New York Law Journal - Michael B. Gerrard* | Edward McTiernan*
Under Barack Obama, climate litigation was mostly industry and red states seeking to block regulations. And now under Donald Trump, it is largely about environmental groups and blue states trying to preserve the rules adopted under President Obama, and to seek novel remedies to get around federal hostility to action on climate change.
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| Michael B. Gerrard and Edward McTiernan |
Litigation about climate change took off in the early 2000s.
Its focus
has varied with the occupant of the White House.
Under George W. Bush,
most suits were brought by environmental groups and blue states,
frustrated by the lack of federal action, seeking to push regulations or
impede fossil fuel projects.
Under Barack Obama, climate litigation was
mostly industry and red states seeking to block regulations.
And now
under Donald Trump, it is largely about environmental groups and blue
states trying to preserve the rules adopted under President Obama, and
to seek novel remedies to get around federal hostility to action on
climate change.
More than 100 lawsuits were filed in the United States
in 2017 raising claims concerning either the impacts of climate change
or reducing greenhouse gas emissions; 82 of them were specifically about
federal deregulation.
These suits are all tracked on a website we
maintain,
www.climatecasechart.com.
Challenging Obama-Era Regulations
The
Clean Power Plan, the Obama Administration’s premier climate rule, was
aimed chiefly at reducing the burning of coal to generate electricity.
The Supreme Court stayed the rule in February 2016 pending the final
conclusion of legal challenges.
The U.S. Court of Appeals for the
District of Columbia Circuit heard argument en banc in September 2016.
But President Trump campaigned on a pledge to repeal the rule, the
Environmental Protection Agency (EPA) has begun the necessary rulemaking
process to do so, and meanwhile the D.C. Circuit is holding the case in
abeyance.
Industry has filed several lawsuits challenging standards for
energy efficiency, refrigeration, vehicular emissions, and renewable
fuels.
One notable case was
Mexichem Fluor v. EPA, a challenge
to an EPA rule prohibiting certain uses of hydroflourocarbons (a group
of chemicals that are powerful greenhouse gases).
In August 2017, the
D.C. Circuit partially vacated the rule on the grounds that it exceeded
EPA’s statutory authority. 866 F.3d 451 (D.C. Cir. 2017).
In January
2018, the court denied reconsideration and rehearing, which had been
sought by several manufacturers of substitute chemicals, and by
environmental groups.
Both sides of the climate fight have launched
suits under the Freedom of Information Act and its state counterparts
seeking documents held by public entities.
Environmental groups have
filed several lawsuits seeking action on various petitions that were
filed with the Obama Administration but never finally acted upon.
Challenging Trump-Era Deregulation
The
Trump Administration is seeking to revoke virtually all Obama-era
climate-related rules.
Most of these actions are being challenged in
court as soon as they become ripe for litigation.
The principal issues
being raised in these cases are:
- Were proper procedure followed, especially for public input?
- Was sufficient reason given for changing policy?
- Was the change consistent with underlying statutes?
Several
cases challenge stays and postponement of compliance dates for Obama
Administration rules, or the withdrawal, delay or failure to publish
rules that were in process when President Trump effectively imposed a
freeze on new environmental rules.
A few of these cases have been
decided.
In
Clean Air Council v. Pruitt, concerning an EPA rule
on methane leaks from oil and gas operations, the D.C. Circuit found
that the administration could not delay the effective date of the rule
without going back through the Administrative Procedure Act process. 862
F.3d 1 (D.C. Cir. 2017).
In
State of California v. Bureau of Land Management,
the court enjoined BLM’s suspension of a rule concerning the venting,
flaring and leakage of natural gas, finding that BLM’s reasoning behind
the suspension “is untethered to evidence contradicting the reasons for
implementing the rule.” No. 17 cv-07186 (N.D. Cal. Feb. 22, 2018).
Another decision (not explicitly about climate change, but involving a
key program aimed at reducing energy use) found that the Department of
Energy was improperly delaying energy efficiency standards for certain
home appliances and industrial equipment.
Natural Resources Defense Council v. Perry,
No.v17-cv-03404 (N.D. Cal. Feb. 15, 2018).
Most of these challenges are
procedural; if they succeed they will slow down deregulation efforts
but not necessarily stop them entirely, though of course if there is a
change in control of Congress after this November’s midterm elections,
deregulation could be further impeded.
Challenging Fossil Fuel
Multiple
suits challenge fossil fuel projects, such as natural gas pipelines and
liquefied natural gas facilities.
The most common claim is that climate
change was not sufficiently considered in violation of the National
Environmental Policy Act (NEPA).
Especially significant in this category
is
Sierra Club v. Federal Energy Regulatory Commission, which
held that FERC’s consideration of a natural gas pipeline running through
Alabama, Georgia and Florida needed to consider the greenhouse gases
that would be emitted downstream when the gas is burned. 867 F.3d 1357
(D.C. Cir. 2017).
Several other cases are pending that raise this issues
of downstream emissions and cumulative analysis.
Challenges have also
been filed to the leasing of onshore and offshore lands and National
Monument lands for fossil fuel development.
On the other hand, several
project applicants have sued states for denying permits for natural gas
pipelines and coal export terminals.
Failure to Adapt to Climate Change
Litigation is beginning to emerge challenging the failure to adapt to the climate change that is coming.
Most notable is
Conservation Law Foundation v. Exxon Mobil,
which alleges that an oil terminal near Boston Harbor has not taken
sufficient action to protect against oil spills that might be caused by
coastal storms. No. 16-cv-11950 (D. Mass.).
The suit has survived a
motion to dismiss and is now being further litigated.
The same
plaintiffs have also filed a similar suit against Shell Oil in Rhode
Island.
Claims are also being asserted in NEPA lawsuits about failure to
consider climate impacts in environmental impact statements for
infrastructure projects.
Money Damages Against Fossil Fuel Companies
Several
suits were brought in the late 2000s and early 2010s based on the
federal common law of nuisance, seeking money damages from fossil fuel
companies for injuries allegedly cause by climate change.
All these
cases were dismissed, primarily on the grounds that the federal common
law of nuisance was displaced by the Clean Air Act.
However, whether
state common law claims are preempted or otherwise available remain open
questions.
Since July 2017 a rash of new cases have been filed under
state common law nuisance and other doctrines—eight brought by
California counties and cities, plus one by the City of New York.
Some
of these suits seek general money damages; some seek compensation for
building sea walls and other protections against sea level rise.
All of
them are in their early stages.
On February 27, the U.S. District Court
for the Northern District of California ruled that the cases brought by
San Francisco and Oakland should stay in federal court, and suggested
that the federal common law of nuisance applies to them because of the
global nature of the challenged actions.
The Exxon Litigation Industry
In
2015, following several journalistic investigations, New York Attorney
General Eric Schneiderman announced he was investigating Exxon Mobil
under the Martin Act, New York’s blue sky securities law.
This law had
been used by his predecessors Eliot Spitzer against several Wall Street
firms, and Andrew Cuomo against electric utilities and Peabody Energy, a
big coal company.
Massachusetts Attorney General Maura Healey launched a
similar investigation.
The two states subpoenaed extensive records from
Exxon and its accountants, PricewaterhouseCoopers (PwC).
The New York
Court of Appeals declined to hear PwC’s claims that its papers enjoyed
an accountant-client privilege. No. 2017-862 (N.Y. Sept. 12, 2017).
Exxon has fought back on multiple fronts.
It sued Attorneys General
Schneiderman and Healey in federal court in Texas saying the
investigations were politically motivated and improper.
That suit was
transferred to the U.S. District Court for the Southern District of New
York, where it is now pending.
Exxon is also challenging Ms. Healey’s
investigation in Massachusetts state court.
Exxon has also started a
proceeding in Texas seeking pre-lawsuit discovery against the lawyers
representing the California cities and counties in the public nuisance
litigation mentioned above.
This too seems to be aimed at establishing
that the lawsuits are politically motivated.
Exxon also complained that
while the cities and counties that are suing them said they are
threatened by sea level rise, some of their municipal bond disclosures
were silent about this threat.
Constitutional and Public Trust Litigation
Our
Children’s Trust, a group based in Oregon, helped organize several
lawsuits around the country asserting that the ancient public trust
doctrine applies to the atmosphere and requires governments to take
steps to protect against climate change.
Most of these suits were
dismissed, but one has gotten traction.
In
Juliana v. United States,
the U.S. District Court in Oregon denied a motion to dismiss, found
that the public trust doctrine may have a constitutional basis in
substantive due process, allowed discovery to proceed, and set a trial
for February 5, 2018.
See 217 F. Supp. 3d 1224 (D. Or. 2016).
When the District Court denied defendants leave to appeal, they started a
mandamus proceeding in the Ninth Circuit, which stayed the litigation
and heard oral argument on December 11.
A decision is now awaited.
Several other constitutional suits have also been filed around the
United States.
Decisions have been rendered by courts in the
Netherlands, Norway, Pakistan, South Africa, and Colombia and the
Inter-American Court of Human Rights finding that various
constitutional, human rights, international law, and other doctrines may
apply to climate change; some but not all of these decisions have
granted substantive relief.
*Michael B. Gerrard is a professor and
Faculty Director of the Sabin Center for Climate Change Law at Columbia
Law School, and Senior Counsel to Arnold & Porter.
*Edward McTiernan,
a partner in Arnold & Porter, is former General Counsel of the New
York Department of Environmental Conservation.
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