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On The Docket: Climate Change Litigation


Daily Report
September 19, 2007


A review of pending and recently decided global warming litigation:

CLEAN AIR ACT

Coke Oven Environmental Taskforce v. EPA, Nos. 06-1131, 06-1322 (D.C. Cir. filed Apr. 7, 2006). The petitioners asked the EPA to enforce Clean Air Act regulations against new stationary sources of greenhouse gas emissions such as power plants (as opposed to the mobile sources addressed in Massachusetts v. EPA). Part of Coke Oven was held in abeyance during the pendency of the Supreme Court’s consideration of Massachusetts v. EPA.

New York v. EPA, No. 02-1387 (D.C. Cir. filed Dec. 31, 2002). A coalition of 10 states and other entities challenged the EPA’s issuance of a final rule for new source review regulations under the Clean Air Act performance standards for new power plants. The coalition alleged that the revised standards do not regulate CO2 emissions despite evidence that they contribute to global warming. The case was held in abeyance pending the decision in Massachusetts v. EPA. The next status report is due in October.

United States v. Duke Energy Corp., 411 F.3d 539 (4th Cir. 2005), cert. granted sub nom. Envtl. Def. v. Duke Energy Corp., 126 S.Ct. 2019 (2006), decision 127 S. Ct. 1423 (2007). The EPA sued Duke for modifying a power plant without first obtaining a permit under the Prevention of Significant Deterioration, alleging that the modification caused an increase in air pollution. At issue was the Clean Air Act’s definition of an increase and of a modification. The 4th Circuit ruled that the EPA lacked the authority to require a permit; the U.S. Supreme Court vacated and remanded the case in April, siding with the EPA. Duke Energy is asking for a trial date, while the EPA says it anticipates filing a motion to vacate the earlier district court ruling.

Massachusetts v. EPA, 127 S.Ct. 1438 (2007). The high court held that the EPA may regulate greenhouse gas emissions from new vehicles as pollutants under the Clean Air Act.

Northwest Environmental Defense Ctr. v. Owens Corning Corp. , 434 F.Supp.2d 957 (D.Or. 2006). Environmental organizations filed a Clean Air Act enforcement suit against Owens Corning for failing to obtain a pre-construction permit for a facility that would emit gas that is both a greenhouse gas and an ozone-depleting substance. The district court denied Owens Corning’s motion to dismiss, finding that the plaintiffs had standing. The parties settled.

INFORMATION-FORCING LITIGATION

Citizens for Responsibility and Ethics in Washington v. Council on Environmental Quality, No. 07-CV-00365 (D.D.C. filed Feb. 20, 2007). The Citizens for Responsibility and Ethics allege that the Council on Environmental Quality failed to disclose documents related to global warming, and that the Council on Environmental Quality, a federal entity formed by the executive branch, has not justified that failure under an exception to the Freedom of Information Act. The FOIA request was meant to parallel an ongoing investigation by the House Committee on Government Reform into allegations that the defendant had censored and modified reports produced by government scientists. The defendant says it has produced approximately 16,000 pages of requested documents and is processing 27,000 more pages of documents.

Center for Biological Diversity v. Brennan, No. 06-CV-7062 (N.D. Cal. filed Nov. 14, 2006). The Center for Biological Diversity alleged that the Bush administration suppressed scientific research about climate change that is required by Congress under the Global Change Research Act of 1990 and that the administration failed to publish a required report on global change research. On Aug. 21, District Judge Saundra Armstrong issued an opinion saying the government had acted unlawfully and requiring officials to publish a research update by March 1, and a scientific assessment by May 31.

NATIONAL ENVIRONMENTAL POLICY ACT

Center for Biological Diversity v. Kempthorne, No. 07-CV-00894 (N.D. Cal. filed Feb. 13, 2007). Two environmental groups brought suit over incidental take (IT) regulations, alleging that the environmental assessment supporting them violated NEPA by failing to account for the combined impact that oil and gas exploration and global warming will have on polar bears and the Pacific walrus. IT laws allow oil and gas companies to incidentally take—which is defined as harassing, hunting, capturing or killing certain animals or harming their environments—while engaging in industrial activities in the Arctic only if such taking will have a “negligible impact.” In June, the judge granted a motion to transfer the case to the district court in Alaska; the new case number is 3:07-CV-00141.

Friends of the Earth v. Watson, No. 02-CV-4106 (N.D. Cal. filed Aug. 23, 2005) (the case was formerly known as Friends of the Earth v. Mosbacher). Friends of the Earth challenged the Export-Import Bank’s and the Overseas Private Investment Corp.’s financial support for overseas fossil fuel development, alleging a failure to consider the impact on global warming under NEPA and the Administrative Procedures Act. The agencies’ motion for summary judgment was denied. As of late July, both sides were petitioning the 9th Circuit related to an interlocutory appeal.

Natural Resources Defense Council v. Reclamation Board, No. 06CS01228 (Cal. Super. Ct. of Sacramento County, filed Aug. 18, 2006). The case alleges that the California Reclamation Board must consider how rising sea levels will affect the environmental impact of a mixed-use development slated to be built near a system of lowland islands. In April, the Superior Court issued a “tentative” ruling but the case has not yet reached final judgment.

Mayo Foundation v. Surface Transportation Board, 472 F.3d 545 (8th Cir. 2006). The 8th U.S. Circuit Court of Appeals found that the supplemental environmental impact statement for a rail extension project—which would result in an additional burning of 3 million tons of coal—did not violate NEPA because the overall impact on national coal consumption and greenhouse gas emissions was small. The Sierra Club and others had argued that few projects are likely to increase national or global greenhouse gas emissions by more than a few percent, and that the government failed to establish a threshold of significance for climate change and air pollution impact.

Minnesota Center for Environmental Advocacy v. Holsten, No. 31-CV-07-3338 (Dist. Ct. Itasca County, Minn., filed Sept. 10, 2007). In what is known as a “Little NEPA” suit, because it involves a state version of NEPA, an environmental group sued Minnesota’s Department of Natural Resources, alleging that an environmental impact statement prepared for a proposed taconite mine and steel mill was inadequate because it failed to consider the effect of the project’s CO2 emissions on global warming and did not address mitigation.

NUISANCE

California v. General Motors Corp., No. 06-CV-05755 (N.D. Cal. filed Sept. 20, 2006). California sued the “Big Six” automakers for their greenhouse gas emissions. Rather than seeking equitable relief and emissions curbs, the state requested compensation for current and future expenditures related to global warming. On Monday, U.S. District Judge Martin J. Jenkins dismissed the case, while allowing California’s state law nuisance claim to be re-filed in state court. Jenkins wrote that the matter presented a political question.

Open Space Inst. v. American Elec. Power Co. , No. 05-5104 (2d Cir. filed Sept. 22, 2005). Eight states, one city and three land trusts sued several power companies claiming their greenhouse gas emissions contributed to global warming, creating a public nuisance. The district court ruled in Connecticut v. American Electric Power, 406 F.Supp.2d 265 (S.D.N.Y. 2005), that the issue was a political question; plaintiffs appealed and the case was consolidated with Open Space Inst. v. American Elec. Power Co. , No. 04-CV-05670 (S.D.N.Y. filed July 21, 2004). The appeal has been argued.

State of N.C. v. Tennessee Valley Authority, No. 06-2131 (4th Cir. filed Oct. 25, 2006). After the EPA denied his petition asking it to use the Clean Air Act to force upwind coal-fired power plants to cut their emissions, North Carolina’s attorney general sued TVA over its emissions. An interlocutory appeal is pending in the 4th Circuit; the case is set for argument in October.

Comer v. Murphy Oil, No. 05-CV-436 (S.D. Miss. 2006). A putative plaintiff class alleged in a nuisance action that oil, coal and chemical companies contributed via their greenhouse gas emissions to the intensification of Hurricane Katrina and the resulting damage. The suit was dismissed Aug. 30 on constitutional standing and political question grounds. On Monday, plaintiffs’ attorney F. Gerald Maples filed a notice of appeal to the 5th U.S. Circuit Court of Appeals.

Korsinsky v. EPA, 192 F. App’x. 171 (2006). The plaintiff filed a nuisance claim against the EPA, New York state and New York City, alleging that their greenhouse gas emissions contributed to global warming. The district court found that the plaintiff lacked standing, and the 2nd Circuit affirmed in an unpublished opinion.

PRE-EMPTION

Center for Biological Diversity v. NHTSA, No. 06-71891 (9th Cir. filed April 6, 2006). The Center for Biological Diversity challenged the National Highway Traffic Safety Administration when, in its release of new fuel efficiency standards, it implied that state regulation of vehicular greenhouse gas emissions would be pre-empted. The case was argued to a three-judge panel in May.

Central Valley Chrysler-Jeep v. Witherspoon, No. 04-CV-6663 (E.D. Cal. 2004). Automobile manufacturers and dealers alleged that California’s regulation of motor vehicles’ greenhouse gas emissions is pre-empted by the Energy Policy and Conservation Act and under the implied federal foreign affairs power. They alleged that the state standard could be met only by making cars more efficient, which would interfere with federal authority to regulate fuel economy. The district court denied the state’s motion for judgment on the pleadings, and the case, which had been stayed during the pendency of Massachusetts v. EPA, is proceeding.

Engine Mfrs. Ass’n v. S. Coast Air Quality Mngt. Dist. , 309 F.3d 550 (9th Cir. 2002), vacated by 541 U.S. 246 (2004), dec’d No. 05-CV-09065 (C.D. Cal. Oct. 7, 2005), appealed No. 05-56654 (9th Cir. filed Oct. 29, 2005). The Engine Manufacturers Association argued that rules requiring entities that operated a large fleet of vehicles to purchase the least-polluting vehicles available were pre-empted by the Clean Air Act’s requirements that the federal government alone may set standards “related to” automobile emissions. The district and circuit courts found the restrictions were not pre-empted; the U.S. Supreme Court vacated and remanded the case, the majority said it was likely that at least certain aspects of the rules were pre-empted. On remand, the district court dismissed the suit, finding in particular that the restrictions were not pre-empted in the state and local governmental entity context. The manufacturers appealed, and in August the 9th Circuit affirmed the district court determination on the rules governing decisions by state and local governments but remanded for the district court to examine whether other provisions of the rules were pre-empted.

Lincoln Dodge v. Sullivan, No. 06-CV-0070 (D.R.I. filed Feb. 13, 2006). Automobile dealers and manufacturers allege that Rhode Island’s regulation of motor vehicles’ greenhouse gas emissions is pre-empted by the Energy Policy and Conservation Act and under the implied federal foreign affairs power. A decision is pending.

Green Mountain Chrysler v. Crombie, No. 05-CV-302 (D.Vt. filed Nov. 18, 2005), sub nom. Green Mountain Chrysler v. Dalmasse, No. 05-CV-302 (D.Vt. filed Nov. 30, 2006). Automakers alleged that Vermont’s greenhouse gas emissions standards, which resemble California’s, are pre-empted by the Energy Policy and Conservation Act and under the implied federal foreign affairs power. On Sept. 12, the court found that the state law was not pre-empted because when a state adopts a greenhouse gas emissions standard under the Clean Air Act, it does so with the express sanction of the EPA. The court also found that the automakers had not proved compliance was unattainable and that they could meet their average fleet fuel economy standards by producing alternative-fueled vehicles. Lawyers for the automakers have indicated they are considering an appeal.

OTHER

Center for Biological Diversity v. San Bernardino County, No. CIV-SS-07-00293 (Cal. Super. Ct. of San Bernardino County, filed April 11, 2007). Environmental groups have sued San Bernardino County, alleging that its long-term growth plan violates the California Environmental Quality Act by not factoring in global warming impacts of growth. The case is calendared for a status hearing in October but likely won’t be heard until next year.

State of California v. San Bernardino County, No. CIV-SS-07-00329 (Cal. Super. Ct. of San Bernardino County, filed Apr. 13, 2007). This suit filed by the state settled Aug. 21. Like the suit above, it alleged that the county’s long-term growth plan violated the Environmental Quality Act by not factoring in global warming impacts of growth. It also alleged that the county failed to assess how the plan would affect the state’s ability to meet its emissions reduction targets under Assembly Bill 32. The settlement requires the county to inventory its sources of greenhouse gases and to set a target for reducing emissions attributable to discretionary land use and government operations.

Orekson v. City of Seattle, 150 P.3d 556 (Wash. 2007). Seattle ratepayers sued the city’s public utility, challenging its use of greenhouse gas emissions offsets. The utility had mitigated its own greenhouse gas emissions by paying public and private entities to reduce theirs. The state’s Supreme Court sided with the plaintiffs, finding that the offset program was prohibited by state utility law because it served a general governmental purpose and was not “sufficiently related to the purpose of supplying electricity.”

Sources: Court filings, Community Rights Counsel, Georgetown Environmental Law & Policy Center, The Marten Law Group, Perkins Coie, Simpson Thacher & Bartlett, Matthew F. Pawa of the Law Offices of Matthew F. Pawa, P.C., Kevin Reuther of the Minnesota Center for Environmental Advocacy, the California Attorney General’s Office and San Bernardino County.

—Compiled by Janet L. Conley

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