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Climate Change Litigation Under the National Environmental Policy Act

(NEPA)

Panel Presentation byKevin Haroff (Partner SHB San Francisco)

2011 Monsanto Lecture and Conference on Climate Change Litigation

Valparaiso University School of Law – February 18, 20011

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• National Environmental Policy Act of 1969, 42 U.S.C. §§ 7401-7626.

• First of the most important, modern U.S. environmental statutes.– Establishes national policy to “create and maintain conditions

under which man and nature can exist in productive harmony.”– Requires government agencies to provide a detailed assessment

of the impacts of legislative proposals and other “major federal actions significantly affecting the quality of the human environment.”

• Climate change recognized at the time NEPA enacted as a potential significant impact warranting environmental assessment.– H.R. Report No. 91-378 (July 11, 1969) – testimony of David Gates,

Director of Missouri Botanical Gardens: “Is climate changing in an unnatural manner? . . . . we do not know the consequences of our actions until it is too late.”

• No “political question” or justiciability issue in NEPA litigation.– Some issues (standing, ripeness, causation) common to climate

change litigation in general are present. – Others are not (administrative remedies v. damages).

NEPA’s Role in Climate Change Litigation

• Federal agencies must:– Determine whether there is a “major federal action”

triggering NEPA review requirements.– Determine whether the action may have significant

environmental impacts (issue of causation).• Agency must prepare an environmental assessment (EA) to make

initial determination.– If agency makes a finding of no significant impact (FONSI), no

further assessment is required.– If finds there is a potential significant impact, it must prepare an

environmental impact statement (EIS).• An EIS must:

– Describe the environmental impacts of the project.– Describe unavoidable adverse environmental impacts.– Address cumulative impacts.– Consider project alternatives.

NEPA Fundamentals

• Actions are major if they have a significant environmental impact. Minnesota PIRG v. Butz, 498 F.2d 1314 (8th Cir. 1974).– Significant impacts can be direct or indirect. – Indirect impacts are those that are caused by the action and are

later in time or farther removed in distance, but are still reasonably foreseeable. 40 C.F.R. § 1508.8.

• Broad-scale causes and effects of climate change are well established. See Center for Biological Diversity v. NHTSA, 508 F. 3d 508 (9th Cir. 2007). – Findings by International Panel on Climate Change (IPCC).– Proposed federal action to set corporate average fuel economy

(CAFE) standards would have a direct effect on greenhouse gas (GHG) emissions and therefore a “legally relevant cause” of global warming.

• Friends of the Earth v. Mosbacher, 488 F. Supp. 2d 889 (N.D. Cal. 2007).– Overseas projects receiving funding support by OPIC and Ex-Im

Bank emitted GHGs and contributed to global warming.– Funding decision could not be found to be “but for” cause of project

emissions (requiring case by case consideration).

Major Federal Actions - Causation

• Lujan v. National Wildlife Federation, 497 U.S. 871 (1990), is the seminal decision on standing in environmental cases.– Plaintiffs claimed recreational use of federal lands “in the vicinity”

of lands subject to two of 1250 Bureau of Land Management (BLM) orders.

– D.C. Circuit Court of Appeals found claim sufficient for standing purposes, but Supreme Court reversed.

• Standing requires a showing of injury in fact. Injury must

1.Involve an invasion of a legally protected interest that is Concrete and particularized. Actual or imminent, not conjectural or hypothetical.

– Injury must be fairly traceable to challenged federal action.– Injust must likely (not speculatively) be redressible by favorable

decision.• Where interest is a procedural one (as under NEPA), plaintiff must

– Have procedural right to protect interests (under APA – “person aggrieved.”

– Have concrete interest that is threatened (“injury in fact”).

Standing to Assert NEPA Claims

• Border Power Plant Working Group v. DOE, 260 F. Supp. 2d 997 (S.D. Cal. 2003).

• Challenged federal actions involved approvals of right of ways in California for electrical transmission lines connecting to natural gas-fired power plants to be constructed in Mexico.– DOE and BLM issued FONSI’s after an EA. – Plaintiffs were an association of individuals living in the vicinity

of proposed power lines and challenged failure to consider GHG emissions from Mexican power facilities.

– Court found standing based on “shared concern for environmental health” in the California/Mexico border region.

• GHG emissions from Mexican power plant were sufficient indirect impacts of power transmission line approvals, since one of the plants was being constructed solely for purposes of supplying power to the California grid.

• Agencies then prepared an EIS – upheld over objections to alternatives analysis accuracy of relied upon scientific information. Border Power Plant Working Group v. DOE, 467F. Supp. 2d 1040 (S.D. Cal. 2006).

Case Study - Border Power Litigation

• Friends of the Earth v. Mosbacher, No. C 02-4106, 2005 WL 2035596 (N.D. Cal. 2005) (Mosbacher I – Mosbacher II discussed supra.).

• Challenge to OPIC and Ex-Im Bank funding decisions for overseas energy projects brought by two environmental groups (FOE, Greenpeace) and four U.S. cities (Boulder, Co. and Arcata, Oakland, and Santa Monica, Ca.)

• Challenged actions included:– Loan guarantees to mutual funds and other investors for projects

oil and gas development projects in Russia and Indonesia.– Guarantees to U.S. oilfield services and equipment providers for

offshore petroleum project in Mexico and for projects in Venezula.– Guarantee to a U.S. bank financing a power project in China.

• Court found standing based on Lujan.– Because only procedural challenge under NEPA, no need to show

imminent or particularized environmental effects.– Required only showing of “reasonably probable” threat to concrete

interests.

Case Study – Mosbacher Litigation

• Application of “injury in fact” requirement focused on contentions that GHG emissions will have widespread environmental impacts.– Impacts have affected and will affect area used and owned by

plaintiffs.– “Plaintiffs’ evidence is sufficient to demonstrate that it is

reasonably probably that emissions from the project will threaten plaintiffs’ concrete interests.”

• What’s wrong with this picture?– Specific concrete interests of these plaintiffs (as opposed to

members of the public generally) not clearly identified.– Ignores suggestion in Lujan and other decisions that geographic

and/or economic nexus between project and decision is important, if not determinative.

– Consistent with view that procedural interests are substantively different from non-procedural interests from standing perspective.

Case Study – Mosbacher Litigation (Cont.)

• Massachusetts v. EPA, 549 U.S. 497 (2007).• U.S. Supreme Court ruled that EPA has authority under the

Clean Air Act (sec. 202(a)(1)) to regulate GHG emissions from mobile sources (vehicle tailpipe emissions).

• Plaintiffs included:– Twelve states, four local governmental entities, and various

environmental and public interest groups.• Only Commonwealth of Massachusetts had standing to assert

climate change claim under the Act.– Massachusetts was a sovereign state (not a private party as in

Lujan). Could sue for injuries to it in its capacity as a quasi-sovereign

entity.– Only Massachusetts had alleged it was jeopardized imminently

by rising sea levels, which “have begun to swallow Massachusetts’ coastal land,” a substantial part of which was owned or operated by the

Commonwealth.

Massachusetts v. EPA

• Summers et al. v. Earth Island Institute et al., 129 S. Ct. 1142 (2009).

• Reversing 9th Circuit decision that would have allowed environmental groups to challenge federal actions absent dispute over their concrete application. – U.S. Forest Service refused to apply certain procedural

requirements to a decision to conduct a salvage sale of timber. – 9th Circuit affirmed the district court’s determination that the

Service’s procedural exemptions were invalid and upheld nationwide injunction. Earth Island Institute v. Ruthenbeck, 490 F. 3d 687 (2007).

• Supreme Court majority opinion summarized the standards that must be met to seek injunctive relief in the federal courts (based on Lujan): – There must be a concrete and particularized threat that plaintiff

will suffer an “injury in fact”; – The threat is actual and imminent, not conjectural or hypothetical; – The threat must be traceable to the challenged action of the

defendants; and – A favorable decision preventing or redressing the injury is likely.

Earth Island Institute

• Majority opinion dismissed argument that respondents had standing to maintain their suit because of a procedural injury, namely that they had been and would continue to be denied the ability to file comments on some Forest Service actions under the challenged regulations. – Justice Scalia: “deprivation of a procedural right without some

concrete interest that is affected by the deprivation – a procedural right in vacuo – is insufficient to create Article III standing.” 129 S. Ct. at 1151.

– Makes no difference whether a procedural right has been accorded by Congress, which can loosen the strictures of the redressability prong of standing inquiry.

• Unlike redressability, the requirement of injury in fact is a hard . . . floor of Article III jurisdiction that cannot be removed by statute. 129 S. Ct. at 1151.

Earth Island Institute (Cont.)

• Monsanto v. Geertson Seed Farms, 561 U.S. __ (2010), rev’g Geertson Seed Farms v. Johanns, 541 F. 3d 938 (9th Cir. 2008). – Challenge to decision to approve the unconditional

deregulation of Roundup Ready Alfalfa (RRA), after preparation of a draft EA and decision that RRA would not have any significant adverse impact on the environment.

– 9th Circuit had upheld nationwide injunction of RRA marketing pending completion of EIS.

• Monsanto had constitutional standing to seek review.– Article III standing requires an injury that is (i) concrete,

particularized, and actual or imminent, (ii) fairly traceable to the challenged action, and (iii) redressable by a favorable ruling.

– Monsanto was injured by inability to sell or license RRA to prospective prospective customers pending EIS completion.

– Since injury was caused by the remedial order challenged on appeal, it would be redressed by a favorable ruling.

Monsanto v. Geertson Seed Farms

• Lujan remains determinative of standing in environmental cases, including cases raising climate change issues.– Requirement of injury in fact is constitutional minimum for standing.– Where injured interests are procedural (e.g., under NEPA), requirement

of redressability may be relaxed – other elements are not.

• Border Power and Mosbacher ?– In Border Power, residence of plaintiff association’s members had a

geographic nexus to transmission lines (arguably also Mexican power facilities). “Shared concern for environmental health” in the region could be

implicated by non-GHG emissions, e.g., ammonia. – In Mosbacher, plaintiffs lacked sufficient concrete interests.

No geographic/economic nexus between project and funded projects. Procedural interests not enough. Note – alo no “but for” causation (question of redressability?)

Implications for Climate Change Litigation

Kevin Haroff

Shook Hardy & Bacon LLP - San Francisco

kharoff@shb.com