On April 3^rd, the U.S. District Court of Colorado vacated the U.S. Army Corps of Engineers’ (“USACE”) Record of Decision, Final Environmental Impact Statement, and approval of a dredge-and-fill permit for Denver Water’s expansion project of the Gross Dam and Reservoir in Colorado and remanded the matter back to the agency.  The Court temporarily enjoined Denver Water from continuing construction on the dam pending a hearing on what is “reasonable and necessary” to ensure that the dam will be structurally safe and issued a permanent injunction prohibiting the enlargement of the Gross Reservoir. Read More »

Share | Email| Comments|  Topics: Administrative Procedures Act, Agency Action, Army Corps, Clean Water Act, Climate Change, Colorado, Injunction, NEPA, Permits, Water

In a decision on February 5, 2025, the Superior Court of New Jersey dismissed the Attorney General of New Jersey’s state tort claims against various energy companies seeking redress for the effects of climate change in Platkin v. Exxon Mobil Corp (N.J. Super. No. MER-L-001797-22).  Because the dispute concerned interstate and global air emissions, which implicate uniquely federal interests, the court concluded that the federal Constitutional structure requires that federal common law preempts these climate-change related tort claims.   Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Climate Change, Energy, New Jersey, NJDEP, Toxic Torts

In an opinion published on December 18, 2024, the Montana Supreme Court found that a provision in the Montana Constitution providing for the right to a “clean and healthful environment” guarantees the right to a stable climate system.  In Held v. State of Montana, 2024 MT 312 (Mont. 2024), the Montana Supreme Court affirmed a trial court decision striking down state law provisions that barred state agencies from considering greenhouse gas (“GHG”) emissions in permitting decisions, finding the law violates the environmental rights guaranteed by the Montana Constitution. Read More »

Share | Email| Comments|  Topics: Air, Citizens Suit, Clean Air Act, Climate Change, Greenhouse Gas, Montana

On October 29, 2024 in Dawson v. Murphy, et al., the New Jersey Superior Court Appellate Division affirmed the trial court’s order denying Plaintiffs leave to amend their complaint to assert a claim that New Jersey’s investment of state pension funds into oil and gas companies which allegedly harm the environment constitutes a violation of plaintiffs’ rights under the New Jersey Civil Rights Act (“NJCRA”).  No. A-3083-22, 2024 WL 4601708 (N.J. Super. App. Div. Oct. 29, 2024).  In an unpublished opinion, the Court held that that the New Jersey Constitution does not guarantee a right to a stable environment and therefore the state’s investments did not violate Plaintiffs’ constitutional rights.  Read More »

Share | Email| Comments|  Topics: Citizen Suit, Climate Change, Environmental Justice, Greenhouse Gas, New Jersey, New Jersey Civil Rights Act, Oil and Gas, Public Trust Doctrine

In California Restaurant Association v. City of Berkeley, 89 F. 4th 1094 (9th Cir. 2024), the Ninth Circuit was tasked with determining whether the City of Berkeley’s attempt to prohibit the use of natural gas pipelines in new buildings through a local ordinance conflicted with the federal Energy Policy and Conservation Act (“EPCA”), 42 U.S.C. § 6297(c).  That statute expressly preempts state and local governments from enacting regulations restricting energy use of many natural gas appliances, including those used in household and restaurant kitchens.  After evaluating the parties’ arguments, the court concluded that the ordinance is preempted by the EPCA based on the text, structure, and context of that statute.  Read More »

Share | Email| Comments|  Topics: Climate Change, Natural Gas, Preemption

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