As the first step in full-blown litigation over EPA's endangerment finding for GHG emissions, a group of agriculture, mining, and energy interests has filed a petition for review with the United States Court of Appeals for the District of Columbia.
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According to a report in The Bismarck Tribune, the state of North Dakota appears prepared to sue Minnesota over a carbon tax that is set to begin in Minnesota in 2012. North Dakota Attorney General Wayne Stenehjem said, “It is very likely that we will be suing the state of Minnesota,” as Minnesota’s PUC is prepared to add a fee of anywhere between $4 and $34 per ton of CO2 to the “cost of electrical generation starting in 2012.”
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The Alston & Bird Energy & Sustainability Litigation Team recently prepared an Energy & Sustainability Litigation Advisory titled “Bombshells in Climate Change Litigation: Two Major New Cases Expose Greenhouse Gas Emitters to Potential Liability.”
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On September 21, 2009, a panel of the United States Court of Appeals for the Second Circuit issued a decision that may dramatically shift the liability profile of every entity associated with notable greenhouse gas (GHG) emissions—potentially including utilities; coal, natural gas, and oil companies; industrial gas users and manufacturers; entities with significant vehicle fleets; and auto manufacturers. In Connecticut v. American Electric Power Co., the court held that federal courts are competent to hear—and states, municipalities, and private entities uniquely vulnerable to climate change may bring—federal public nuisance claims seeking to enjoin the activity of an entity whose activities contribute to climate change.
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In July 2008, a number of environmental groups filed suit against the Virginia Air Pollution Control Board over air permits issued for a coal-fired power plant, alleging, among other things, that state regulators improperly failed to conduct a pollution control analysis for carbon dioxide emissions at the Virginia City Hybrid Energy Center before issuing the permits. Earlier this week, Judge Margaret Spencer, a circuit court judge in Richmond, Virginia, ruled in favor of state regulators on the issue, upholding the board’s issuance of the facility's Prevention of Significant Deterioration (PSD) permit despite the absence of a CO2 emissions analysis. The ruling was not all bad news for the environmental groups, however, as the judge tossed out the plant’s maximum achievable control technology (MACT) permit due to an “escape hatch” provision based on mercury emission levels.
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February 6, 2009 2:03 PM | Posted by brittany.summers@alston.com | Topic(s): Litigation
A Texas appeals court ruling last week allows construction of a coal-fired power plant to continue. The court rejected an appeal from environmental groups which argued that the state failed to consider the best technology available to reduce pollutants under the Clean Air Act. Read More
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January 23, 2009 2:11 PM | Posted by brittany.summers@alston.com | Topic(s): Litigation
The Center for Biological Diversity (CBD) has sued six federal agencies for failing to respond to its petition proposing regulatory changes aimed to improve the endangered species program and increase consideration of global warming. The CBD originally submitted the petition to seven agencies, including the Environmental Protection Agency (EPA), in February 2007. Read More
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California Attorney General Jerry Brown has sued the Department of Interior, the Department of Commerce, the Fish and Wildlife Service, and the National Marine Fisheries Service in an attempt to block revisions to regulations implementing the Endangered Species Act (ESA). Read More
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Last week, a federal judge in Rhode Island ended a challenge by General Motors, Chrysler, and other automobile trade groups attempting to block Rhode Island’s vehicle greenhouse gas (GHG) emission standards. The automobile industry sought a declaration that the Rhode Island regulations were preempted by less-stringent standards set by the Environmental Protection Agency (EPA) under the federal Clean Air Act (CAA). The district court judge found that the issues had already been decided in two previous cases in Vermont and California and issued a judgment against the automobile manufacturers and associations.
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In a battle that has lasted well over a year, Sunflower Electric Power Corporation has sued the state of Kansas for refusing—on the basis of CO2 emissions—to issue the air quality permits necessary to build two coal-fired power plants. The lawsuit, filed on Nov. 18, 2008, asks a federal court to stop Kansas officials from blocking Sunflower’s attempt to build the power plants. Read More
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October 28, 2008 3:38 PM | Posted by Brittany Summers | Topic(s): Litigation
The 7th U.S. Circuit Court of Appeals handed the Sierra Club a win yesterday by blocking EnviroPower, LCC from building a coal-fired power plant in southern Illinois. EnviroPower received permits for the plant in 2001 from the Illinois EPA, but failed to commence construction within 18 months of receiving the permits.
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A settlement reached in federal court in California will require the Fish and Wildlife Service to designate critical habitat for polar bears. Habitat protections for the polar bears must be finalized within two years under the settlement. The settlement is a piece of a larger lawsuit filed by the Center for Biological Diversity, the Natural Resource Defense Council and Greenpeace. That suit is expected to be heard early next year.
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Northern Michigan University (NMU) has intervened in support of the Michigan Department of Environmental Quality Air Quality Division (MDEQ) in a PSD (Prevention of Significant Deterioration) permit challenge brought against the MDEQ by the Sierra Club. The permit challenge is presently before the EPA’s Environmental Appeals Board in Washington, D.C.
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A coalition of environmental justice groups has sued the City of Richmond, California, for giving public approval to the overhaul and upgrade of a Chevron oil refinery in the area. According to the City's description of the project, the retooling would not increase the refinery's capacity, but would allow the plant to use a wider variety of crude oils.
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Twelve U.S. States, the District of Columbia, and the City of New York have sued the EPA for failing to promulgate regulations controlling GHG emissions from oil refineries. The lawsuit, filed in the U.S. Court of Appeals for the District of Columbia Circuit, arises from EPA's June 24, 2008, revision of the standards governing oil refineries under the Clean Air Act's New Source Performance Standards (NSPS). NSPS regulations govern the emission control technologies that must be implemented by new or modified sources of air pollutants.
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August 21, 2008 4:17 PM | Posted by Patrick Greissing | Topic(s): Litigation
The Georgia Court of Appeals decided yesterday that it would grant a petition to review a previous ruling by the Fulton County Superior Court regarding a coal-fired power plant. In the previous ruling, Judge Thelma Wyatt Cummings Moore rejected air permits that the state had issued for a 1,200 MW coal-fired power plant at the Longleaf Energy Station. The review by the Georgia Court of Appeals gives the plant developers, Dynegy and LS Power Group, hope that there is still a chance for the plant to be built.
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August 15, 2008 2:18 PM | Posted by ben.snowden@alston.com | Topic(s): Litigation
The controversy over New Mexico's proposed Desert Rock coal-fired power plant continues. On July 31, EPA Region IX approved a Clean Air Act permit for the plant, mooting a pending lawsuit against EPA by the project's proponents. Now a group of environmental NGOs, who had previously moved to intervene in the lawsuit, have petitioned EPA's Environmental Appeals Board to reverse the permitting decision.
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The United States Chamber of Commerce has come out in support of a bill, HR 6666. The bill, if it passes through Congress, would amend the Clean Air Act so that carbon dioxide and other greenhouse gases are not able to be regulated. It would amend the Clean Air Act to read, “The term ‘air pollutant’ shall not include carbon dioxide, water vapor, methane, or chloroflourocarbons.” It would in effect overturn the Supreme Court’s ruling from a year ago in Massachusetts v. EPA, which held that the Environmental Protection Agency (EPA) must regulate GHG emissions under the Clean Air Act if it finds that those emissions are reasonably likely to endanger public welfare.
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On July 31, EPA Region IX issued a final decision to approve a Clean Air Act permit for the Desert Rock Power Plant, a proposed coal-fired facility in New Mexico. The 1500-megawatt facility is to be located on a Navajo reservation in the Four Corners area.
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Yesterday, the nation’s leading legal watchdog for property rights, Pacific Legal Foundation, announced their intent to sue the federal government over its May 2008 decision to list the polar bear as "threatened" under the Endangered Species Act (ESA).
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In response to the EPA’s failure to respond to petitions requesting regulations on GHG emissions from ships and aircraft, a coalition of conservation groups and numerous states and jurisdictions announced their plans yesterday to sue EPA.
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Reversing course from its previous position on the issue, the United States Ninth Circuit Court of Appeals has dismissed California's lawsuit challenging U.S. EPA's denial of the state's request for a waiver under the Clean Air Act to regulate automobile greenhouse gas emissions. Read More
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On July 15, 2008, the District Court of Finney County, Kansas, dismissed two lawsuits filed by Sunflower Electric Power Corporation challenging the Kansas Department of Health and Environment's (KDHE's) denial of air quality permitting for two coal fired power plants because of potential harm to the environment and human health resulting from the proposed plants' carbon dioxide emissions.
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In a highly controversial move, a Georgia state court has revoked the air permit previously issued by the state for a new coal-fired plant in the state, the first in 20 years. The legal issue turned on whether CO2 is “subject to regulation” under the Clean Air Act.
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On Monday, June 23, a federal district judge in California ruled that automobile manufacturers should not be allowed extra time to comply with a California law regulating greenhouse gas emissions, if and when EPA grants the state a waiver to implement the rules.
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The battle over a coal fired power plant in Georgia is taking place in the Fulton County Superior Court. Environmental groups allege that the decision of the Georgia Environmental Protection Division to permit the construction of a power plant was flawed for many reasons, but one of the most intriguing claims is that the permit was wrongly issued because it does not regulate carbon dioxide emissions.
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Last week, when the Interior Department declared the polar bear as a "threatened" species, it was clear that legal action would soon follow. As part of the "threatened" listing, the Interior Department also declared they would not allow the regulation of greenhouse gas emissions. It is this part of the ruling that has environmental groups taking the Bush administration to court. Among the groups that have filed suit over the polar bear listing as "threatened" are the Center for Biological Diversity, the Natural Resource Defense Council and Greenpeace. Kassie Siegel, from the Center for Biological Diversity, said, "The Endangered Species Act requires the government to identify and then eliminate threats to a species. The administration's attempt to create an exemption for greenhouse gas emissions, the primary threat to the polar bear, violates both logic and the law."
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Sen. Inhofe (R-OK), ranking member of the Environment and Public Works Committee, released a white paper today detailing the potential negative impacts of the Lieberman-Warner bill becoming law. In a press release concerning his white paper, Inhofe says, "It seems unlikely that, as American families face harsh economic times, any Senator would dare stand on the Senate Floor three weeks from now and vote in favor of significantly increasing the price of gas at the pump and legislation that would cost millions of American jobs.” The white paper takes into account the recent government and private sector analyses of the bill, and points out the negative impact the bill would have on GDP, job loss and an increase in energy prices, as well as an increase in gas prices. On top of releasing the white paper, Sen. Inhofe created a website that is dedicated to the negative impacts of the legislation. The website is:
www.epw.senate.gov/lieberman-warnerbillexposed.
To view the white paper, go to:
http://epw.senate.gov/public/index.cfm?FuseAction=Files.View&FileStore_id=84039130-6b2d-4cbc-85df-929d6e938d90
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The Environmental Protection Agency (EPA)'s request to dismiss California's suit against them over its denial of California's waiver claim to limit greenhouse gas emissions from automobiles has been rejected by the U.S. Court of Appeals for the Ninth Circuit. California not only is involved in this suit that can proceed, but also has another suit pending in D.C. Circuit court. The ruling by the Ninth Circuit sets up a schedule that would require California to have their opening brief completed by May 14. EPA's response to California would be due June 16 and the state's reply two weeks later.
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Multiple states and environmental groups filed suit today against the U.S. Environmental Protection Agency which would force the EPA to write new regulations regarding carbon dioxide emissions from motor vehicles. The lawsuit comes on the year anniversary of the Supreme Court ruling on Massachusetts v. Environmental Protection Agency. The lawsuit would require the EPA to issue a determination on whether carbon dioxide affects human health within 60 days. If they deem CO2 is harmful to public health, the EPA would be required to create a regulatory framework for controlling CO2 from motor vehicles based on the Supreme Court ruling from a year ago.
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March 4, 2008 10:26 AM | Posted by Patrick Greissing | Topic(s): Litigation
Appalachian Voices and Canary Coalition filed a lawsuit against top ranking Bush Administration officials in U.S. District Court to attempt to stop the federal government from subsidizing nine new coal-fired power plants. The suit asks the court to "revoke or suspend" close to $1 billion in tax credits that would go to the companies building the plants. The suit also claims that the Department of Energy did not follow the National Environmental Policy Act when selecting the plants to receive the credits. Appalachian Voices and Canary Coalition believe that the plants will increase air pollution and global warming. It is highly unlikely that this suit would survive a motion to dismiss.
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February 27, 2008 1:53 PM | Posted by Patrick Greissing | Topic(s): Litigation
The city of Kivalina, Alaska and the Native Village of Kivalina have filed a lawsuit against multiple oil and power companies. The lawsuit claims that the greenhouse gases emitted by these companies have contributed to global warming factors that have caused great trouble for the city and its people. Sea ice which normally protects the community from big storms has been forming later and melting earlier due to the rising temperatures, which has also caused great amounts of erosion. Due to the limited sea ice, storms have also been battering the coast line and the city itself. City Administrator Janet Mitchell said, "We are seeing accelerated erosion because of the loss of sea ice. We normally have ice starting in October, but now we have open water even into December so our island is not protected from the storms." Exxon Mobil Corporation, one of the main targets in the suit, declined comment until it could completely review the complaint. Some of the other companies named in the suit include: Chevron, ConocoPhillips, BP PLC, Peabody Energy, Duke Energy, DTE Energy and Shell Oil.
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Yesterday the Center for Biological Diversity, Greenpeace and the Natural Resources Defense Council served their 60 day notice of intent to sue the U.S. Fish and Wildlife Service over its failure to proceed with a listing decision for the polar bear under the Endangered Species Act. A final listing decision from Fish and Wildlife was due today, but agency officials indicated earlier this week that they would miss the deadline, citing the large volume of public comments – over 600,000 – received on the agency's proposal to list the polar bear as "threatened" under the ESA. The polar bear case includes the federal government's first consideration of climate change as a factor in making a listing determination under the ESA.
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The U.S. Court of Appeals for the Ninth Circuit has rejected revised fuel economy standards by the National Highway Traffic Safety Administration (NHTSA) for light duty trucks (including SUVs and pickups), holding that the standards failed to address the benefits of carbon dioxide emissions reductions ( Center for Biological Diversity v. National Highway Transportation Safety Administration, Case No. 06-71891 (9th Cir., November 15, 2007)). Tossing out the new standards under the “arbitrary and capricious” standard, the Ninth Circuit further criticized NHTSA for failing to account for the monetary value of carbon emissions, not setting a “backstop” measure to prevent manufacturers from producing large numbers of vehicles that use more fuel, and failing to set standards for vehicles in the 8,500 to 10,000 pound weight class. The rule has been sent back to the NHTSA for revisions along with a directive to conduct a new environmental impact statement for the regulation.
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On November 8, the State of California filed a lawsuit against the U.S. EPA, claiming that the agency has "unreasonably delayed" action on California's request that EPA waive federal preemption of state regulations limiting vehicle emissions of greenhouse gases. Because vehicle emissions are regulated under the Clean Air Act, California’s more stringent emissions regulations could run afoul of federal law unless the EPA grants a preemption waiver. California filed its request for a waiver in December 2005.
California announced on April 25, 2007 that it would sue EPA if it did not act on the waiver within 180 days. In June, EPA announced that it would act on the waiver before the end of 2007.
Fourteen other states have intervened as plaintiffs in the lawsuit. These states and several others have adopted, or are considering adopting, vehicle emissions standards based on the California regulations. Their regulations would go into effect if and when EPA grants California's request for a waiver. However, in September a U.S. District Court in Vermont ruled that states could impose greenhouse gas emissions standards on automakers even without an EPA waiver.
State of California v. United States Environmental Protection Agency was filed in the United States District Court for the District of Columbia. Read the complaint here.
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October 8, 2007 10:34 AM | Posted by kipp.coddington@alston.com | Topic(s): Litigation
On Friday, October 5, the auto industry appealed last month's decision by a Vermont district court which upheld the authority of states to regulate tailpipe emissions of carbon dioxide. Vermont is following California's lead in tackling this issue. For what it is worth -- and we don't have a dog in the hunt -- our sense is that you regulate tailpipe emissions of CO2 through fuel economy measures, and fuel economy would appear to be a matter of exclusive federal jurisdiction. We're betting on Detroit to get the Second Circuit to overturn the decision, but then again, we picked the Washington Nationals to win the World Series this year.
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September 18, 2007 10:02 AM | Posted by kipp.coddington@alston.com | Topic(s): Litigation
U.S. District Judge Martin Jenkins has dismissed a climate lawsuit brought last year by the Attorney General of California against General Motors Corp., Toyota Motor North America Inc., Ford Motor Co., American Honda Motor Co., DaimlerChrysler Corp. and Nissan North America Inc. The lawsuit entitled People of the State of California v. General Motors Corporation, et al. sought monetary damages from the companies on the theory that tailpipe emissions of greenhouse gases from the automobiles which they produced were contributing to climate change, which the complaint alleged was a public nuisance. The judge dismissed the case on the grounds that such climate matters are a political question, and thus up to the legislative branch to decide.
The dismissal arguably muddies the water regarding how the courts view climate-related claims. Just last week (Sept 12), for example, a federal judge in Vermont ruled in Green Mountain Chrysler-Plymouth-Dodge, et al. v. Crombie, et al. that the preemption provisions of the federal Clean Air Act (CAA) do not preclude Vermont from adopting California's tailpipe emission standards. A similar case alleging the same CAA claims remains pending in federal court in California. At this point, our sense is that the courts continue to struggle with the notion of climate change giving rise to tort-based claims and monetary damages. On the statutory issue of whether State and federal agencies may regulate CO2 emissions under existing law, on the other hand, the courts seem more willing to take a closer look.
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On September 12, 2007, a federal judge in Vermont ruled that the state may impose its own greenhouse gas emission standards on automakers. The opinion in Green Mountain Chrysler-Plymouth-Dodge, et al. v. Crombie, et al. marked a victory for states in their battle with the automotive industry, seeking imposition of new rules to reduce tailpipe emissions.
Plaintiffs, a group of car dealers and manufacturers including DaimlerChrysler and the General Motors Corporation, alleged in their complaint that Vermont's proposed regulations were pre-empted by the federal Clean Air Act and the Energy Policy and Conservation Act, and sought an injunction barring the state from implementation of the proposed regulations. After a 16-day trial, Chief Judge William K. Sessions III issued a 240-page opinion rejecting plaintiff's arguments and entering judgment in favor of the state.
Following California's lead, Vermont joins at least 10 other states in adopting regulations that would require a 30% reduction in carbon dioxide emissions from new vehicles by 2016. Although the decision is likely to be appealed (and similar litigation could follow in other states), Green Mountain Chrysler could clear the way for implementation of similar regulations by other states.
Meanwhile, the State of California's request for an EPA waiver of federal pre-emption of its own tailpipe emissions standards remains pending.
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A lawsuit recently filed against the United States Department of Agriculture (USDA) asserts that the USDA must consider the cumulative effects of CO2 emissions from multiple coal-fired electrical generating facilities before it can provide funding for new coal-fired plant. In Montana Environmental Information Center, et al. v. Mike Johanns, et al., filed on July 23, 2007 in the United States District Court for the District of Columbia, the plaintiffs assert that the Rural Utilities Service, a unit of the USDA, failed to prepare an adequate Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA) before deciding to fund the Highwood Generating Station, a proposed 250 megawatt coal-fired plant in Montana. The complaint alleges, among other things, that the EIS failed to consider the contribution of the proposed project to global climate change, and also failed to consider alternative means, such as renewable energy sources or conservation, to address the demand for power. Although climate change issues related to power plants have already been raised in State permitting proceedings under the federal Clean Air Act, such claims now appear to have crossed over into federal court.
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On April 2, 2007, the U.S. Supreme Court weighed into an increasingly intense political debate concerning global climate change with a decision having significance far beyond the precise legal issues raised by the case. In Massachusetts v. EPA, the Court held that the U.S. Environmental Protection Agency (EPA) had improperly denied a petition requesting that the agency regulate, under the Clean Air Act, emissions of greenhouse gases (GHGs) by new motor vehicles. The Court recognized for the first time that carbon dioxide and other GHGs can be subject to regulation as “air pollutants” under the federal Clean Air Act. In so doing, the Court flatly rejected EPA’s position that the Clean Air Act could not reach GHGs.
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