court did not weigh in on the merits of the case but directed that the case be returned to the district court for further proceedings on Xcel’s claim that the City did not satisfy the required metrics, which included a requirement of demonstrating that the utility could create a plan for reduced greenhouse gas emissions and other pollutants and increased renewable energy. City of Boulder v. Public Service Co. of Colorado, No. 16SC894 (Colo. June 18, 2018).

Delaware Court Dismissed Challenge to RGGI Regulations

A Delaware trial court dismissed an action challenging Delaware regulations implementing the Regional Greenhouse Gas Initiative and its carbon dioxide emissions trading program. The court ruled that the plaintiffs—individuals who alleged that the increased costs of carbon dioxide allowances would be reflected in their electricity bills—did not have standing because they had failed to establish any financial harm or that success in the lawsuit would result in lowering their electricity prices. The court stated: “Instead of seeking to correct an actual harm, plaintiffs are officiously meddling with Delaware’s RGGI Act.” Stevenson v. Delaware Department of Natural Resources & Environmental Control, No. S13C-12-025 RFS (Del. Super. Ct. June 26, 2018).

FERC Denied Rehearing of Natural Gas Pipeline Approval and Reasserted Limits on Consideration of Climate Impacts 

A divided Federal Energy Regulatory Commission (FERC) denied rehearing of its order authorizing construction and operation of the Mountain Valley Pipeline Project in West Virginia and Virginia and a related project that would connect to Pennsylvania. Among the arguments rejected by the majority of FERC commissioners were that FERC should have evaluated whether energy demands could be met with “non-transportation alternatives” such as energy conservation or renewable energy resources, that FERC failed to adequately analyze the climate change impacts of the end use of natural gas transported by the project, and that FERC’s consideration of climate change in the context of evaluating the public interest under Section 7 of the Natural Gas Act (NGA) was inadequate. The FERC majority said greenhouse gas emissions from the downstream use of natural gas did not fall within the definition of indirect impacts or cumulative impacts, and also concluded that the Social Cost of Carbon tool could not meaningfully inform decisions on natural gas transportation infrastructure projects under the NGA. FERC said it continued to believe the Social Cost of Carbon tool was “more appropriately used by regulators whose responsibilities are tied more directly to fossil fuel production or consumption.” Two commissioners wrote dissents, both of which were critical of FERC’s decisions to restrict its consideration of projects’ impacts on climate change. In re Mountain Valley Pipeline, LLC, No. CP 16-10-001 (FERC June 15, 2018).

California Public Utilities Commission Denied Application for New Gas Pipeline for Failure to Demonstrate Need

On June 26, 2018, the California Public Utilities Commission issued its final decision denying a certificate of public convenience and necessity for a new 47-mile natural gas pipeline to replace an existing pipeline. The proposed decision found that the applicants had failed to demonstrate a need for the project and had not shown “why it is necessary to build a very costly pipeline to substantially increase gas pipeline capacity in an era of declining demand and at a time when the state of California is moving away from fossil fuels.” The decision indicated that based on Commission precedent, the Commission could deny a proposed gas pipeline or transmission project based on insufficient need without completed CEQA analysis. The Commission directed that the preparation of a draft environmental impact report be halted. In re San Diego Gas & Electric Co., No. A1509013 (Cal. PUC June 26, 2018).

NEW CASES, MOTIONS, AND NOTICES

NRDC and Chemical Manufacturers Sought Supreme Court Review of Decision That Struck Down HFC Replacement Rule

Two petitions for writ of certiorari were filed in the Supreme Court seeking review of the D.C. Circuit decision striking down key components of the U.S. Environmental Protection Agency (EPA) final rule prohibiting or restricting use of certain hydrofluorocarbons (HFCs) as replacements for ozone-depleting substances due to the HFCs’ high global warming potential. Both petitions were filed by parties that had intervened to defend the rule in the D.C. Circuit. One petition—filed by two chemical manufacturers that said they and their suppliers had invested more than $1 billion in creating and commercializing safer replacements for ozone-depleting substances—presented the question of whether EPA lacked authority under Section 612 of the Clean Air Act, which created the “safe alternatives policy,” to prohibit use of a less-safe substitute for an ozone-depleting substance in favor of a safer alternative “just because a company has already begun using the less-safe substitute.” The companies argued that the D.C. Circuit’s interpretation was incorrect and that the decision “eviscerated” an “immensely consequential” and “extremely effective” federal program, upended the investment-backed expectations of companies such as the petitioners, and harmed the environment. The second petition was filed by Natural Resources Defense Council (NRDC). NRDC’s petition presented the question of “[w]hether EPA has authority under Section 612 to prohibit use of dangerous but non-ozone-depleting substitutes by any person, including by product manufacturers who began using such substitutes before EPA placed them on the prohibited list.” NRDC also argued that the D.C. Circuit majority’s interpretation was at odds with the statute and destroyed a “core Clean Air Act program.” Honeywell International Inc. v. Mexichem Fluor, Inc., No. 17-1703 (U.S. June 25, 2018); Natural Resources Defense Council v. Mexichem Fluor, Inc., No. 18-2 (U.S. June 25, 2018).

States and NRDC Filed Lawsuits Challenging EPA Decision to Suspend Enforcement of..

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by Jessica Wentz

On October 9, 2017, the Tubbs Fire ripped through Sonoma County, California, destroying nearly 5,000 homes and killing 22 people. It was the most destructive wildfire in California’s history and the largest urban conflagration in the United States since the 1906 San Francisco earthquake fires. And it was only one of approximately 250 wildfires that sparked that same night in Northern California, causing a total of 44 fatalities and more than $9.4 billion in economic damages.

Now, nine months later, the process of reconstruction has begun. Some of the first homes have gone up on burned lots. Many of these lots are located in the “wildland-urban interface” – rural, forested areas on the outskirts of cities that are much more prone to wildfires. Commenters have questioned the prudency of rebuilding in these areas in light of existing fire hazard and predictions of how the warming climate will fuel more frequent and severe wildfires in the western United States.  But there are social and economic factors which are driving reconstruction despite the risk – specifically, the emotional attachment of many property owners to the place they call “home” and the fact that property values in the areas remain extremely high (with some lots listed at over $1,000,000).

     Construction begins on a house in Coffee Park (credit: Chad Surmick / Press Democrat)

The availability of insurance is a critical factor for rebuilding. But many areas prone to wildfire are becoming too risky to insure. As noted in a 2017 report from the California Department of Insurance, premiums and wildfire surcharges have increased significantly in the wildland-urban interface, and several major insurers have stopped writing new policies and renewing plans in areas with high wildfire risk. As insurers begin to account for climate change in their wildfire risk models, they will likely become even less willing to issue and renew policies in these areas.

At this time, insurance is still available to property owners who are rebuilding their homes in the aftermath of the fires. This may be due, in large part, to a California law which prohibits insurance companies from cancelling a policy while a primary residence is being reconstructed after a covered disaster, and requires them to renew the policy at least once following a total loss caused by a disaster (Cal. INS § 675.1). The law provides short-term protection for property owners affected by the fires, but it does not guarantee that insurance will be available in the long run. Most homeowners’ insurance policies are written for a term of only 12 months, and there are no laws in California which prohibit an insurer from refusing to renew a homeowner’s policy (apart from the one exception noted above). The bottom line is that thousands of homes may be reconstructed due to the short-term availability of insurance, only to become uninsurable in the near future.

When private insurance becomes unavailable, there is still a fall back option: a state-sponsored program called the California FAIR plan. This program is already considered a “last resort” insurance option due to high premiums and coverage limits. As more property owners in high risk areas enroll in the plan, state regulators will likely need to increase rates to reflect risk exposure and reduce coverage limits to keep the program actuarily sound (as required by Cal INS § 10100.2). Ultimately, relying on the California FAIR plan as the primary insurer of homes in high risk areas may prove a losing proposition for the state – and recognizing this, the California Department of Insurance’s 2017 report outlines different legal approaches for maintaining private coverage in these areas, which include:

  • Prohibiting insurance companies from cancelling or non-renewing a policy that has been in effect for a certain time period unless a strict rescission standard is met.
  • Requiring that insurance companies obtain approval from the state insurance commissioner before they can materially reduce the volume of policies in a given area.
  • Requiring insurance companies to provide mitigation discounts and continued coverage to homeowners who make investments in hardening their home.

All three approaches would require legislative action from the state of California.

The problem with these types of approaches is that they do not address the underlying problem – that in some areas, wildfire risk may become so high that it does not make fiscal sense to construct and insure a home. Consider the region affected by the Tubbs Fire in Sonoma County. As illustrated on the map below, the Tubbs Fire followed almost exactly the same path as the 1964 Hanly Fire, which occurred under very similar circumstances: extremely hot, dry winds caused the fire to move rapidly westward. With two similar fires just 50 years apart, one might surmise that the risk of annual fire in this particular corridor is approximately 2% and that risk may grow due to factors such as climate change and the expansion of electrical infrastructure.

To put this into perspective: if an insurance company’s models determined that an area did in fact have a 2% annual risk of fire, then the company would need to charge a premium of at least 2% of the total policy coverage (e.g., $20,000 per year for a $1,000,000 home) and that doesn’t account for other risks, such as earthquakes or flooding. If annual wildfire risk were to increase to 5% or 10%, the premiums would soon become unaffordable.

The Tubbs/Hanley corridor is not unique. Wildfire risk is prevalent across large swaths of the Western U.S., and research shows that the severity and frequency of western wildfires is increasing and will likely continue to increase as the climate warms.

Climate change likely contributed to the severity of the Northern California wildfires in October. There are three specific ways in which climate change may have played a role. First, there was an unusually wet winter, which lead to the rapid growth of vegetation (fuel for the fire).

Second, there was an unusually long, hot and dry summer, which dried out all of that vegetation. As depicted below on the chart below, this is part of a long-term trend.

Sonoma County – which was hit hardest by the fires – experienced a particularly sharp decline in rainfall between winter and summer (the red line on the chart below shows how 2017 compares to previous years).Third and finally, there were unusually strong “Diablo” winds the night of the fire which caused its rapid spread. Wind gusts reached nearly 80 mph shortly after the fire ignited. Research has linked increases in the frequency and severity of these winds to climate change.

To make fire-prone areas insurable (and livable), we need to address the underlying fire risk. Certainly, climate change is a significant contributor to wildfire risk and we need to quickly reduce global greenhouse gas emissions to mitigate that contribution. But there are also more local actions that can be done to reduce wildfire risk and make communities and natural landscapes more resilient in the context of a changing climate. These include:

  • Putting electrical infrastructure underground so that it does not spark fires (PG&E’s power lines have already been identified as the cause of many of the Northern California wildfires)
  • Vegetation management programs aimed at reducing fuels as well as restoring forest health, removing non-native species, and creating favorable conditions for the propagation of fire-adapted species such as oak trees and redwoods.
  • Building fire-hardened homes that are less likely to ignite in the event of a wildfire.
  • Building fire breaks to prevent the spread of fires.

In addition to fire prevention and risk mitigation measures, it will also likely be necessary to provide additional resources for fighting fires. The limitations of existing resources were evident the night of the Tubbs fire:  there was no effort to halt the initial spread of the fire because many fire crews had been sent to fires that had broken out earlier in the evening, and those that remained were busy getting people out of harm’s way.

All of these measures will be expensive, which raises the question of who should foot the bill. It makes sense for those living in the wildland urban interface to pay additional fees to invest in fire prevention and preparedness. Such fees have been unpopular in the past, but residents may be more willing to pay if it will help them maintain insurance coverage.  There are also some costs that could be distributed more broadly among segments of society – for example, fire prevention on public lands, and the cost of undergrounding electric transmission infrastructure that serves urban populations. And if fossil fuel companies are found liable for damages associated with climate change, then local governments may be able to recover some funding for fire-related adaptation measures from those companies. But ultimately, if people want to continue to live in fire-prone areas, they should be prepared to pay more to address wildfire risk (whether through insurance premiums, fire fees, or direct costs associated with hardening homes and removing vegetation).

Going forward, state regulators and local governments should consider how they might align policy goals pertaining to fire risk reduction and insurance availability. For example, regulators could work with insurance companies to create a program whereby insurance is available to homeowners in fire-prone areas if certain criteria are met (e.g., the house is constructed to meet fire-hardening standards, there is a defensible space on the property, and the homeowner pays a fire fee for vegetation management).  The 2017 report from the California Department of Insurance touches on some policy and legislative approaches, but there is ample room for more discussion and policy innovation in this field.

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Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts.  If you know of any cases we have missed, please email us at columbiaclimate at gmail dot com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 110.

FEATURED CASE

Magistrate Denied Federal Government’s Motion to Stay Discovery in Young People’s Constitutional Climate Case; Government Defendants Filed Objections to Denial and Sought Judgment on Pleadings and Summary Judgment

On May 25, 2018, a magistrate judge in the federal district court for the District of Oregon denied the defendants’ motion for a protective order precluding discovery in the lawsuit against the United States, the president, and other federal defendants in which young plaintiffs assert constitutional claims based on climate change impacts. The defendants had moved for a protective order and to put a hold on discovery on the grounds that the lawsuit must necessarily proceed under the Administrative Procedure Act (APA) and therefore must be heard on the administrative record. The defendants also argued that separation of powers made discovery inappropriate. In addition, the defendants asked that the lawsuit be stayed while their motions for judgment on the pleadings and summary judgment were pending.

In the order denying the protective order, the magistrate judge said the plaintiffs’ complaint did not contain an APA claim and that the defendants “have no ability to edit the complaint to cobble the claim into one [of] their choosing to derail discovery.” The magistrate judge also characterized the motion as a recasting of the defendants’ unsuccessful motion to dismiss. The magistrate judge indicated that he was “not at all persuaded” that the plaintiffs were limited to bringing an APA-based claim and noted that the district court had already rejected this argument when it denied the motion to dismiss. The magistrate judge also rejected the argument that separation of powers barred all discovery, saying that to broadly preclude discovery on such grounds would allow the government to avoid discovery “simply by asserting hypothetical discovery requests that a litigant might make during the litigation.” The magistrate judge indicated that the defendants could, however, seek a protective order should specific discovery requests arise that implicate claims of privilege.

On June 1, the defendants filed objections asking for the district court’s “immediate intervention.” The defendants said the magistrate judge had failed to “substantively engag[e]” with any of their arguments and that his order was contrary to law and clearly erroneous. The defendants also asked the magistrate judge for a stay pending the resolution of their objections. On June 4, the defendants filed another motion for a protective order, this one targeting deposition notices served on the Departments of the Interior, Agriculture, and Transportation as well as requests for admissions. The defendants also asked that a protective order at least be granted while their objections to the denial of the earlier motion for a protective order of all discovery were pending.

In their motion for judgment on the pleadings, filed on May 9, the defendants argued that the court lacked jurisdiction over claims against the president because separation of powers principles bar federal courts from ordering injunctive relief against the president for official acts. The defendants also asserted that the plaintiffs’ first amended complaint otherwise failed to state valid claims or stated claims that were barred by separation of powers principles. In particular, the defendants argued that the APA provided the “sole mechanism” for the plaintiffs to make their claims, and that all but one of the plaintiffs’ claims made no effort to challenge “circumscribed, discrete” final agency action as required by the APA. The defendants also reasserted the arguments for dismissal from their November 2015 motion to dismiss, including lack of standing and failure to state a claim. The plaintiffs were allowed until June 15 to respond to the motion, with the defendants’ reply due on June 29. Oral argument is scheduled for July 18. (The plaintiffs urged the court to defer resolution of this motion until trial, and had even asked that briefing on the motion be deferred. They argued that the motion was another dilatory tactic on the part of the defendants and said they had already devoted substantial time to informal discovery and had served 17 expert reports and requests for admissions. They also contended that further delay would significantly prejudice them, given the “urgency of the climate emergency.” The defendants responded that deferring resolution of the threshold issues raised by their motion would severely prejudice them and potentially waste “vast amounts” of judicial and litigation resources.)

In their motion for summary judgment, filed on May 22, the defendants indicated that they were following the direction of the Ninth Circuit. The defendants argued that the Ninth Circuit, in denying their request for mandamus, had “observed that Plaintiffs’ claims in this case may be too ‘broad to be legally sustainable,’ and that ‘some of the remedies the plaintiffs seek may not be available as redress.’” The defendants also noted that the Ninth Circuit had said the defendants could reassert challenges to standing, seek summary judgment, and ask for interlocutory appeal. The defendants’ May 22 motion therefore sought summary judgment on “three threshold grounds”: plaintiffs’ lack of Article III standing; plaintiffs’ failure to comply with the requirements of the APA or identify another valid cause of action; and the absence of authority for the court to grant the relief sought by the plaintiffs. With respect to standing, the defendants argued that even if the plaintiffs’ standing allegations were sufficient under a motion-to-dismiss standard, the plaintiffs subsequently had failed to set forth specific facts supporting the existence of a concrete and particularized injury that was traceable to the defendants’ actions and redressable by the court. The defendants also argued that they were entitled to summary judgment because the plaintiffs’ due process and public trust claims failed as a matter of law. In addition, the defendants requested that any denial of the motion be certified for interlocutory appeal.

On May 24, the defendants filed notice of their application to the U.S. Supreme Court for an extension of the time in which they may file a petition for writ of certiorari seeking review of the Ninth Circuit’s denial of their petition for writ of mandamus. The defendants sought an extension of 30 days, to July 5, to allow the solicitor general to continue to consult with federal agencies to determine what course of action to take. Justice Kennedy granted the application on May 29. Juliana v. United States, No. 6:15-cv-01517 (D. Or.).

DECISIONS AND SETTLEMENTS

Supreme Court Declined to Review New York’s Denial of Water Quality Certification for Gas Pipeline

The U.S. Supreme Court denied certiorari to a pipeline developer seeking review of a Second Circuit decision that upheld the New York State Department of Environmental Conservation’s denial of a water quality certification for an interstate natural gas pipeline. The developer had argued that denial of the certification interfered with the Federal Energy Regulatory Commission’s exclusive jurisdiction and violated fundamental principles of federal supremacy. Constitution Pipeline Co. v. New York State Department of Environmental Conservation, No. 17-1009 (U.S. Apr. 30, 2018).

Federal Court Ordered EPA to Respond to Request for Documents Supporting Pruitt Statements on Climate Change

A D.C. federal court granted summary judgment to Public Employees for Environmental Responsibility (PEER) in PEER’s Freedom of Information Act (FOIA) lawsuit against the U.S. Environmental Protection Agency (EPA) seeking documents that EPA Administrator Scott Pruitt relied on when he stated in a March 2017 television interview that “I would not agree that” carbon dioxide generated by humans is “a primary contributor to the global warming that we see,” and that “there’s a tremendous disagreement about of [sic] the impact” of “human activity on the climate.” In the second part of its FOIA request, PEER sought EPA documents supporting the conclusion that human activity is not the primary driver of climate change. The court characterized as “hyperbolic objection” EPA’s argument that PEER’s request was “an impermissible attempt to compel EPA and its Administrator to answer questions and take a position on the climate change debate.” The court said it was “[p]articularly troubling” that EPA based its challenge to the first part of PEER’s request on the premise that “the evidentiary basis for a policy or factual statement by an agency head, including about the scientific factors contributing to climate change, is inherently unknowable.” The court also rejected the argument that the EPA administrator’s public statements were not a proper focus of a FOIA request. Regarding the second part of PEER’s FOIA request, the court said “EPA’s apparent concern about taking a position on climate change is puzzling since EPA has already taken a public position on the causes of climate change” in the D.C. Circuit and Supreme Court, and also suggested that the FOIA request “may be viewed as seeking agency records underpinning a potential change in position signaled by” Pruitt’s remarks. The court also rejected EPA’s claim that the second part of the request failed to reasonably describe the records sought and found that EPA had not demonstrated that responding to the second part of the request would be unduly burdensome. Public Employees for Environmental Responsibility v. EPA, No. 17-cv-652 (D.D.C. June 1, 2018).

Federal Court Denied Washington State Officials’ Motion to Dismiss Coal Terminal Lawsuit

At a hearing on May 30, 2018, the federal district court for the Western District of Washington denied Washington State officials’ motion for partial dismissal of a lawsuit challenging the State’s actions blocking a coal export facility in Longview, Washington. The defendants argued that neither the Interstate Commerce Commission Termination Act (ICCTA) nor the Ports and Waterways Safety Act preempted the State actions and that the State commissioner of public lands was immune from all the claims asserted in the lawsuit because they concerned her management of State-owned aquatic lands of a “unique and fundamentally sovereign nature.” The defendants also argued that the federal court should apply Pullman or Colorado River abstention doctrine to allow parallel state court lawsuits to proceed. The plaintiffs—the operators of a “coal energy supply chain company”—asserted that their claims did not threaten to divest Washington State of its sovereignty; that the ICCTA preempted the State actions, which would “unduly interfere with rail transportation as a matter of fact”; that the PWSA claims could not be dismissed because the defendants were blocking the terminal based on vessel traffic and safety concerns; and that abstention was inappropriate since the plaintiffs were not pursuing their federal claims in state court. BNSF Railway Company (BNSF), which intervened as a plaintiff, argued that the defendants were misusing state law to justify regulating rail and interstate and international commerce, and to interfere with foreign affairs. BNSF contended that their claims were not related just to a single coal terminal but to the defendants’ targeting of the coal supply chain “as part of a broader effort to stop coal use everywhere.” Parties other than BNSF that have participated in the litigation include environmental organizations, represented by Earthjustice, as defendant-intervenors, and the following parties as amici curiae in support of the plaintiffs: Cowlitz County, Western States Petroleum Association, Association of American Railroads, six states (Wyoming, Kansas, Montana, Nebraska, South Dakota, and Utah), American Farm Bureau Federation, American Fuel & Petrochemical Manufacturers, National Mining Association, and National Association of Manufacturers. Lighthouse Resources, Inc. v. Inslee, No. 3:18-cv-05005 (W.D. Wash. May 30, 2018).

California Federal Court Nullified Oakland Ordinance Barring Coal Operations at Shipping Terminal

The federal district court for the Northern District of California ruled that the City of Oakland’s adoption of an ordinance that barred coal operations at a bulk cargo shipping terminal breached the City’s agreement with a developer for the conversion of an old army base into the terminal. The development agreement provided that regulations adopted after the agreement’s signing would not apply to the terminal unless the City determined, based on “substantial evidence,” that the failure to apply the new regulation would pose a “substantial danger” to the health or safety of the people of Oakland. The court found that the record before the City Council did not contain sufficient evidence to support a determination that coal operations would pose a substantial danger. The court rejected the City’s primary argument that particulate matter from coal operations posed such a danger, and also found that the record did not support a determination that fire hazards, worker safety, or greenhouse gases would pose a substantial danger. The court noted that “[t]he hostility toward coal operations in Oakland appears to stem largely from concern about global warming.” The court said the argument that global warming allowed it to invoke the development agreement’s “substantial danger” exception “barely merits a response.” The court stated: “It is facially ridiculous to suggest that this one operation resulting in the consumption of coal in other countries will, in the grand scheme of things, pose a substantial global warming-related danger to people in Oakland.” Oakland Bulk & Oversized Terminal, LLC v. City of Oakland, No. 3:16-cv-07014 (N.D. Cal. May 15, 2018).

Ninth Circuit Upheld Injunctive Relief at Federal Columbia River Power System for Climate Change-Related Violations of Endangered Species Act 

The Ninth Circuit Court of Appeals upheld an injunction requiring federal defendants to take certain actions to address Endangered Species Act (ESA) violations identified in a May 2016 Oregon federal court order in connection with operations of the Federal Columbia River Power System (FCRPS). The district court found that the National Marine Fisheries Service (NMFS) failed to adequately consider climate change when it issued a biological opinion in 2014 concluding that the FCRPS management would not jeopardize endangered and threatened steelhead and salmon. In April 2017, the district court granted certain injunctive relief—including “increased spill” at dams to promote salmonid survival—to address the ESA violations. The Ninth Circuit noted that the ESA foreclosed consideration of all but the irreparable harm factor in the four-factor injunctive relief test and found that the district court had not erred in finding irreparable harm sufficient to support injunctive relief. The Ninth Circuit said that the district court was not required to find an “extinction-level threat” in the short term, but noted that the district court had found that continued low abundance of listed species made them vulnerable to extinction and that one of the shortcomings identified in the NMFS’s analysis was failure to analyze how climate change increased chances of “shock events” that would be catastrophic for listed species’ survival. The Ninth Circuit also dismissed an appeal of the district court’s order requiring disclosure of planned capital expenditures at FRCPS dams to allow plaintiffs the opportunity to file motions to enjoin projects that could bias the National Environmental Policy Action (NEPA) review on remand. (The district court had also found that the NEPA review did not give adequate attention to climate change). The Ninth Circuit said the district court’s disclosure order was not appealable. National Wildlife Federation v. National Marine Fisheries Service, No. 17-35462 (9th Cir. Apr. 2, 2018).

Power Plant Owner-Operators Agreed to Stop Burning Coal to Resolve Citizen Suit

Sierra Club and the owners and operators of the Brunner Island Steam Electric Plant in Pennsylvania lodged a consent decree in the federal district court for the Middle District of Pennsylvania to resolve alleged violations of the Clean Water Act, the Pennsylvania Clean Streams Law, and the Resource Conservation and Recovery Act. Among other things, the consent decree requires the defendants to cease combustion of coal by the end of 2028, except during certain “Emergency Action” events. In addition, the facility must cease combusting coal during the ozone season by the end of 2022 ozone season, except that during an interim period from 2023 to 2028, the plant may burn coal during the ozone season so long as certain conditions are met, including that the facility’s Units 1-3 shall emit less than 6.8 million tons of carbon dioxide each year. Sierra Club v. Talen Energy Corp., No. 1:18-cv-01042 (M.D. Pa. May 17, 2018).

California Federal Court Said Fish and Wildlife Service’s Withdrawal of Bi-State Sage Grouse Proposed Listing Was Arbitrary and Capricious, but Upheld Consideration of Cumulative Threats, Including Climate Change

The federal district court for the Northern District of California ruled for plaintiffs who challenged the U.S. Fish and Wildlife Service’s withdrawal in 2015 of the proposed listing of the Bi-State Sage Grouse distinct population segment of the greater sage-grouse as threatened under the Endangered Species Act. The court rejected, however, the argument that the FWS had not considered cumulative threats to the Bi-State Sage Grouse, including climate change. The court noted that courts had generally found that the FWS met the requirement to consider cumulative threats when it provided “even a brief discussion” of such threats. In this case, the court said the FWS “offered sufficient explanation of its consideration of cumulative threats” by “identif[ying]  the threats that may interact and provid[ing] some explanation of the implications of the interactions.” The court found, however, that other aspects of the FWS’s determination were otherwise arbitrary and capricious and that the definition of “significant” in the FWS’s final policy on interpretation of the phrase “significant portion of its range” was an impermissible interpretation. Desert Survivors v. U.S. Department of the Interior, No. 3:16-cv-01165 (N.D. Cal. May 15, 2018).

Washington Appellate Court Upheld Convictions of Protestors, Affirmed Trial Court’s Decision Not to Instruct Jury on Necessity Defense

The Washington Court of Appeals affirmed the trespass convictions of four protestors who entered a rail yard in Everett, Washington, and blocked tracks to protest coal and oil trains and raise awareness of rail safety and climate change. The appellate court found that the trial court had not abused its discretion when it denied the defendants’ request for a jury instruction on the necessity defense. The appellate court agreed that the defendants had failed to offer sufficient evidence for the fourth element of the necessity defense requiring that no reasonable legal alternatives existed. The appellate court also disagreed with the defendants’ argument that their right to present a defense was violated by the trial judge allowing them to present evidence for the necessity defense but refusing to instruct the jury on the defense. The appellate court rejected, however, the State’s argument that a necessity defense was never available in a civil disobedience context. State v. Brockway, Nos. 76242-7, 76242-5, 76242-3, 76242-1 (Wash. Ct. App. May 29, 2018).

California Court of Appeal Upheld Construction Greenhouse Gas Emissions Analysis Based on Statewide Goals

The California Court of Appeal affirmed the rejection of California Environmental Quality Act and other claims challenging the County of San Mateo’s approval of a 19-home residential development. The organization challenging the project argued unsuccessfully that the County used flawed methodology to determine that greenhouse gas emissions during construction could be mitigated to a less than significant level. The environmental impact report’s (EIR’s) analysis concluded that there would be a less-than-significant cumulative impact on greenhouse gas emissions if mitigation measures were required to reduce project-related emissions by 26% below business-as-usual, to match the statewide goal for greenhouse gas emissions reductions. The Court of Appeal said this assumption did not suffer from the same flaws as the analysis struck down by the California Supreme Court in Center for Biological Diversity v. Department of Fish & Wildlife, which found insufficient evidence to support a conclusion that reducing business-as-usual emissions at the project level was consistent with achieving statewide goals. In an unpublished opinion, the Court of Appeal distinguished the instant case as involving “analysis of GHG emissions during a finite construction phase of the project” while the Center for Biological Diversitycase involved “the impact of GHG emissions resulting from the operation of a massive development project.” The Court of Appeal also noted that in this case the EIR assumed that construction emissions would be significant and an “objective concrete method” to reduce emissions was required, whereas the agency in Center for Biological Diversityconcluded no greenhouse gas mitigation measures were required because impacts would not be significant. Responsible Development for Water Tank Hill v. County of San Mateo, No. A150883 (Cal. Ct. App. May 18, 2018).

California Court of Appeal Said Approvals for Newhall Ranch Could Remain in Place While Los Angeles County Fixed Greenhouse Gas Analysis

The California Court of Appeal upheld a trial court’s decision to leave land use approvals of components of the Newhall Ranch development in Los Angeles County in place even though the court partially decertified the final..

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By Michael Burger

Climate change nuisance litigation is entering a new and dynamic phase. Tomorrow, Thursday, May 24, Judge William H. Alsup in the federal district court in San Francisco will hear oral argument on motions to dismiss filed in City of Oakland v. BP P.L.C., a consolidated case in which Oakland and San Francisco claim that five fossil fuel companies’ production and promotion of fossil fuels constitutes a public nuisance under federal and California common law. Three weeks later, on June 13, Judge John F. Keenan of the Southern District of New York will hear oral argument on the motions to dismiss filed in City of New York v. BP P.L.C., a case in which New York City alleges these same companies’ same activities constitute a public nuisance and trespass under New York State law. The decisions on these motions could influence pending and future litigation in the same vein – lawsuits seeking damages, compensation or abatement funds to alleviate the costs borne by local governments to adapt to climate change impacts.

At the moment, it’s pretty messy out there. There are eight other climate change tort cases pending: six alleging nuisance and a variety of other state common law violations in California courts, one claiming state public nuisance along with other state common law and statutory violations in Colorado, and one claiming state public nuisance and trespass in Washington. One set of California cases – filed by San Mateo County, Marin County and Imperial City – was removed by defendants to federal court, then remanded to state court, based on Judge Vince C. Chhabria’s conclusion that federal common law has been displaced and that state law should govern the cases – a conclusion opposite to that previously reached by Judge Alsup in a decision preserving the removal of the Oakland/San Francisco case. Judge Chhabria then certified his decision for interlocutory appeal to the Ninth Circuit, and in March defendants filed their petition. Late yesterday, May 22, the Ninth Circuit panel denied the petition for interlocutory appeal. A separate appeal, challenging Judge Chhabria’s decision that the federal officer statute does not require removal, is pending, with briefing scheduled to take place over the summer. Meanwhile, a second set of cases – filed by Santa Cruz County, the City of Santa Cruz, and the City of Richmond – have also been removed to federal court and assigned to Judge Chhabria. A motion for remand has been briefed. The cases filed by the City and County of Boulder, Colorado, and by King County, Washington are still young, and defendants have not yet responded to the complaints.

The table below, pulled together by summer intern Patrick Woolsey (Yale Law School/Forestry & Environmental Studies, ’19) seeks to summarize – in a simplified manner – the arguments set forth by the defendants in the Oakland/San Francisco and New York City cases. Plaintiffs’ arguments, broadly construed and without getting into specifics, are that defendants are wrong on each point.

These arguments – about displacement of federal law, preemption of state law, the foreign affairs power, political question, standing, the applicability of common law to defendants’ activities, causation, and so on – will recur in the other lawsuits, when they get to the motion to dismiss phase. Here, I want to just flag two meta-questions that I think are central to these cases, that cut across the particularized legal debates, and that are likely to feature in any and all of the litigation to come:

First: Are courts the appropriate branch of government to determine rights and assign responsibilities for the production of fossil fuels and its consequences? Defendants argue that the other branches have through their actions and by virtue of our constitutional structure occupied the field, so to speak, in this area. For instance, federal legislation establishing national energy policy, providing for the leasing of federal lands, and setting up permit schemes for fossil fuel production activities, according to defendants, displaces federal public nuisance claims and preempts state common law claims. The global nature of the climate change problem and its potential solutions, according to defendants, means both that court intervention would “infringe on the federal foreign affairs power” and that there are no manageable standards for a court to apply to plaintiffs’ claims, making it a necessarily political question. As I’ve noted in an earlier blog looking at preliminary issues in these cases, the Supreme Court found in AEP v. Connecticut that the Clean Air Act displaced a federal nuisance claim seeking to enjoin the direct greenhouse gas emissions from a handful of power companies, and the Ninth Circuit found that that holding controlled a separate suit seeking damages from emissions. But the Second Circuit (in Connecticut v. AEP) and the Fifth Circuit (in Comer v. Murphy Oil) have addressed other issues raised by defendants in these motions at length, and found the arguments unpersuasive.

Second: Can any plaintiff establish a sufficient connection between the fossil fuel companies and climate impacts to survive a motion to dismiss? The standards for pleading (and proving) such a connection vary among jurisdictions and among causes of action, but the broad contours of defendants’ arguments are similar in the different cases. For one thing, defendants argue that climate change is caused by greenhouse gas emissions, not by the production of fossil fuels, and so any claim against these companies is necessarily “indirect.” This raises difficult questions of spatial and temporal proximity to the harm, invokes the specter of the many unnamed third parties involved in producing the harm (including, as defendants repeatedly point out, plaintiffs themselves), and feeds into and off of defendants’ argument that they did not have “control” of the product at the time it “caused” the alleged nuisance. What’s more, defendants argue that their contributions, whatever they are, examined individually or taken together, cannot be shown to be a “but for” cause of climate change, due to the existence of competitors who arguably would have swooped in and produced whatever fossil fuels they did not and myriad other industrial and non-industrial factors that contribute to the problem. Again, panels at the Second and Fifth Circuit have concluded that causation in climate tort cases can be adequately pled to survive motions to dismiss, and those decisions may offer some guidance for how the courts respond here. But none of the judges in these cases are bound by those decisions.

It can be difficult to discern from a hearing where a judge will end up on a motion, but the upcoming arguments may begin to shed some light on which aspects of these cases Judge Alsup and Judge Keenan are most interested in or concerned about. Ultimately, wherever these judges do come out on these motions, the litigation will continue in other courtrooms, and the outcome will be far from settled.

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By Dena Adler

Meeting in the Chamber Hall at the World Conference Center Bonn.

Thousands of country delegates, NGO representatives, citizens, researchers, and members of the private sector converged in Bonn, Germany for two weeks of meetings to advance global climate change negotiations, ending on May 10. While the annual international climate summit, called the Conference of the Parties or “COP,” attracts greater media attention, “intersessionals” like the recent Bonn meetings, along with remote work throughout the year, are when parties do the real work to hash out the details of COP decisions.

The recent Bonn negotiations sought to advance progress on a “Paris Rulebook” which will set out guidelines for how countries should implement their pledges for climate action—known as “nationally determined contributions” (NDCs)—under the Paris Agreement. When the Paris Agreement was negotiated, countries largely expected it would enter force no earlier than 2020, leaving them several years to lay out the rules of the road for implementation. However, the Paris Agreement entered into force unexpectedly quickly in November 2016. This has in turn pressured parties to speed up production of implementation guidelines for their climate action pledges.  Parties have now set a deadline to produce the Paris Rulebook by the upcoming COP 24, to be held in December 2018 in Katowice, Poland.

The success of the Paris Agreement is closely intertwined with how effectively this rulebook drives implementation and ratchets up the near-term ambition of climate action. Current climate pledges under the Paris Agreement will deliver only 1/3 of the reductions needed to limit global average warming to the 2°C goal of the Paris Agreement. While the failure to achieve a robust rulebook would impact poor and particularly climate vulnerable countries most heavily, these countries typically stand at a disadvantage in the highly complex negotiating process under the United Nations Framework Convention on Climate Change (UNFCCC), lacking the teams of lawyers and experts that larger delegations can field to advance favorable outcomes.

Earlier this month, I attended the intercessional as part of the delegation from Legal Response International (LRI), a group which seeks to help level the legal playing field by connecting climate vulnerable developing countries and civil society organizations with a network of legal experts who provide hands-on assistance during the negotiations. The Sabin Center partnered with LRI to help provide pro bono legal support and access to legal experts during the recent intersessional. A range of substantive and procedural queries were received on such topics as financial flows to developing countries, market-based climate mitigation mechanisms under Article 6, and reporting requirements for countries’ respective climate actions. These questions reflect some of the contentious issues that require further resolution before COP 24 in December.

At the closing sessions of the intersessional, parties noted a lack of sufficient progress on number of items related to finalizing a Paris Rulebook, including finance for developing countries and transparency frameworks for reporting countries’ climate actions. While incremental progress was tracked in a series of “informal notes,” (available on the UNFCCC website), no draft negotiating text is yet available. Co-chairs of the respective procedural bodies will now work to develop another round of notes which capture inputs from the meetings and propose a path forward. Efforts to develop the Paris Rulebook will resume at the next set of meetings to be held in Bangkok, Thailand in September.

Despite slow progress toward draft text, a number of side events highlighted opportunities to advance climate action through engagement of cities, states, the private sector, universities, and wider civil society. The convening of the Talanoa Dialogue, a new process meant to drive greater ambition through inclusive conversation provided a breath of fresh air, allowing representatives of countries, civil society, local & regional governments, international organizations, academia, and the private sector to share over 700 stories and build common ground for progress. While how exactly COP24 will harness this momentum to advance a robust outcome remains an open question, these activities illustrate some emerging pathways for progress.

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By William Omorogieva*

The intensity of recent hurricanes and the damage they have caused in America have garnered lots of national news coverage. After Hurricane Katrina, it became evident how a lack of planning for natural disasters can have dangerous and deadly consequences. However, often hidden from public view is the struggle that some of our most vulnerable citizens endure during times of hurricanes and other natural disasters. Inmates in prisons and jails cannot take care of themselves and must rely on prison officials to do so. During national disasters like hurricanes, prisoners have consistently suffered physical and mental injuries and often have no remedy for their suffering. In a country that has more correctional facilities than colleges, it is unfortunate how often prisoners’ rights are left out of sight and out of our hearts.

The accompanying paper explores the correctional sector in the United States and the culture of neglect regarding prisoner safety and well-being during natural disasters, with a focus on Hurricanes Katrina, Harvey, Irma, and Maria. This paper covers rights that prisoners have under the Eighth Amendment of the United States Constitution and other federal statutes. The paper goes on to examine prison emergency preparedness in general and the lack of continuity regarding planning for natural disasters.

Prisoner conditions during recent hurricanes are examined closely to highlight how a lack of adequate emergency planning led to inmates living in unsuitable living conditions that violated their constitutional rights. It is important to note that for over a decade after Hurricane Katrina, during which prisoners suffered dearly, this repeated cycle of unacceptable living conditions and deprivation of prisoner’s rights has continued. The paper closes by recommending changes to some of the federal legislation that gives prisoners’ rights. These changes, which range from legislative approaches to litigation, are meant to create comprehensive federal protections for prisoners who are confronted with horrible living conditions and inadequate health care when they are not evacuated during hurricanes.

*William Omorogieva is a member of the J.D. Class of 2019 of Columbia Law School.  He is from Washington, D.C.

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By Richmund Sta. Lucia

On March 27, 2018, the Philippine Commission on Human Rights (CHR) held its first hearingon the petition seeking to hold the “Carbon Majors” accountable for contributing to global emissions of greenhouse gases and the resultant impacts of climate change. The said petition requests the CHR to investigate the responsibility for climate-related human rights violations of the so-called “Carbon Majors”—companies engaged in the oil & gas, coal, and cement business that include household names in the energy industry such as Chevron, ExxonMobil, Royal Dutch Shell, and British Petroleum. (In a previous post, we tackled the issue on the jurisdiction of the CHR to investigate the allegations set forth in the petition.) The conduct of the hearing shows initial progress and serious intent on the part of CHR to investigate, gather facts, and shed light on the possible culpability of the respondent corporations.

Conduct of the First Hearing

The public hearing was held on March 27-28, 2018 at the CHR Session Hall in Manila, Philippines.  It was streamed live online. On the first day, Mr. Chito Gascon, Chairman of the CHR, gave his opening remarks to start the proceedings dubbed as “National Inquiry on the Impact of Climate Change on the Human Rights of the Filipino People and the Responsibility Therefor, if any, of the ‘Carbon Majors’”. Commissioner Roberto Cadiz chaired the hearing. The petitioners’ counsel entered their appearance; no representatives from the respondents were present.

After the petitioners’ counsel gave their opening statement, they presented six witnesses (also known as “resource persons”) on day one (March 27), including a member of the youth and an indigenous people community, the head of a national association of farmers, a community leader in the rural areas and a vegetable farmer, and a fish vendor whose husband is a fisherman. They narrated how climate change adversely affected their health, livelihood, and overall quality of life. In addition, expert witnesses also gave their testimonies regarding the role of greenhouse gases in the environment, how climate change caused by emissions can be traced to carbon major producers, and observed climate trends and projections in the Philippines. (A video recording of the hearing held on day one can be accessed here.)

On day two (March 28), additional witnesses were presented. A leader of a transportation workers union shared how extreme heat and weather-related events affected their livelihood in the transport sector. Moreover, experts from the University of the Philippines’ Marine Science Institute testified about the role of carbon dioxide in ocean acidification and how such phenomenon makes the Philippines’ coastal areas more vulnerable. Other experts also gave their presentations about the impacts of climate change on human health as well as the nexus between Carbon Majors and industry knowledge on climate science. (A video recording of the day two hearing can be found here.)

During these hearings, the Commissioners often asked clarificatory questions to the witnesses and the counsel of the petitioners. There were also some interesting questions that were raised during the hearing. One of the petitioners, the President of the Philippine Rural Reconstruction Movement, inquired whether the CHR will invite resource persons (scientists, statisticians, etc.) who deny the phenomenon of climate change. Commissioner Cadiz replied in the affirmative, reasoning that the human rights tribunal will consider all available evidence that will help them arrive at an informed resolution. Based on such statement from the CHR, the agency affirms its commitment to conduct the hearings in a balanced and impartial manner.

Non-Participation by the Respondents

It came as no surprise that the Carbon Majors did not participatein the first hearing. The respondents did not have any representative in the proceeding; neither did they file any pleading or motion with the CHR. If at all, this move is consistent with their express position (as far as those who had earlier submittedletter-responses) that the Philippine agency does not have jurisdiction over them. The CHR was also expecting this turnout even at the get-go; nevertheless, it believes that due to the overarching importance of today’s climate issues, the respondent corporations—and the general public—continue to take interest and are closely monitoringdevelopments on the proceedings. Consequently, the CHR completed the first hearing without the respondents’ participation. In contrast, some climate experts based in the United States (e.g.., the Center for International Environmental Law and the Union of Concerned Scientists) have expressed supportto the petitioners during the hearing and buttressed the petition’s scientific basis for the nexus between the Carbon Majors and climate-related human rights violations.

The Carbon Majors’ lack of participation in the hearings can be deemed a constant challenge that the petitioners as well as the CHR have to deal with throughout the course of the petition. If the respondent corporations will continue to ignore the proceedings, the CHR will be constrained to consider ex parte only the facts and evidence presented by the petitioners. Later, the outcome of the proceedings will come in the form of a recommendation by the CHR as to what steps to do next in accordance with its rules of procedure, such as requesting any department, bureau, office, or agency of the Philippine Government to provide assistance or take appropriate action. It becomes even more interesting if the resulting recommendation by the CHR arises from a determination that the Carbon Majors indeed contributed to climate change and are held to be directly responsible for causing extreme weather events (including the deadly Typhoon Haiyan that struck the Philippines in 2013). As things currently stand, it would be reasonable to expect the respondent corporations will show stiffer opposition against the CHR’s jurisdictional authority in the future.

The CHR’s Omnibus Rules of Procedure(Guidelines and Procedures in the Investigation and Monitoring of Human Rights Violations and Abuses, and the Provision of CHR Assistance) contains procedural guidelines that both the CHR and the petitioners may invoke to deal with the issue of non-participation by the respondents. Rule 3, Section 1 provides the powers and functions of the CHR in its investigative and monitoring functions. According to this Rule, the CHR can conduct fact-finding missions, visits, and inspections of the place where human rights violations occurred. Similarly, it is within the CHR’s authority to conduct preliminary conferences, dialogues, public inquiries, forums, or hearings on cases involving human rights violations, as well as human rights issues of national or international importance. Also, Rule 4, Section 11 provides that the processes issued by the CHR in aid of its investigation, either in the form of a notice, letter-invitation, order, or subpoena, shall require the respondents to respond to the complaint and also inform them that in case of failure to attend or respond, the CHR will proceed with the investigation and decide on the basis of the evidence and documents on record.

CHR’s Enforcement Powers?

There is one point of contention, however, that can be raised relating to the enforcement powers of the CHR: does it have the power to compel parties to attend hearings? It is interesting to note that under the Omnibus Rules, it can issue invitations, subpoenas, orders, or other processes requesting or directing any person to appear, attend and testify at the meeting, forum, conference, dialogue, public inquiry, or hearing conducted by it. Corollary to this, the subject person can be requested or directed to produce and submit records, documents, books or other things under his or her possession, control or supervision, as deemed relevant to the case being investigated by the CHR. What is more, the Omnibus Rules states that the CHR can cite any person in contempt for violation of the Rules, in accordance with the Philippine Rules of Court (which governs rules of procedure).

The CHR’s contempt power finds its fundamental basis in Section 18, Article 13 of the Philippine Constitution. Under Rule 15, the agency can hold a party committing a contumacious act liable for direct or indirect contempt. The grounds for indirect contempt include disobedience of or resistance to a lawful writ, process, order, judgment, or command of the CHR, as well as failure to obey its subpoena. If the penalty meted for contempt is imprisonment, it may call for the appropriate law enforcement agency to effect arrest and detention. It bears emphasis that the CHR and the Philippine Department of Justice (as the governmental agency tasked with criminal prosecution) entered into a Memorandum of Agreement where both agencies are enjoined to coordinate regarding the investigation and prosecution of human rights violations.

If we take a closer look at Philippine jurisprudence, there appears to be somewhat an inconsistency between the Omnibus Rules and a judicial pronouncement made by the Philippine Supreme Court in 1992. In Export Processing Zone Authority v. CHR, the high court ruled that the CHR does not have jurisdiction to issue a restraining order or writ of injunction because it is not a court of justice. What the court suggested to the human rights agency is to provide “preventive measures and legal aid services” by applying for an injunction from judicial courts on behalf of the human rights victims. Hence, this particular ruling of the Philippine Supreme Court does not recognize the CHR’s enforcement power to issue injunctions.

If the CHR does not have any enforcement powers to compel the respondents via injunction, then it can resort to merely “invite” them and urge participation. As statedby a CHR commissioner, the agency’s purpose is “to foster dialogue between stakeholders”. While an invitation does not have compelling power similar to an injunction issued by a court of law, there are other powers and functions that the CHR can resort to in order to give more teeth to its authority to enforce participation in the hearings. For example, the jurisprudential rule in the EPZA case can be narrowed down to the specific facts in that case and no further. In other words, it can be conceded that the CHR, according to EPZA, does not have the legal authority to compel a person to cease and desist from continuing acts deemed violative of human rights by way of an injunctive writ; this notwithstanding, the CHR’s power to issue subpoenas against a person or to produce documents, as well as the authority to hold a person in contempt, can still be used by the CHR (as provided under the Omnibus Rules) in order to “direct” a person to comply with its orders, especially with respect to its investigative and fact-finding authority.

Since there is no case law yet that specifically addresses the issue on whether the CHR is legally authorized to exercise the above powers granted by the Omnibus Rules (which is entitled to a legal presumption of validity), it can be reasonably argued that the CHR is not prohibited from doing so. If the authority to issue subpoenas and contempt powers will be exercised by the CHR against the respondents, its authority to direct them to participate in the hearings will be more pronounced. It can also send a strong signal to all observers that the CHR is indeed serious in pushing the progress of the proceedings and ultimately determine accountability. The end result of the proceedings is that the CHR would come up with a resolution containing recommendations to policymakers in order to combat climate change and prevent related human rights violations. According to the CHR, the agency’s records will be available to the public should anyone intend to file cases in regular courts to pursue civil or criminal charges.

Procedural Considerations in the Future

As to whether the respondent corporations will actually acquiesce to the CHR’s orders is another matter. The Carbon Majors can argue against the seeming extraterritorial effect of the proceedings—the CHR’s jurisdiction is only territorial, i.e., it can only investigate human rights violations that occur within the Philippines. This raises a tricky question because the impact of climate change is global in scope and transcends national borders. Then again, similar to the direct effects of climate change, e.g., Typhoon Haiyan caused massive injury to life, health, and property in the Philippines, there is basis to argue that the CHR can compel respondents to participate in the proceedings or otherwise forfeit their opportunity to present evidence and argue. Moreover, with respect to the Carbon Majors which have a business presence in the Philippines (such as Chevron and Royal Dutch Shell), the CHR can more likely issue subpoenas or use contempt powers to elicit compliance with its orders or recommendations.

As a matter of procedure, the CHR can generally acquire in personam jurisdiction through service of summons or voluntary appearance in court (Prudential Bank vs. Magdamit, 2014). (Note that judicial procedural rules apply to CHR proceedings in a suppletory fashion according to the CHR Omnibus Rules, Rule 7, Section 22.) Rule 14 of the Rules of Court provides that while personal service of summons is the preferred mode, the rules also recognize other modes of service of summons: (1) substituted (i.e., leaving a copy of the summons at the defendant’s residence or regular place of business); and (2) extraterritorial (i.e., for a non-resident defendant which has property in the Philippines, service may be made outside the Philippines by either personal service or by publication in a newspaper of general circulation in such place ordered by the tribunal). If the tribunal has no jurisdiction over the person of the defendant, the complaint will be dismissed (Philippine Rules of Court, Rule 16, Section 1(a)). Here, the petitioners argue that extraterritoriality is “not a bar to the Commission’s exercise of authority, considering the transboundary nature of climate change and other environmental problems and the associated human rights implications.” (Petition, p. 11) They also acknowledge, though, that “[i]f extraterritorial service of notice, summons, and pleadings, as well as the conduct of investigation, cannot be facilitated or are denied facilitation by the national human rights institutions, or other equivalent body, in the countries of Respondent Carbon Majors, or for other practical reasons the same could not be implemented, Petitioners will find it amenable that the investigation and related processes for this Petition will involve onlythose Respondent Carbon Majors with branches, regional offices, and/or subsidiaries in or substantial connection (through their agents) to, the Philippines.” (Petition, pp. 11-12; emphases supplied).

In addition, the respondents can file a third-party complaint and bring in third-party defendants—with permission from the tribunal—as provided under Section 11, Rule 6 of the Philippine Rules of Court. Furthermore, Section 12 states that if there are additional parties whose presence is required in order for the tribunal to be able to grant complete relief, the tribunal will order them to be brought in as defendants, so long as jurisdiction over them can be obtained. In other words, the Carbon Majors could argue that other companies (e.g., other oil, gas, and coal companies, motor vehicle manufacturers, cement companies, electric utilities, and others that were not named in the petition) would also be liable if they are, and therefore should also be brought before the tribunal. The above issues on personal jurisdiction and third-party complaints are procedural matters which the CHR may possibly need to deal with should the respondents raise them in the future.

Aside from the CHR’s Session Hall in Manila, hearings in the future are also scheduledin New York (September 24-28, 2018, hosted by the New York City Bar Association) and London (November 5-9, 2018, hosted by the London School of Economics). These locations are nearer to the global headquarters of some of the Carbon Majors. This can be a logistical reason for them to attend the next hearings. In addition, the perceived “home court advantage” that the petitioners may have had in Manila may be counterbalanced in these locations. Whether the Carbon Majors will find these considerations sufficient to reconsider their position and later decide to participate in the hearings set in these neutral venues outside the Philippines remains to be seen. Yet, it bears emphasis that Commissioner Cadiz noted during the hearing the manifestation of Cemex (a Carbon Major based in Mexico) dated December 7, 2017 withdrawing its challenge on the jurisdiction of the CHR to conduct the inquiry. In effect, Cemex withdraws its motion to dismiss dated September 14, 2016 that it earlier filed. If at all, this could be a positive development towards better participation in the dialogue; hopefully, other Carbon Majors will follow suit. In the meantime, the CHR and its ongoing investigation will be needing the support of organizations and individuals in the fields of public policy, science, economics, law, and other fields that can be united by a common advocacy for climate justice.

Richmund Sta. Lucia, a candidate for an LL.M. degree at Columbia Law School, received his J.D. degree from the University of the Philippines College of Law and has worked as an attorney in the Philippines’ Office of the Solicitor General and private law firms. His legal advocacy includes the promotion of renewable energy. This blog presents his personal views and not necessarily those of the Sabin Center for Climate Change Law.

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Each month, Arnold & Porter and the Sabin Center for Climate Change Law collect and summarize developments in climate-related litigation, which we also add to our U.S. and non-U.S. climate litigation charts.  If you know of any cases we have missed, please email us at columbiaclimate at gmail dot com.

HERE ARE THE ADDITIONS TO THE CLIMATE CASE CHART SINCE UPDATE # 109.

FEATURED CASE

Federal Circuit Reversed Ruling That Held U.S. Liable for Louisiana Flood Damage

The Federal Circuit Court of Appeals reversed the Federal Court of Claims finding that the federal government was liable for flood damage in St. Bernard Parish and New Orleans that was caused by Hurricane Katrina and other hurricanes. The plaintiffs, who were property owners in St. Bernard Parish and the Lower Ninth Ward of New Orleans, contended that the government was liable for a taking based on its inaction, including the failure to properly maintain or modify the Mississippi River-Gulf Outlet (MRGO), and its actions, including the construction and operation of the MRGO channel. The Federal Circuit held that the government cannot be liable for inaction on a takings theory and that the construction and operation of MRGO had not been shown to be the cause of the flooding. The court found that the plaintiffs and the Court of Claims had not applied the correct legal standard to the causation analysis, which was required to “account for government flood control projects that reduced the risk of flooding.” The court said the plaintiffs failed to present evidence comparing the flood damage that occurred to what would have occurred had there been no government action at all and so had failed to take account of actions—including a system of levees and floodwalls known as the Lake Pontchartrain and Vicinity Hurricane Protection Project—that mitigated the MRGO impact. St. Bernard Parish Government v. United States, No. 2016-2301, 2016-2373 (Fed. Cir. Apr. 20, 2018).


DECISIONS AND SETTLEMENTS

Second Circuit Vacated Rule Delaying Increased Penalties for Violations of Fuel Efficiency Standards

In a one-page order, the Second Circuit Court of Appeals granted petitions from environmental groups and five states challenging the Trump administration’s rule delaying the effective date for regulations that increase penalties for violations of vehicle fuel efficiency standards. The court vacated the delay rule and indicated that an opinion would follow “in due course.” Natural Resources Defense Council, Inc. v. National Highway Traffic Safety Administration, Nos. 17-2780, 17-2806 (2d Cir. Apr. 23, 2018).

Ninth Circuit Stayed District Court Order Requiring Publication of Energy Conservation Rules

On April 11, 2018, the Ninth Circuit Court of Appeals granted emergency motions to stay a district court order requiring the U.S. Department of Energy (DOE) to publish final energy conservation rules for portable air conditioners, air compressors, commercial packaged boilers, and uninterruptible power supplies in the Federal Register. DOE and the Air-Conditioning, Heating, & Refrigeration Institute filed the appeals of the district court order, which held that DOE had a non-discretionary duty under the Energy Policy and Conservation Act to publish the standards, which DOE adopted in December 2016. The Ninth Circuit also sua sponte expedited the proceedings in the appeals. Natural Resources Defense Council, Inc. v. Perry, Nos. 18-15380, 18-15475 (9th Cir. Apr. 11, 2018).

In Partial Reversal, New Mexico Federal Court Rejected Challenges to Drilling Permits

On April 23, 2018, the federal district court for the District of New Mexico dismissed all claims in a lawsuit challenging the U.S. Bureau of Land Management’s (BLM’s) approval of more than 300 applications for permit to drill (APDs) wells in the Mancos Shale in the San Juan Basin. The court found that that BLM had not violated either the National Environmental Policy Act (NEPA) or the National Historic Preservation Act (NHPA). (The NHPA holding reversed the court’s initial conclusion in a March 31 order that BLM had violated NHPA for some wells for which the areas of potential effect contained historic sites.) With respect to NEPA, the court found that BLM had “properly tiered” its environmental assessments (EAs) for the APDs to a resource management plan and environmental impact statement from 2003 and had determined that new developments since 2003 in horizontal drilling and fracking technology would not have significant environmental effects. The court noted, for instance, that an EA had indicated that carbon dioxide emissions from a horizontal well would represent only a 0.0008% increase in New Mexico carbon dioxide emissions. Diné Citizens Against Ruining Our Environment v. Zinke, No. 1:15-cv-00209 (D.N.M. Apr. 23, 2018).

In Challenges to Keystone Pipeline Permit, Montana Federal Court Ordered Federal Defendants to Search for More Documents for Administrative Record

On April 16, 2018, the federal district court for the District of Montana ordered the federal defendants to complete the administrative record or provide a privilege log in pending challenges to the presidential permit granted in March 2017 for the Keystone XL Pipeline. The court found that the plaintiffs had rebutted the presumption of completeness of the administrative record by pointing to specific documents that were missing and that the federal defendants’ failure to provide the whole record also was evidenced by their earlier supplementation of the record after the court required that they produce documents or prepare a privilege log for documents dated from January 26, 2017 to March 23, 2017. In addition, the court rejected the defendants’ argument that internal agency communications and drafts could not comprise part of the administrative record. Recognizing the burden imposed on the defendants, the court required the plaintiffs to provide a “reasonable list” of no more than 50 search terms to narrow the scope of inquiry. The parties also agreed that the date range for the additional document production would be limited to May 2012 to November 2015. Indigenous Environmental Network v. U.S. Department of State, No. 4:17-cv-00029 (D. Mont. Apr. 16, 2018).

California Federal Court Granted Fossil Fuel Companies’ Motion to Stay Order Remanding Counties’ and City’s Climate Case to State Court

The federal district court for the Northern District of California granted the defendants’ motion to stay its remand orders pending appeal in the climate change lawsuits brought by the Counties of San Mateo and Marin and the City of Imperial Beach against a number of fossil fuel companies. The court also certified for interlocutory appeal all issues addressed in the remand order. County of San Mateo v. Chevron Corp., No. 3:17-cv-04929 (N.D. Cal. Apr. 9, 2018).

Massachusetts High Court Ruled That Exxon Must Comply with Attorney General’s Climate Change Investigation

The Massachusetts Supreme Judicial Court affirmed a Superior Court order denying ExxonMobil Corporation’s (Exxon’s) motion to bar the Massachusetts attorney general from pursuing her investigation of whether Exxon’s marketing or sale of its fossil fuel products violated the Massachusetts consumer protection law. The Supreme Judicial Court held that Exxon was subject to personal jurisdiction in Massachusetts. The court also rejected Exxon’s argument that the civil investigative demand (CID) was “overbroad and unduly burdensome” or that it was “arbitrary and capricious” because it was issued “solely as a pretext.” In addition, the court concluded that disqualification of the attorney general’s office was not necessitated by her participation in the “AGs United for Clean Power” press conference and found that the Superior Court had not abused its discretion by denying a stay pending the resolution of Exxon’s federal lawsuit against the attorney general. The Supreme Judicial Court also affirmed the order granting the attorney general’s cross motion to compel Exxon’s compliance with the CID. Exxon Mobil Corp. v. Attorney General, No. SJC-12376 (Mass. Apr. 13, 2018).

Divided Minnesota Appellate Court Dismissed State’s Appeal of Trial Court Decision Allowing “Valve Turners” to Present Necessity Defense

In a split decision, the Minnesota Court of Appeals dismissed the State of Minnesota’s appeal of a trial court decision allowing defendants who participated in a “valve turner” protest to present a necessity defense. Two defendants who used bolt-cutters to enter an oil pipeline valve station and to cut a chain securing a valve device and one defendant who filmed the activities were charged with felony criminal damage to property, aiding and abetting felony criminal damage to property, gross misdemeanor trespassing, and aiding and abetting gross misdemeanor trespassing, A fourth defendant who accompanied the other three defendants and contacted the pipeline operator to notify it of their actions was charged with conspiracy to commit felony criminal damage to property and aiding and abetting felony criminal damage to property. The appellate court said the State had not made the necessary showing that the trial court’s ruling would have a critical impact on the prosecutors’ case “in the absence of other yet-unmade rulings” regarding what testimony and evidence would be permitted, what objections the State would make, and what the trial court’s rulings would be. One judge dissented, saying that permitting any evidence regarding global warming and the defendants’ belief that the federal government’s response to global warming had been ineffective “would have a critical impact on the outcome of the trial.” The dissenting judge also wrote that the evidence the defendants wished to present did not relate to the necessity defense as interpreted under Minnesota law because the defendants could not establish the three essential elements of the defense: that there was no legal alternative to their actions, that the harm was imminent, and that there was a direct, causal connection between their actions and the prevention of global warming. State v. Klapstein, Nos. A17-1649, A17-1650, A17-1651, A17-1652 (Minn. Ct. App. Apr. 23, 2018).

Washington State Court Issued Written Decision Allowing Protestor to Present Necessity Defense

On March 13, 2018, a Washington District Court issued its written findings of fact and conclusions of law allowing a defendant who participated in a protest blocking a freight train to protest the transport of coal and oil to present a necessity defense at his trial. The defendant testified that he believed his actions were “acts of civil disobedience” that he believed “were necessary to avoid or minimize the imminent danger to the Earth due to climate change and the serious and imminent risk of danger to safety of Spokane citizens in the downtown area where [the rail company] transports volatile oil.” Three expert witnesses testified or submitted a declaration on the defendant’s behalf—a lead author of the Intergovernmental Panel on Climate Change Fourth Assessment, a professor of conflict resolution who teaches courses on nonviolent civil resistance, and a “recognized international analyst in nuclear waste storage and transportation and industrial chemical use, transportation and accident prevention, and emergency planning and homeland security.” The court concluded that the defendant satisfied his burden of proof with respect to the necessity defense’s four prongs: he “believed that his actions were necessary to avoid or minimize the immediate harms of global change to the Earth”; he presented evidence that the harm sought to be avoided was greater than the harm he and other protestors created; he did not bring about the harm he sought to prevent; and he believed he had exhausted all legal alternatives and that no other reasonable alternative existed. State v. Taylor, No. 6Z0117975 (Wash. Dist. Ct. Mar. 13, 2018).

Montana Court Sentenced “Valve Turner” to Deferred Imprisonment

On March 22, Climate Defense Project announced that its client Leonard Higgins had been sentenced two days earlier by a Montana court to three years deferred imprisonment for participating in the coordinated “valve turner” protests in 2016. The court also ordered Higgins to pay $3,755.47 in restitution, less than the $25,630 requested by the pipeline company for costs incurred in responding to the protest. CDP also said it was pursuing an appeal of the court’s denial of Higgins’s request to present a necessity defense. State v. Higgins, No. DC-16-18 (Mont. Dist. Ct. Mar. 20, 2018).

NEW CASES, MOTIONS, AND NOTICES

Amended Complaint with New Standing Allegations Filed to Challenge Trump “Two-for-One” Order

After the federal district court for the District of Columbia ruled that it lacked jurisdiction to hear a challenge to President Trump’s Executive Order on “Reducing Regulation and Controlling Regulatory Costs” because the plaintiffs did not have standing, the plaintiffs sought leave to file an amended complaint. The court granted the plaintiffs’ motion on April 20. The plaintiffs asserted, among other things, that the new complaint’s allegations and supporting declarations regarding the Department of Energy’s failure to establish new energy-efficiency standards demonstrated the standing of two of the plaintiffs. The defendants did not oppose the motion, stating that while they believed the motion could be denied as futile under Rule 15, “given the important issues presented in this litigation, and in the interests of efficiency,” the issue of standing should be resolved through a Rule 12 motion to dismiss. The defendants must file their motion to dismiss by May 14. Public Citizen, Inc. v. Trump, No. 1:17-cv-00253 (D.D.C. motion for leave to amend Apr. 2, 2018).

Environmental Groups, California, and New Mexico Unsuccessfully Sought to Lift Stay on Waste Prevention Rule Requirements in Wyoming District Court, Tenth Circuit Stay Requests Still Pending—Meanwhile BLM Appealed to Ninth Circuit to Reverse Injunction Barring Delaying of Rule’s Requirements

Environmental groups and two states (California and New Mexico) that intervened on behalf of the federal respondents to defend the U.S. Bureau of Land Management’s Waste Prevention Rule appealed a Wyoming federal district court’s order staying implementation of the rule’s “phase-in provisions.” They moved in the Tenth Circuit for a stay pending appeal and also asked the district court to stay its order pending appeal; they argued that their members and citizens would suffer irreparable harm “from the irreversible loss of publicly-owned natural gas and associated emissions of harmful air pollution” and that the court was without authority to enjoin the regulations without having determined that the rule’s challengers had met the four prerequisites for a preliminary injunction. Two states (Wyoming and Montana) and industry groups challenging the rule, as well as the federal respondents, opposed the motion for stay pending appeal. In addition, Wyoming and Montana moved in the Tenth Circuit to dismiss the appeals of the stay order on the grounds that the district court’s order was not reviewable. On April 30, the district court denied the motion for a stay pending appeal. The court found that the intervenors were unlikely to succeed on the merits of their appeal because the court had acted within the “broad discretionary authority” conferred by Section 705 of the Administrative Procedure Act “upon a reviewing court to preserve the status quo where irreparable injury would otherwise result.” The court also found that the intervenors had overstated the harm that would result from the stay of the Waste Prevention Rule’s phase-in provisions and that the public interest was best served by a stay of those requirements. Wyoming v. U.S. Department of the Interior, No. 2:16-cv-00285 (D. Wyo.); 18-8027, 18-8029 (10th Cir.).

In a related case in which a California federal court granted motions in February for a preliminary injunction barring BLM from enforcing its rule delaying provisions of the Waste Prevention Rule, the federal respondents filed an appeal in the Ninth Circuit on April 23. California v. U.S. Bureau of Land Management, No. 3:17-cv-07186 (N.D. Cal.); No. 18-15711 (9th Cir.).

Environmental Groups Challenged NEPA Compliance for Oil and Gas Lease Auctions in Western Colorado

Five environmental groups filed a lawsuit in the federal district court for the District of Colorado challenging the U.S. Bureau of Land Management’s (BLM’s) approval of 53 oil and gas lease parcels on public lands in the Upper Colorado River Basin in western Colorado. The plaintiffs alleged that BLM failed to adequately consider and disclose environmental impacts, including climate impacts, and had therefore failed to comply with the National Environmental Policy Act (NEPA). The alleged shortcomings in the environmental review included an alleged failure to take a hard look at direct, indirect, and cumulative greenhouse gas emissions that would result from lease auctions; the plaintiffs said there was no analysis of any site-specific greenhouse gas emissions or their climate change effects, and that the resource management plans and environmental impact statements (RMP-EIS) on which determinations of NEPA adequacy were based also failed to sufficiently analyze such impacts. The complaint also asserted that the RMP-EISs relied on outdated science with respect to methane’s global warming potential, which resulted in understating the magnitude of impacts, and that the RMP-EISs failed to analyze whether opening new sources of emissions was consistent with global, U.S., regional, and state carbon budgets. Wilderness Workshop v. U.S. Bureau of Land Management, No. 1:18-cv-00987 (D. Colo., filed Apr. 26, 2018).

Exxon Filed Notice of Appeal of Dismissal of Lawsuit Against New York and Massachusetts Attorneys General

Exxon Mobil Corporation (Exxon) filed a notice of appeal on April 20, 2018, three weeks after the federal district court for the Southern District of New York dismissed the company’s lawsuit seeking to bar the New York and Massachusetts attorneys general from pursuing their investigations of Exxon’s climate change-related disclosures. Exxon Mobil Corporation v. Schneiderman, No. 1:17-cv-02301 (S.D.N.Y. Apr. 20, 2018).

Sierra Club Sued EPA to Compel Disclosure of Communications of New Hires with EPA Administrator and External Parties

Sierra Club filed a Freedom of Information Act lawsuit against the U.S. Environmental Protection Agency (EPA) to compel it to respond to four requests for agency records submitted between June 2017 and January 2018. Sierra Club said the requests were for communications between seven new employees in the Office of the Administrator and EPA Administrator Scott Pruitt or third parties and were in connection with four “troubling practices,” including “[i]nappropriate and possibly illegal use of EPA staff time to covertly lobby for the United States’ withdrawal from the Paris Climate Agreement and other policy changes” and “[p]olitically motivated changes to factual information about climate change on EPA’s website.” Sierra Club alleged that each of the seven new hires “lacks prior experience or expertise in environmental protection and instead has a strong connection with anti-EPA organizations, companies, or politicians.” Sierra Club v. EPA, No. 3:18-cv-02372 (N.D. Cal., filed Apr. 19, 2018).

Colorado Local Governments Sued Fossil Fuel Companies for Climate Change Damages

Three Colorado local government entities—the City of Boulder and the Boards of County Commissioners of Boulder and San Miguel Counties—filed a lawsuit against fossil fuel companies seeking damages and other relief for the companies’ role in causing climate change. The local governments alleged they already had suffered and incurred expenses to respond to climate change-related harms stemming from increased and more serious heat waves, wildfires, droughts, and floods, and that these harms would worsen over time. They asserted that the defendants—Exxon Mobil Corporation and affiliates of Suncor Energy Inc.—“knowingly and substantially contributed to the climate crisis by producing, promoting and selling a substantial portion of the fossil fuels that are causing and exacerbating climate change, while concealing and misrepresenting the dangers associated with their intended use.” The plaintiffs asserted causes of action for public nuisance, private nuisance, trespass, and unjust enrichment, as well as a claim of deceptive trade practices under the Colorado Consumer Protection Act. They asked the court to award them monetary relief as compensation for their past and future damages and for costs to mitigate climate change’s impacts and also sought remediation or abatement of the hazards by “practical means,” though the complaint expressly disclaimed requests to enjoin oil and gas operations or sales, to enforce emissions controls, relief related to injuries on federal lands, or relief based on defendants’ lobbying activities. Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.), Inc., No. 2018CV030349 (Colo. Dist. Ct., filed Apr. 17, 2018).

Eight Young Floridians Filed Climate Change Lawsuit Against State of Florida

Eight Florida residents, all age 19 or younger, filed a lawsuit in Florida state court alleging that the State of Florida, the Florida governor, and other state officials and agencies violated their fundamental rights to a stable climate system under..

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By Romany Webb and Jessica Wentz

The latest round of United Nations (UN) climate change talks got underway yesterday – April 30 – at the seat of the secretariat to the UN Framework Convention on Climate Change (UNFCCC) in Germany. The so-called “intersessional” talks, which take place each year midway between the annual Conference of the Parties to the UNFCCC, are intended to advance discussion on implementing the 2015 Paris Agreement. Meetings will be held by the Ad Hoc Working Group on the Paris Agreement, as well as the UNFCCC subsidiary bodies for implementation (SBI) and scientific and technological advice (SBSTA).

A key focus of the SBSTA meeting will be on developing guidelines for implementing Article 6 of the Paris Agreement. That article – often termed the “cooperative approaches provision” – establishes a framework under which Parties to the Paris Agreement may cooperate on actions to mitigate climate change. This has the potential to benefit developing countries, leading to increased funding for their climate change mitigation projects. Care must, however, be taken to ensure that those projects do not adversely affect local communities or infringe on individuals’ human rights. Recognizing this, in their submissions to SBSTA, several Parties have called for action to ensure the protection of human rights.

To inform discussions on this issue, the Sabin Center is today publishing a working paper, which explores different approaches to ensuring human rights are protected in the context of Article 6. We identify three key approaches:

  • The adoption of social and environmental safeguards for the Article 6 cooperative approaches that resemble (but ideally improve upon) the types of safeguards adopted for the CDM and other project finance mechanisms.
  • The establishment of guidelines aimed at ensuring that a portion of the revenue from the cooperative approaches is channeled to countries and communities where climate change poses the greatest risk to human rights.
  • The incorporation of human rights considerations into the overarching implementation guidelines for the Paris Agreement.

While none of these approaches is expressly required by the Paris Agreement, they are implicitly authorized by language in the preamble calling upon Parties to respect, promote, and consider human rights when acting on climate change. How the Parties will do that remains to be seen.

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By Romany Webb

The New York Independent System Operator (NYISO) – the entity responsible for managing New York’s electric grid – is currently undertaking a major review to determine whether and how a carbon price could be integrated into wholesale electricity markets. This is widely seen as necessary to harmonize markets with state policies aimed at decarbonizing electricity generation. To achieve that goal, the state has provided certain renewable and nuclear generators with out-of-market payments, intended to reflect their low-carbon attributes. Concerned that those payments may distort the wholesale electricity market – e.g., by causing uneconomic generators to remain in operation instead of retiring – NYISO has proposed “internalizing” the value of low-carbon generation by adopting a carbon price.

To explore possible approaches to carbon pricing, NYISO and state officials have convened a task force, which is expected to develop a proposed carbon pricing scheme by December 2018. While details of the scheme are still being discussed, NYISO has suggested that generators be required to pay a carbon fee, which would be calculated based on their carbon dioxide emissions per megawatt hour of generation, multiplied by a uniform (per ton) carbon price. How that price should be set has generated much debate among stakeholders.

One approach to setting the carbon price was explored in a white paper published by the Sabin Center last year. The paper suggested basing the carbon price on the federal government’s social cost of carbon (SCC), which is intended to reflect the “economic damages associated with . . . carbon dioxide.” As noted in the paper, the SCC is a “robust metric,” having been “developed using technical models, with input from multiple government departments and the public.” It is consistent with the carbon prices used internally by many electric utilities and has been adopted by various regulators to value carbon. For example, in its Clean Energy Standard, the New York Department of Public Service (NYDPS) used the SCC to derive the value of “zero-emissions credits” that are intended to compensate nuclear generators for their zero carbon attributes.

NYDPS will also be responsible for setting the carbon price used in wholesale markets and, consistent with its previous approach, appears to support basing that price on the SCC (with certain adjustments). At a stakeholder meeting on Monday, April 23, NYDPS staff presented the following table of carbon prices:

  Gross SCC RGGI price Net SCC
$ nominal / ton $ nominal / ton $ nominal / ton
2020 $47.30 $6.56 $40.74
2025 $57.48 $9.09 $48.39
2030 $69.32 $12.55 $56.77

Staff suggested that the “Net SCC” value be applied to generators participating in the Regional Greenhouse Gas Initiative (RGGI). As part of RGGI large generators (with a capacity of at least 25 megawatts) are required to purchase carbon dioxide emissions allowances through quarterly auctions.  To ensure that those generators do not pay for the same emission twice, the carbon price imposed on them would be calculated based on the SCC, less the RGGI allowance price. Other generators, which do not participate in RGGI, would be subject to the full SCC.

While support for this approach was expressed by some stakeholders, others argued that use of the SCC is inappropriate, particularly given the Trump administration’s recent statement that it “no longer representative of government policy.” Many questioned whether, in these circumstances, the Federal Energy Regulatory Commission (FERC) would consider use of the SCC to be just and reasonable. (As previously discussed on this blog, FERC is responsible for overseeing wholesale electricity markets to ensure they deliver reliable services at just and reasonable rates, and will review any carbon pricing scheme proposed by NYISO to ensure it meets that standard.)

The answer to that question will ultimately depend on how the carbon pricing scheme is framed. NYISO and NYDPS have, to date, framed the scheme as a way to “harmonize the state’s energy policy and the efficient operation of . . . wholesale markets.” Adopting a carbon price based on the SCC is entirely consistent with that goal. As noted above, the SCC has been used extensively in formulating energy policy, and even formed the basis of the out-of-market payments carbon pricing is intended to address. Adopting a carbon price based on the SCC is, therefore, arguably just and reasonable. Whether it will also be acceptable to stakeholders remains to be seen.

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