California requires greenhouse gas emissions to be part of environmental impact calculus
Greenhouse gas emissions are officially factors to be considered in determining the environmental impact of local projects in California. On December 30, 2009, the California Natural Resources Agency adopted amended guidelines to aid public agencies and developers in complying with the California Environmental Quality Act (CEQA). The guidelines expressly provide that greenhouse gas emissions are included in the environmental impact calculus under CEQA.
CEQA is the California equivalent to the federal National Environmental Policy Act (NEPA). Like NEPA, CEQA requires state and local agencies to conduct environmental reviews before undertaking certain projects. However, CEQA has unique procedural and substantive requirements. The new guidelines are therefore essential to ensuring that state and local agencies are familiar with the state requirements.
The California legislature began the path to including greenhouse gas emissions in CEQA after passing the Global Warming Solutions Act of 2006 (AB 32). AB 32, inter alia, mandates a reduction in greenhouse gas emissions by 2020. Soon after the passage of AB 32, many lawsuits against public agencies and developers arose based on greenhouse gas emissions issues. In response, the California legislature adopted SB 97, which required the CRA to amend the guidelines to aid public agencies and developers in complying with AB 32. After the submission of amendments, the CRA had until January 1, 2010 to adopt the new guidelines. Accordingly, the new guidelines expressly provide for the consideration of greenhouse gas emissions. For example, one section describes how to determine the “significance” of potential greenhouse gas emissions.
The guidelines also describe how to create a plan for reducing greenhouse gas emissions. The “Environmental Checklist Form” for new projects now includes categories for the project’s effect on greenhouse gas emissions. In the CRA’s Final Statement of Reasons, the CRA emphasizes that the amended guidelines will not adversely affect businesses. The CRA asserts that the guidelines will provide greater certainty to CEQA analysis, thereby reducing the costs of environmental analyses and litigation.
Greenhouse gas emissions are also becoming a concern on the national scale, as the White House Council on Environmental Quality is completing draft guidance to federal agencies in considering greenhouse gas emissions under NEPA.
US State Department sued over permit approval for "Alberta Clipper" tar sands oil pipeline
Four environmental and Native American advocacy groups have filed suit challenging the US State Department’s August approval of Enbridge Energy’s plans to build the Alberta Clipper tar sands pipeline. The pipeline would pump 450,000 barrels of tar sands oil per day from northern Alberta to Superior, Wisconsin for refining. In their complaint, the plaintiff groups claim that the State Department and the U.S. Army Corps of Engineers violated the US National Environmental Policy Act (NEPA) by failing to adequately analyze the indirect and cumulative impacts of the proposed pipeline. They further argue that the State Department’s approval was unconstitutional because Congress has not fully delegated its authority to regulate pipelines to the Executive Branch. Plaintiffs have requested preliminary and permanent injunctions to halt the construction of the pipeline.
The Alberta Clipper pipeline is planned to stretch 384 miles in the United States, running through Minnesota’s Chippewa National Forest and its Leech Lake tribal lands. Plaintiffs allege that the construction would impact over 200 water bodies and would destroy more than 1,200 acres of upland forested lands, more than 650 acres of open lands, and more than 1,300 acres of wetlands.
By approving the pipeline, the plaintiff groups allege that the State Department is overlooking the serious environmental, climate, and human health impacts of tar sands oil, the production of which results in three times more greenhouse gas emissions than that of conventional crude oil. Tar sands oil also contains eleven times more sulfur and nickel, six times more nitrogen, and five times more lead than conventional oil. Plaintiffs claim the approval decision is a departure from the Obama administration’s commitment to clean energy.
"This project will lock our nation into a dirty energy infrastructure for decades to come," said Sierra Club Executive Director Carl Pope. "Instead of increasing our reliance on oil and piping in pollution, the State Department should support clean, American energy and the jobs that come with it."
The complaint was filed on September 3, 2009 in the US District Court for Northern California. The suit names Secretary of State Hillary Clinton, Deputy Secretary James Steinberg and the US Army Corps of Engineers as Defendants. The plaintiff groups are The Indigenous Environmental Network, Minnesota Center for Environmental Advocacy, National Wildlife Federation and the Sierra Club. Plaintiffs are represented by the non-profit law firm Earthjustice.
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.
First, the CBD court found that Mass. v. EPA only applies to situations where a sovereign, such as a state, seeks to “assert its own rights as a state” and not the rights of its citizens. In the Supreme Court case, Massachusetts was able to claim that the EPA’s failure to regulate greenhouse gases was actually causing the diminution of shoreline which the state owned. The DC circuit thus held that Mass. v. EPA stood only for the proposition that “where a harm is widely shared, a sovereign, suing in its individual interest, has standing to sue where that sovereign’s individual interests are harmed, wholly apart from the alleged general harm.” The CBD court noted that since the tribal government plaintiff in their case did not actually own the offshore land that was directly affected, the holding in Mass. v. EPA did not extend to the analysis of their claim.
The court then analyzed whether the petitioners’ climate change claims could meet the traditional Article III standing test of showing “a concrete and particularized injury that is caused by, or fairly traceable to, the act challenged in the litigation and redressable by the court.” The court found that petitioners could not establish either injury or causation. Injury to the Arctic environment from climate change was first, too speculative, as it might occur at some point in the future, and second, too generalized, as it affected the world at large. Causation, according to the court, was too tenuous, as the chain of events between the leases and climate change involved too many third parties, such as oil companies and consumers.
This holding by the DC Circuit makes it more difficult for environmental groups to use the courts to address global warming. In addition to seriously curtailing the applicability of Mass. v. EPA, the opinion also indicates that generalized future “climate change” injuries, at least at present, will have a great deal of difficulty meeting Article III standing requirements.
Tenth Circuit allows Mountain Coal Company to intervene in NEPA challenge
In WildEarth Guardians v. United States Forest Service, the Tenth Circuit has reversed the United States District Court for the District of Colorado and allowed Mountain Coal Company to intervene in the Forest Service’s approval of plans to allow the venting of methane gas from “a large underground coal mine lying beneath the Grand Mesa, Uncompahgre, and Gunnison National Forests in Colorado.” Given the stated intent of a number of environmental groups to oppose coal projects on grounds including potential effects on climate, intervention decisions like the Tenth Circuit’s are an important tool for potentially affected companies to participate in those challenges.
WildEarth Guardians – an environmental group with a self-professed goal of “pounding away on the idea that the climate crisis mandates a serious curb in our use of fossil fuels” – sued the Forest Service and the Department of the Interior claiming that they violated NEPA by approving methane gas venting without evaluating: “(1) reasonable alternatives to methane venting, (2) measures to mitigate the environmental impact of methane venting, and (3) the global warming impact of methane venting.”
Mountain Coal moved to intervene of right or, in the alternative, permissively, on the side of the government. The District Court denied the motion to intervene on the ground that Mountain Coal was adequately represented by the government and had not demonstrated its interests would be impaired by the litigation.
The Tenth Circuit disagreed, finding that Mountain Coal, which had already begun construction of methane-drainage wells and mining at the site, has a “direct economic stake in the subject of the litigation,” and that if plaintiff succeeded on its declaratory or injunctive relief claims, “operation of the West Elk Mine will be impaired, or even halted.” The Court separately found the possibility that the government would not adequately represent the interests of Mountain Coal because its litigation goals may not match those of Mountain Coal and, therefore, Mountain Coal “should not be required to rely on the defendants to represent its interests.” The Tenth Circuit remanded the case with instructions to grant Mountain Coal’s motion to intervene.
Lawsuit challenges Bush-era energy corridor plan
Fourteen conservation groups and a Colorado county sued the federal government on July 7, alleging it violated environmental, property and energy laws in designating 6,000 miles of electricity transmission corridors on Western public lands. The lawsuit, filed in the US District Court for the Northern District of California, attempts to ensure that the designated corridors serve renewable sources more than fossil fuels and are built on environmentally sound locations.
The corridors were designated in January – just a week before the Bush administration left office. The plan covers 3.2 million acres of federal lands in 11 western states and creates a network of right-of-ways known as the “West-Wide Energy Corridor.” Plaintiffs argue that the Bush corridor plan ignores the renewable electricity standards that have been adopted by 9 of the 11 western states, which call for the increased use of the region’s wind, solar and geothermal resources. They allege that the corridors are convenient for moving electricity generated by coal plants and other fossil fuels, but do little to facilitate the production of renewable energy on public lands.
The lawsuit further contends that federal agencies violated several laws, including the Energy Policy Act of 2005, the National Environmental Policy Act (NEPA), the Federal Land and Policy Management Act, and the Endangered Species Act. The conservation groups claim that the Bush administration created the plan without considering environmental impacts, analyzing alternatives, weighing federal policies that support renewable energy, adhering to federal and local land-use plans or consulting with other federal agencies and local governments. The lawsuit also argues that the plan puts wildlife at risk and threatens iconic public lands such as Utah's Grand Staircase-Escalante National Monument and its Arches National Park and New Mexico's Sevilleta National Wildlife Refuge.
The suit names as defendants the Department of the Interior, the Department of Energy, and the Department of Agriculture. The plaintiffs include the San Miguel County in Colorado, the Center for Biological Diversity, Defenders of Wildlife, Great Old Broads for Wilderness, Klamath-Siskiyou Wildlands Center, National Parks Conservation Association, National Trust for Historic Preservation, Natural Resources Defense Council, Oregon Natural Desert Association, the Sierra Club, Southern Utah Wilderness Alliance, The Wilderness Society, Western Resource Advocates, and the Western Watersheds Project. The 11 western states impacted by the corridors are Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington and Wyoming.
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”).
The latest round of lawsuits may stem from the continuation of the polar bear exception, also known as the “Alaska Gap.” While the special rule aims to protect the polar bear, it applies only to activities in Alaska, and exempts the “incidental” effects of activities outside the state. Salazar had authority to revoke the rule until May 10, under the Omnibus Appropriations Act of 2009 . Salazar’s announcement came despite a large campaign against the rule. More than 1300 scientists, 53 law professors, 8 senators, U.S. representatives, California legislators, and Conservation organizations wrote letters to Salazar beseeching him to abandon the special rule. Now that he refused to use his authority to revoke the rule, environmentalists such as the Center for Biological Diversity have hailed Mr. Salazar’s decision “a gift to big oil.”
There has been considerable debate over the actual effects of global warming on the polar bear. Notably, the polar bears are already protected by protected by Title V of the Marine Mammal Protection Act, and international treaties such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora. The budget for Fiscal Year 2010 increases the funding for polar bear conservation efforts.
In a Missouri town hall meeting in late April, President Obama declared that the way to save the earth and the polar bears was to change things in “a smart, gradual way.” However gradual the Administration’s plan is, it is certain that the courts will be dealing with many attempts at regulation by litigation in the meantime.
Antelope Creek tar sands oil project challenged by environmental groups
The Sierra Club and the Indigenous Environmental Network have filed a complaint in a Utah federal court alleging that the proposed Antelope Creek tar sands oil project will disrupt wildlife, poison and dry up rivers, and harm human health with hazardous air pollutants – including greenhouse gas emissions. Specifically, the complaint states that the Department of the Interior and other defendants violated the National Environmental Policy Act (NEPA) and the Administrative Procedures Act (APA) by failing to prepare an Environmental Impact Statement (EIS) and failing to allow for public participation in the agency’s decision. The complaint alleges that the project anticipates the construction of 288 closely spaced new oil wells and will employ experimental thermal recovery methods. According to the Sierra Club, greenhouse gas emissions from tar sands production are three times those of conventional oil and gas production.
According to the complaint, approval of the Antelope Creek project was based on an Environmental Assessment (EA) conducted in 2003. The complaint states that NEPA requires the preparation of a more comprehensive EIS, and that an EA can only be relied upon if the proposed action will not significantly impact the environment. The plaintiffs allege that the EA prepared for the Antelope Creek project was not sufficient because, inter alia, it “failed to even attempt to characterize or address greenhouse gas emissions from the specific processes Petroglyph proposes to employ.”
An executive at Petroglyph Energy, the company proposing the Antelope Creek project, has issued a statement questioning the basis for the lawsuit. According to Petroglyph Energy executive vice president Paul Powell, “Petroglyph has not been approved for any permits to expand drilling in the area. No action has been initiated, and none is planned to take place. So, the lawsuit doesn’t make sense.” The Bureau of Land Management has not issued any permits to Petroglyph related to the project. According to Powell, “the proposed project was stopped when the permits were not approved.”
The Bureau of Land Management has jurisdiction over roughly 60% of the land at issue, while the rest of the land is administered under tribal authority. The Bureau of Indian Affairs is a named defendant in the complaint along with the Department of the Interior. Both are alleged to have violated NEPA by approving the project and issuing related permits.
Tar sands development has been largely concentrated in Canada to date, and is becoming one of the largest single emitters of greenhouse gases. Sierra Club estimates that tar sand production could increase greenhouse gases in the United States from 27 to 126 million tons by 2015.
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.
Refusing to dismiss the case on summary judgment, the court determined that standing existed because Plaintiffs had introduced evidence that: “(1) increased greenhouse gases are the major factor that caused global warming in the twentieth century, (2) global warming that has already occurred has had significant environmental consequences, (3) continued increases in greenhouse gas emissions would continue to increase global warming with consequent widespread environmental impacts, (4) and that these impacts have and will effect areas used and owned by Plaintiffs.”
Before commencing a project that could have environmental impacts, NEPA requires (1) a determination of whether the project will significantly affect the environment, and, if so, (2) the preparation of an Environmental Impact Statement (EIS) detailing the environmental effects and options for alternative actions. OPIC and Ex-Im had claimed they were not required to comply with NEPA requirements before funding projects.
Now, though the settlement agreement is subject to judicial approval, OPIC and Ex-Im have agreed to implement NEPA’s evaluation requirements for at least some of the projects the agencies fund. OPIC has agreed to subject “Category A” projects (those resulting in the emission of more than 100,000 tons of carbon dioxide) to federal regulations, report the greenhouse gas emissions of those projects and reduce the greenhouse gas emissions of those projects by 20 percent over the next ten years. Similar steps will be taken by Ex-Im’s officials to address the global warming effects of projects funded by the agency.
Similar lawsuits seeking to require consideration of greenhouse emissions before approving funding on projects have been filed in other countries, including Germany (Germanwatch v. German Federal Ministry of Economics and Labour) and Australia (including Australian NGOs v. Minister of Planning, in Melbourne Australia). Given the new administration’s tougher stance on global warming, it seems reasonable to assume that there will be an upsurge in these types of lawsuits in the coming years.
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.
WELC argues in its complaint that the agency’s grants of the leases were improper under the Federal Land Policy and Management Act (“FLPMA”), the Mineral Leasing Act (“MLA”), the National Environmental Policy Act (“NEPA”) and the Department of the Interior’s Secretarial Order 3226 (January 19, 2001). The citizen group plaintiffs base their standing to sue on the alleged impairment of their use and enjoyment of lands affected by the leases.
The complaint alleges that oil and gas exploration and operations release greenhouse gases on many fronts, including vented gases from machines, gasoline processing, and coal beds, gases released during transport and refining of oil and gas, and heat and electricity generation. The complaint suggests that gas released from these sources could cause the greenhouse gas concentration in New Mexico to reach a tipping point, a point at which global warming would start to accelerate at a rate beyond human control.
The WELC complaint seeks both declaratory and injunctive relief. It asks that the district court suspend, enjoin or void the leases until the Bureau of Land Management achieves full compliance with the applicable federal law. The complaint also asks that fees and costs be awarded to the plaintiffs.
