Public Citizen lawsuit seeks to require Texas Commission on Environmental Quality to regulate greenhouse gases
On Tuesday, the environmental group Public Citizen filed a lawsuit against the Texas Commission on Environmental Quality (“TCEQ”) seeking to require it to regulate carbon dioxide and other greenhouse gases. The lawsuit is believed to be the broadest attempt so far to force a state to control greenhouse gases through the permits granted by a state for power plants, refineries, factors, and similar industrial facilities. Public Citizen’s filing is most likely timed to coincide with Congress’ consideration of landmark climate change legislation and the December 2009 United Nations Climate Change Conference in Copenhagen.
Continue Reading...Second Circuit reversal in Connecticut v. American Electric Power enables significant climate change litigation to proceed
In a long-awaited decision, the US Court of Appeals for the Second Circuit has reversed the district court's decision in Connecticut v. American Electric Power Co. (“AEP”), a public nuisance lawsuit filed by eight state attorneys general, the City of New York, and three land trusts against six electric power companies based on greenhouse gas emissions. District Court Judge Loretta Preska originally dismissed the lawsuit on the grounds that it presented non-justiciable political questions, finding that the case required “identification and balancing of economic, environmental, foreign policy, and national security interests” of a “transcendently legislative nature.”
The unanimous two-judge ruling (more on that below) vacated and remanded Judge Preska’s ruling, holding – in a hefty 139 pages – that:
“(1) Plaintiff-Appellants’ claims do not present non-justiciable political questions; (2) Plaintiffs-Appellants have standing to bring their claims; (3) Plaintiffs-Appellants state claims under the federal common law of nuisance; (4) Plaintiffs-Appellants’ claims are not displaced; and (5) the discretionary function exception does not provide Defendant-Appellee Tennessee Valley Authority with immunity from suit.”
Continue Reading...Lawsuit alleges California's cap-and-trade plan fails to minimize GHG emissions
A lawsuit by several environmental advocacy groups against the California Air Resources Board (CARB) (09-509562) continues to wend its way through the San Francisco Superior Court, with a scheduled hearing on the Environmental Defense Fund’s motion to file an intervening complaint being the next step in the litigation. The complaint alleges that the agency’s plan fails to minimize greenhouse gas emissions and protect vulnerable communities, which contravenes the Global Warming Solutions Act of 2006 (AB 32). The complaint also alleges violations of the California Environmental Quality Act (CEQA).
The lawsuit has garnered significant attention because of its focus on an emissions trading program proposed by the agency. The lawsuit could be viewed as foreshadowing similar challenges to federally implemented cap-and-trade programs. Even if cap-and-trade and similar programs win the approval of mainstream environmental activists, they can still face major legal challenges by smaller groups.
Continue Reading...Tennessee Valley Authority ordered by EPA to revise permit for coal-fired plant
The US Environmental Protection Agency has sided with environmental groups, including the Sierra Club and the Center for Biological Diversity, and ruled that a permit for a Tennessee Valley Authority coal-fired plant in Drakesboro, Kentucky failed to account for air pollution (specifically the greenhouse gas nitrogen oxide) in violation of the Clean Air Act. Parties have until October 9 to seek judicial review of the EPA’s order, or state regulators will have until October 27, 2009 to submit a revised permit in response.
Continue Reading...Ohio Edison agrees to repower coal plant with biomass, reducing carbon emissions
Ohio Edison Company has agreed, as part of a consent decree, to retrofit one of its coal-fired power plants to use primarily biomass. The agreement was reached in federal court in the Southern District of Ohio and announced by the US Justice Department and the US Environmental Protection Agency last month. The agreement originates from a lawsuit filed in 1999 against Ohio Edison for violations of the Clean Air Act. The original lawsuit was resolved with a consent decree in 2005, which mandated that the company reduce the emissions of sulfur dioxide (SO2) and nitrogen oxide (NOx). In order to accomplish this goal, the 2005 consent decree left Ohio Edison with only three options: close the plant, install a scrubber or repower with natural gas. The new, modified consent decree, however, opts for what the parties believe will be a more cost-efficient and environmentally sound fourth option.
Continue Reading...Recent DC Circuit decision limits standing of private parties to sue over climate change
The Court of Appeals for the District of Columbia Circuit recently issued an opinion in Center for Biological Diversity v. United States Department of the Interior (“CBD”). In the suit, three non-profit activist groups and one tribal government sued the Department of the Interior for failing to account for climate change when deciding to grant oil and gas leases off the Alaska coast. The ruling creates a hurdle for parties filing climate change based lawsuits. In the opinion, the DC Circuit holds that the petitioners lacked “substantive” standing to pursue their National Environmental Policy Act (NEPA) and Endangered Species Act (ESA) claims, though it did find that they had established procedural standing. The ruling also sets out specific limits on the application of the Supreme Court’s most recent decision on the regulation of greenhouse gases, Massachusetts v. EPA.
Continue Reading...Georgia court ruling regarding Longleaf Energy coal plant reversed
The Georgia Court of Appeals last week reversed and remanded a Superior Court decision that would have required Best Available Control Technology (BACT) for carbon dioxide emissions from a proposed new coal power plant. The $2 billion Longleaf Energy Plant would be the first new coal plant in Georgia in more than two decades. GreenLaw, the Sierra Club and other environmental groups sought to block the plant’s construction based on the US Supreme Court’s ruling in Massachusetts v. EPA allowing greenhouse gases to be regulated under the Clean Air Act. Construction was halted in June 2008 when Fulton County Superior Court Judge Thelma Wyatt Cummings Moore ruled that federal air pollution laws require permits for all pollutants that could be regulated under the federal Clean Air Act - including carbon dioxide. Judge Moore’s ruling invalidated the Longleaf Energy Plant’s permit, and was the first time a judge applied the Massachusetts v. EPA carbon dioxide holding to emissions from an industrial source.
With federal legislation to regulate CO2 and other greenhouse gases pending, the Appeals Court held that Judge Moore's order would pre-empt federal efforts to regulate the gas, require the state to invent new regulations and ultimately lead to "a regulatory burden on Georgia never imposed elsewhere."
Continue Reading...Desert Rock power plant owner challenges EPA request to remand permit in order to consider requiring technology to control GHG emissions
On June 11, 2009 owners of the Desert Rock Energy Facility – a new 1500 megawatt coal-fired power plant on the Navajo Nation tribal reservation in New Mexico – argued to the EPA Administrative Appeals Board that the agency will violate the Clean Air Act if it is allowed to consider requiring the plant to use low-carbon-dioxide gasification technology.
On April 27, 2009, the EPA asked the Environmental Appeals Board (EAB) for a voluntary remand of the permit in order to provide the EPA an opportunity to consider requiring integrated gasification combined cycle technology (IGCC) as best available control technology (BACT) at the Desert Rock plant. Specifically, the EPA has said that it is reconsidering the Bush administration's stance that the Clean Air Act’s prevention of significant deterioration (PSD) provisions do not apply to greenhouse gas emissions. According to Desert Rock, the EPA’s remand request violates Section 165(c) of the Clean Air Act, which requires the EPA to grant or deny a PSD permit within a year of filing the permit request by the applicant. Also, EPA regulations (40 C.F.R. Part 124) prohibit EPA from withdrawing a permit after the EAB has granted a petition for review.
Continue Reading...California v. General Motors: State moves to voluntarily dismiss climate change lawsuit against major automakers
On Friday, June 19, the California Attorney General’s Office voluntarily dropped its appeal to the Ninth Circuit in California v. General Motors Corp. to review the lower court’s dismissal of the state’s public nuisance lawsuit against six major automobile companies. The lawsuit was originally filed in the Northern District of California in 2006 by then-Attorney General Lockyer, alleging that the automakers’ cars were a substantial source of greenhouse gas emissions, which caused climate change, resulting in millions of dollars in damages to the state, including increased air pollution, a decline in the snowpack, and coastal erosion.
The automakers – General Motors, Ford, Chrysler, and the North American outlets of Toyota, Honda and Nissan – filed early motions to dismiss, which the District Court granted in September 2007 on the grounds that the issues raised were “political questions” which were reserved for the President and Congress, and not issues that the Court could, or should, resolve at that time.
Continue Reading...CBD lawsuit seeking ESA protection of sea turtles due to climate change the latest attempt at regulation through litigation
Co-authored with Amy Garber.
The failure of the US to define its climate change policy through legislation and rulemaking has once again resulted in an attempt by environmental groups to force global warming policy through litigation. Plaintiffs Center for Biological Diversity (CBD), Turtle Island Restoration Network and Oceana Inc., have filed a complaint alleging violations of the Endangered Species Act (ESA) and Administrative Procedure Act based upon allegations that the habitat of the leatherback and loggerhead sea turtles is being destroyed by climate change. The case, Center for Biological Diversity et al v. Locke et al, which is docketed in the Northern District of California, seeks declaratory and injunctive relief requiring the government to protect the turtles and their habitat from the effects of climate change.
Continue Reading...
Polar bear "special rule" remains; trend toward climate change "regulation by litigation" likely to follow suit
"The Endangered Species Act is not the proper tool to deal with a global issue - global warming," said Secretary of the Interior Ken Salazar on May 8, in announcing that the administration would retain the Bush era “special rule” under section 4(d) of the ESA, aimed at protecting the polar bear. Despite Salazar’s proclamation, however, environmental advocates are increasingly predicating climate change-based lawsuits on the ESA. Lawsuits seeking protection for specific animals, such as the Pika and the Alaskan Kittlitz’s Murrelet, focus on the indirect effects of global warming on those animals. Other lawsuits use the ESA as a platform to advocate against climate change on a much more general level. The ESA lawsuits are part of a larger trend toward “regulation by litigation,” in which environmental advocates have sought to regulate greenhouse gas emissions through lawsuits based on a host of US laws, such as the Energy Policy and Conservation Act, the Clean Air Act, the Energy Policy Act of 1992, the Administrative Procedure Act, the National Environmental Policy Act (“NEPA”), the Federal Land Policy and Management Act (“FLPMA”), and the Mineral Leasing Act (“MLA”).
Continue Reading...CBD lawsuit challenges Obama's new fuel economy standards
The Obama administration recently announced new fuel economy standards, which would push average fuel economy requirements to 27.3 mpg for all vehicles. This represents only a 7% increase from 2010. Under the new regulations, passenger cars would have to reach 30.2 mpg and light trucks 24.1 mpg. This modest change was not enough for environmental group the Center for Biological Diversity (CBD), which has challenged the requirements by filing a lawsuit against the National Highway Traffic Safety Administration (NHTSA) and the Department of Transportation in federal court.
CBD has asked the Ninth Circuit to find that the administration violated the Energy Policy and Conservation Act which requires that miles-per-gallon standards be set at the maximum feasible level. The CBD alleges that the Obama rule is much lower than current standards in Europe, Japan, China, and other countries, and is thus clearly not at the maximum feasible level.
Continue Reading...Energy companies settle Clean Air Act claims by agreeing to spend $6M on pollution reducing technology
Six energy companies have agreed to spend nearly $6.4 million to install pollution reducing technology to settle claims that they violated the Clean Air Act. Lawyers with the Department of Justice filed the proposed consent decrees with the federal district court in Salt Lake City on Friday, April 17th. While not admitting to any Clean Air Act violations, the companies also agreed to pay a combined $632,000 in civil penalties.
The companies, Bill Barrett Corp.; Miller, Dyer & Co.; Whiting Oil and Gas Corp.; Wind River Corp.; XTO Energy Inc.; and Dominion Exploration and Production, Inc., operate natural gas production facilities including wellheads, pipelines, and compressor stations on remote parts of the Uintah and Ouray Indian Reservations in Utah. According to complaints filed by the Justice Department concurrently with the proposed consent decrees, the companies violated the CAA by exceeding emissions standards for hazardous air pollutants, failing to monitor and report those emissions, and failing to obtain proper permits in connection with their natural gas production operations.
Continue Reading...CBD seeks ESA protection of Kittlitz's murrelet
The Center for Biological Diversity has filed a scientific petition with the Alaska Department of Fish and Game to protect an Alaskan seabird under Alaska’s Endangered Species Act. The Center claims that the seabird, a species known as Kittlitz’s murrelet, faces extinction due to threats from global warming.
The Kittlitz’s murrelet is only the latest species that the Center has sought to add to the endangered species list due to perceived effects from global warming. Recently, the US Fish and Wildlife Service agreed to determine whether the American pika warrants protection from global warming effects under the Endangered Species Act by May, 2009, settling a lawsuit filed by the Center for the agency’s failure to make the determination in the required statutory period. Emboldened by its success, the Center vowed to commit even greater resources to similar climate litigation.
Continue Reading...Ninth Circuit hears argument in lawsuit urging higher minimum efficiency standards for electricity distribution transformers
On March 9, 2009, the United States Court of Appeals for the Ninth Circuit heard oral arguments in People of California v. US Dept. of Energy, a lawsuit brought by the state of California, Earthjustice, the Sierra Club and the Natural Resources Defense Council (NRDC) against the US Department of Energy (DOE) to adopt stronger energy efficiency standards for electricity distribution transformers. Amongst other things, Petitioners argue that, by rejecting a proposal for stronger efficiency standards, DOE failed to "achieve the maximum improvement in energy efficiency" that is "technologically feasible and economically justified," as required by the Energy Policy and Conservation Act (EPCA) and the Energy Policy Act of 1992. In support of this argument, they allege that DOE failed to account for the monetary benefits of reducing carbon dioxide pollution. (Listen to California v. DOE Ninth Circuit oral arguments.)
Continue Reading...EAB remands several issues in Ripley Heating Plant dispute; decision suggests regulation of CO2 under Clean Air Act
On February 18, the Environmental Appeals Board (EAB) issued a decision remanding several issues and denying review of others, in response to a Sierra Club petition regarding a permit authorizing Northern Michigan University to construct a boiler at the Ripley Heating Plant on its Marquette, Michigan Campus. The Michigan Department of Environmental Quality (MDEQ) issued the permit on May 12, 2008, after issuing a draft permit for public review and comment in October 2007. On June 13, 2008, the Sierra Club filed a petition for review which challenged seven aspects of the MDEQ decision and response to comments. In particular, the Sierra Club petition addressed several aspects of MDEQ’s analysis of Best Available Control Technology (BACT), as well as MDEQ’s air quality analysis. The EAB held that MDEQ “clearly erred” in selecting SO2 limits, because it did not follow the EPA New Source Review Manual or other relevant guidelines.
Continue Reading...Kansas judge takes Sunflower arguments under advisement; Legislature may moot ruling
*Updated 2/23/09 - added link to administrative proceeding opinion.
Oral arguments on a motion filed by Governor Kathleen Sebelius to dismiss a lawsuit filed by Sunflower Electric Power Co. were heard earlier this month in US District Court for the Federal District of Kansas. That ruling may be moot, however, as the Kansas Legislature is considering a bill (SB 265) that would limit the state’s environmental regulators from enforcing air quality standards in excess of federal limits. The legislature also considered a proposal to allow Sunflower to resubmit its request for air quality permits to build the new coal-fired plants. The Republican-led legislature passed three bills previously permitting the construction of the plants to go forward, but the Governor rejected the bills and the legislature failed to override the Governor’s veto.
Continue Reading...New EPA Administrator partially grants Sierra Club petition toward Agency regulation of CO2 in PSD permits
On February 17, 2009, US EPA Administrator Lisa Jackson partially granted a petition by the Sierra Club to reconsider the prior EPA Administrator’s late 2008 interpretative memorandum excluding carbon dioxide, and other monitored but uncontrolled pollutants, from Prevention of Significant Deterioration (“PSD”) permit program requirements. While Administrator Jackson opted against a complete stay of the memorandum, she announced her intention to open a public comment period regarding the PSD issue. This clearly is a move by EPA toward potential regulation of carbon dioxide as a “pollutant” under the Clean Air Act, which the Bush Administration had infamously resisted. A Sierra Club organizer was quoted as saying that the Jackson letter “should halt virtually all new coal plant development until the EPA decides how to handle global warming pollution.”
Continue Reading...US Fish and Wildlife Service to consider climate change protection for Pika under ESA
The US Fish and Wildlife Service has agreed to determine whether the American Pika warrants protection from global warming effects under the Endangered Species Act by May 2009. If the Service determines that protection is warranted, it has nine months to decide whether the pika should be designated an endangered species. This agreement is part of a settlement resolving a lawsuit filed against the Service in August 2008 by the Center for Biological Diversity. The Center alleged that the Service had improperly failed to take action on an October 1, 2007 petition to evaluate whether the pika was an endangered species due to rising temperatures. At the time the lawsuit was filed, the Service had fallen nearly eight months behind the legal deadline to evaluate the petition.
Continue Reading...Center for Biological Diversity to devote $17 million to climate litigation and advocacy over five years
The Center for Biological Diversity (CBD) today announced the launch of its San Francisco-based Climate Law Institute. The stated mission of the Institute is to bring a strong climate focus to the Center’s five program areas -- Biodiversity, Public Lands, Oceans, Urban Wildlands, and International – in what the Center calls a “coordinated strategy to protect species and ecosystems from the sweeping and potentially catastrophic effects of warming.” The Center states that it is “dedicating” $17 million to this effort over the next five years.
What does the Center mean by a “coordinated strategy”? Apparently more climate-based litigation, and more administrative and regulatory action designed to serve as bases for additional climate-based litigation. The Institute states it will accomplish its mission through: strategic, creative litigation; scientific petitions to protect species; administrative and policy advocacy; and public education and outreach.
Continue Reading...Center for Biological Diversity follows ESA climate change rulemaking petition with litigation
*Co-authored with Amy Garber.
On January 15, 2009, the Center for Biological Diversity (“CBD”) filed a complaint in the US District Court for the District of Columbia against the US Environmental Protection Agency (EPA) and the Interior, Commerce, Agriculture, Transportation, and Defense Departments, seeking declaratory and injunctive relief. In its complaint, CBD claimed that those federal agencies had violated the Administrative Procedure Act by failing to make merits determinations within a “reasonable” amount of time in response to a petition filed by CBD on February 1, 2007. The petition, entitled “Endangered Species and Global Warming Initiative: An Administrative Procedure Act Petition to Enhance the Recovery of Endangered Species and Address the Growing Impacts of Global Warming on Imperiled Species,” proposed a series of specific modifications to federal regulations at 50 C.F.R. Parts 17, 402, and 424 to require analysis and mitigation of federal actions “that impact the relationship between global warming and endangered plants and animals.”
Continue Reading...Friends of Earth climate change lawsuit nearing settlement
*Updated 2/9/09 - added links to text of proposed settlement agreements.
A groundbreaking global warming lawsuit is now on the verge of settlement in the Northern District of California. The lawsuit, Friends of the Earth, Inc., et al. v. Spinelli (Case No. 3:02-cv-04106, sometimes referred to as Friends of the Earth v. Watson), was originally filed in 2002 against the Overseas Private Investment Corporation (“OPIC”) and the Export-Import Bank of the United States (“Ex-Im”). The Plaintiffs – Friends of the Earth, Inc. (a non-profit environmental advocacy organization), Greenpeace, Inc. and the cities of Boulder (CO), Oakland (CA), Arcata (CA) and Santa Monica (CA) – claimed that OPIC and Ex-Im – federal agencies providing loans, insurance or other assistance for fossil fuel projects around the globe – funded projects without complying with the requirements of the National Environmental Policy Act (“NEPA”).
Text of proposed agreements:
The case originally made headlines in August, 2005 when the Court determined that the Plaintiffs had the legal right to bring suit against OPIC and Ex-Im for funding projects in other areas of the world because United States cities could be affected by global warming effects from these projects. “This was the first court opinion that said greenhouse gas emissions in Chad and Saudi Arabia could have an effect on the environment of the United States,” said Sue Ellen Harrison, the assistant city attorney for plaintiff city Boulder, Colorado.
Continue Reading...Environmental group sues Bureau of Land Management for failing to consider greenhouse gas emissions in granting oil and gas leases
The Western Environmental Law Center (“WELC”) has filed suit in New Mexico federal court against the Bureau of Land Management (“BLM”), alleging that the agency’s 2008 grant of 92 oil and gas leases in New Mexico violated federal law by failing to address greenhouse gas emissions. The complaint also alleges that the Bureau failed to adopt policies designed to make drilling more efficient. This lawsuit, along with a similar complaint filed by WELC in Montana in December, is among the first to use greenhouse gas emissions as a basis for challenging oil and gas leases in the west. Named plaintiffs in the suit are Amigos Bravos, the Natural Resources Defense Council (NRDC), and members of the Oil and Gas Accountability Project.
Continue Reading...EAB ruling in In re Deseret Power Electric Cooperative opens door to a new regulatory era on climate change
The USEPA Environmental Appeals Board (EAB) issued a potentially groundbreaking decision in In re Deseret Power Electric Cooperative (PSD Appeal No. 0703) by ruling that EPA Region 8 was incorrect when it exempted a new coal fired unit at an existing Utah power plant from limiting carbon dioxide emissions and remanded the permit decision to the Region to reopen the record and reconsider its refusal to impose limits on carbon-dioxide emissions. In its November 13 decision the EAB rejected the Region 8 contention that it was not required to regulate carbon dioxide because the greenhouse gas, while a “pollutant” under the Clean Air Act, was not subject to current regulatory standards. (“We hold that this conclusion is clearly erroneous because the region’s permitting authority is not constrained in this matter by authoritative agency interpretation.”)
Continue Reading...Lawsuits seek protection of American pika as endangered species due to climate change
Alleging a failure of regulators to declare the American pika an endangered species based on the impact of climate change, the Center for Biological Diversity on August 19 filed lawsuits in California state and federal court seeking injunctive relief. To combat the perceived deleterious effects of global warming on the pika, the Center is seeking protection of the animal under the California Endangered Species Act and the federal Endangered Species Act. However, regulators have not been so quick to adopt the Center’s position and this reluctance has resulted in two lawsuits.
Continue Reading...NGOs charged with playing larger role in climate regulation and climate litigation
Non-governmental organizations (“NGOs”) have historically taken an active role in the development and enforcement of environmental laws in the United States in an approach that some refer to as “regulation by litigation.” Given their concerns about global climate change, and the absence of federal legislative activity and enforcement, NGOs are calling for more unified and effective litigation tactics in an attempt to force action on climate policy.
Continue Reading...Law professor's novel advocacy of public trust doctrine in climate litigation faces hurdles
A University of Oregon law professor has urged the use of the public trust doctrine to address climate change issues. Professor Mary C. Wood, speaking at the March 2008 Public Interest Environmental Law Conference, advanced what she refers to as “atmospheric trust litigation” as a new legal strategy in climate change litigation. She asserted that the atmosphere is an asset owned in common by the people and the government is the trustee of that asset. Her theory is “part of a roadmap for citizens to bring suit against their government.” Professor Wood says relief would come through declaratory judgments and “injunctive backstops” in which a court would require the government to show that “it’s reducing carbon in accordance with the scientifically defined fiduciary obligation.
Continue Reading...Endangered Species Act becoming a key battleground in climate change regulation and litigation
The newly-filed American Petroleum Institute, et al. v. Kempthorne, et al. lawsuit, as well as recently proposed regulatory changes to the Endangered Species Act (“ESA”) confirm that the ESA is becoming a key battleground over the use of existing legislative and regulatory tools to atttempt to regulate greenhouse gases.
Continue Reading...Federal failure to regulate greenhouse gas emissions alleged by new climate lawsuit
On July 31st, Western Environmental Law Center attorney Dan Galpern is expected to announce what a press release describes as "a new lawsuit targeting the Bush administration's unlawful refusal to regulate certain major sources of global warming pollution." The announcement will occur during the eight-day Oregon Climate Convergence.
Continue Reading...International climate discussions and the political question defense
The first three major tort-based climate change lawsuits against alleged greenhouse gas emitters were dismissed in part because they raised non-justiciable political questions (all three cases are currently on appeal). For example, the district court in Conn. v. Am. Elec. Power Co., Inc. rejected a public nuisance case brought by 8 state attorneys general against 5 power companies based on the companies’ greenhouse gas emissions. The court held that the case was non-justiciable because it required “identification and balancing of economic, environmental, foreign policy, and national security interests” of a “transcendently legislative nature.”
Recent events offer added support for advocates of the political question defense in climate-based tort litigation:
Continue Reading...