On November 1st, 2023, in a split 4-1 opinion with a dissent, the Pennsylvania Commonwealth Court held that Pennsylvania cannot participate in the Regional Greenhouse Gas Initiative (“RGGI”) because the regulations intended to implement RGGI pursuant to the Air Pollution Control Act (“APCA”) constitute an impermissible tax rather than a fee. Bowfin KeyCon Holdings, LLC vs. Pa. Dep’t of Env’t Prot. and Pa. Env’t Quality Bd., 2023 WL 7171547, at *1 (Pa. Commw. Ct. Nov. 1, 2023). The holding halts former Governor Tom Wolf’s efforts to make Pennsylvania the first major fossil-fuel producing state to implement a price on carbon emissions.     Read More »

Share | Email| Comments|  Topics: Air, Climate Change, Commonwealth Court, Pennsylvania, Pennsylvania Department of Environmental Protection, Taxes

On July 25, 2023, a Third Circuit panel rejected an environmental group’s challenge of federally approved changes to Pennsylvania’s State Implementation Plan (“SIP”),  holding that the Environmental Protection Agency (“EPA”) emissions-based analysis did not violate the Clean Air Act (“CAA”). Ctr. for Biological Diversity v. U.S. Env’t Prot. Agency, 2023 WL 471884, at *6 (3d Cir. 2023). The panel’s reasoning focused on a close statutory reading of §7410 of the CAA, which prevents EPA from approving any SIP revision that would “interfere with any applicable requirement for attainment and reasonable further progress” in reaching the National Ambient Air Quality Standards (“NAAQS”). Id. at *4. NAAQS are air quality benchmarks that each state must work toward by reducing their air pollution levels. Id. at *1. Ultimately, the Third Circuit held that Pennsylvania’s revisions did not interfere with NAAQS attainment because Pennsylvania reasonably concluded that emissions would likely decrease under the source specific requirements imposed by the revised plan. Id. at *4. Read More »

Share | Email| Comments|  Topics: Air, Citizen Suit, Clean Air Act, Climate Change, Greenhouse Gas, HAPs, Hazardous Air Pollutants, Legislation, Pennsylvania, Rulemaking, Third Circuit

This post was authored by Alice Douglas, with contributions from Summer Associate Reilly Wright 

On July 5, 2023, the United States Department of the Interior’s Bureau of Ocean Energy Management (BOEM) approved the largest offshore wind energy project to date—known as Ocean Wind 1—which will entail the construction of up to 98 wind turbines and up to 3 offshore substations off the coast of New Jersey over the next two years.  Ocean Wind 1, financed by the Danish company Orsted, is the third offshore wind energy project to gain approval by the Biden administration, following the Vineyard Wind project off the coast of Massachusetts and the South Fork Wind project off the coast of Rhode Island and New York, which are both currently under construction. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Citizen Suit, Climate Change, Endangered Species Act, Energy, NEPA, Permits, Standing

This post was authored by Trang Do, a summer associate.

In West Virginia v. EPA, the Supreme Court limited the authority of the United States Environmental Protection Agency (EPA) to reduce greenhouse gases by setting emission guidelines for existing power plants, characterizing the energy generation shifting strategy proposed in the Clean Power Plan (CPP) as an overreach of the agency’s power. In a 6-3 decision, with the three liberal justices dissenting, the Court held that the authority to adopt a regulatory program that would significantly alter how the nation’s energy is generated fell under an “extraordinary case” of the major questions doctrine. West Virginia v. EPA 597 U. S. ____ (2022). The major questions doctrine requires that a federal agency have “clear congressional authorization” when acting on issues of great “economic and political significance.” Id. (citing Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324). Read More »

Share | Email| Comments|  Topics: Clean Air Act, Climate Change, Decisions of Note, Electric, Emissions, Energy, EPA, Greenhouse Gas, Legislation, Refinery, Rulemaking, Supreme Court, West Virginia

On May 17, 2021, the Supreme Court vacated an appellate court decision which had remanded to state court an action seeking to hold petroleum companies liable for the effects of climate change, finding that the appellate court impermissibly restricted the scope of its review of a district court’s order. Although, as noted by the Supreme Court, “[t]he only question before us is one of civil procedure,” the case of BP P.L.C. v. Mayor and City Council of Baltimore, Docket No. 19-1189 (May 17, 2021) may have a profound practical impact on ongoing environmental litigation. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Climate Change, Decisions of Note, Energy, Fourth Circuit, Greenhouse Gas, Oil and Gas, Procedure, Refinery, Removal, Supreme Court, United States Supreme Court

Earlier this month, the Second Circuit affirmed the District Court for the Southern District of New York’s ruling that state common law claims against oil companies for costs resulting from climate change were either preempted by the Clean Air Act, or, in the case of foreign emissions, represented a non-justiciable political question. See City of New York v. Chevron Corp., 993 F.3d 81, 2021 WL 1216541 (2d Cir. 2021). The decision represents the first time an appellate court has had the opportunity to rule on the merits of the federal preemption defense raised by defendants. Although there are active lawsuits in other jurisdictions where plaintiffs have made substantially similar claims, decisions in the other active climate change suits thus far have been restricted to the issue of whether climate change suits brought in state court were properly removed to federal court. The decisions in those cases, therefore, have not addressed the merits of the federal preemption defense. (The Supreme Court is predicted to issue a ruling on the removal issue by the end of its term in June. See Mayor & City Council of Baltimore v. BP p.l.c., et al., 388 F. Supp. 3d 538, 548 (D. Md.), as amended (June 20, 2019), aff’d, 952 F.3d 452 (4th Cir.), cert. granted, 141 S. Ct. 222 (2020)). Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Climate Change, New York, Preemption, Second Circuit

On February 22, 2021, the D.C. Circuit granted the Environmental Protection Agency’s (“EPA”) motion to stay the vacatur of the Trump administration’s Clean Power Plan Repeal Rule until EPA conducts further rulemaking on the issue in the case of American Lung Association v. EPA, No. 19-1140 (D.C. Cir., Feb. 22, 2021). This decision marks the latest action in the ongoing efforts by EPA and states to regulate greenhouse gas emissions; particularly in terms of carbon emissions from currently existing power plants. For additional background, please see previous MGKF blog on this topic here.  Read More »

Share | Email| Comments|  Topics: Air, Case Update, Clean Air Act, Climate Change, D.C. Circuit, Greenhouse Gas, Rulemaking

On January 19, 2021, the U.S. Court of Appeals for the D.C. Circuit vacated and remanded the Trump administration’s Affordable Clean Energy Rule (“ACE Rule”), which itself was a rollback of the Obama administration’s Clean Power Plan (“CPP”); once again reshaping the heart of American climate policy. American Lung Association v. EPA, No. 19-1140 (D.C. Cir., Jan. 19, 2021). The CPP and ACE Rule both sought to regulate greenhouse gas (“GHG”) emissions from existing stationary sources but used highly divergent interpretations of the Clean Air Act (“CAA”) to do so. In making its ruling, the Court called the Trump Environmental Protection Agency’s interpretation of the CAA a “fundamental misconstruction” of the statute and provided a lengthy analysis of its findings. Id. at 16. The Court ultimately held that because the Environmental Protection Agency (“EPA”) based the ACE Rule “on an erroneous view of the law” (as opposed to having based the ACE Rule on a valid exercise of agency discretion), the court had no choice but to vacate the rule and remand it to the EPA for additional interpretation. Id. at 46. Because President Biden has described climate change as the “existential threat of our time,” the Biden EPA will likely use this opportunity to draft new rulemaking regarding the regulation of GHG emissions. Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Climate Change, D.C. Circuit, Greenhouse Gas, Rulemaking

In State of Rhode Island v. Shell Oil Products Co., L.L.C. et al., No. 19-1818 (1st Cir. 2020), decided on October 29th, 2020, the First Circuit joined seven sister circuits in holding that the scope of appellate review of remand orders under 28 U.S.C. § 1447(d) is limited to the questions of federal-officer jurisdiction and civil rights jurisdiction. And while the holding does not break new ground in light of its consistency, it informs members of industry of the venue in which they will litigate climate change claims based in tort and state law providing environmental rights. Read More »

Share | Email| Comments|  Topics: Climate Change, Federal Procedure, First Circuit, Nuisance, Procedure, Removal, Trespass

This Post was authored by Andrew LeDonne, a MGKF summer associate. 

On July 2, 2018, the State of Rhode Island (“RI”) filed suit against twenty-one oil and gas companies in an attempt to hold these organizations liable for climate change impacts RI has and will experience. The defendants (Chevron Corp., et al.) removed the case to federal court. On August 17, 2018, RI filed a motion to remand the case back to state court. On Monday, July 22, 2019, the United States District Court for the District of Rhode Island granted RI’s motion to remand. The remand order was stayed for sixty days for the court to consider whether a further stay pending appeal is warranted. Rhode Island v. Chevron Corp., 2019 WL 3282007 (D.R.I. July 22, 2019). Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Climate Change, Emissions, Federal Procedure, First Circuit, Nuisance, Oil and Gas, Preemption, Procedure, Subject Matter Jurisdiction