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 »

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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