CHAPTER 9 SELECTED ISSUES ON STANDING, INJUNCTIONS, AND REMEDIES IN OIL AND GAS LITIGATION

• Jurisdiction: United States

Advanced Public Land Law - The Continuing Challenge of Managing for Multiple Use
(Jan 2017)
CHAPTER 9
SELECTED ISSUES ON STANDING, INJUNCTIONS, AND REMEDIES IN OIL AND GAS LITIGATION
Michael S. Freeman
Staff Attorney, Rocky Mountain Regional Office, Earthjustice
Denver, CO
Joel Minor
Associate Attorney, Rocky Mountain Regional Office, Earthjustice
Denver, CO

[Page 9-1]

MICHAEL FREEMAN is a Staff Attorney with the Denver, Colorado office of Earthjustice. He represents sportsmen and conservation groups on matters relating to oil and gas development and public lands. Mike was lead counsel for plaintiffs in successful litigation over the issuance of oil and gas leases on the Roan Plateau, and he represents citizens advocating for protection of the Thompson Divide and other lands in the White River National Forest of Colorado. He also represents conservation groups defending BLM's hydraulic fracturing rule in a pending challenge brought by industry trade associations and several states. Prior to joining Earthjustice in 2008, Mike was a partner with the Denver office of a national law firm. Mike graduated from the University of Chicago Law School in 1994.

JOEL MINOR is an Associate Attorney with Earthjustice's Rocky Mountain Office in Denver, where he works to protect communities and ecosystems from the harmful impacts of energy development. Prior to Earthjustice, Joel served as a law clerk for Hon. Carlos F. Lucero of the Tenth Circuit Court of Appeals. Joel earned a J.D. and an M.S. in Environment and Resources with an emphasis in Atmospheric Science from Stanford. He graduated from Colorado College with a B.A. in Environmental Policy and a minor in Southwest Studies.

In litigation attacking or defending agency decisions on public lands, challenges usually arise over access to the courts and remedies. This article addresses some recent developments in three areas:

(a) Standing to bring claims addressing climate change;

(b) Applicable standards for preliminary injunctions; and

(c) Vacatur of agency actions as a remedy.

I. CHALLENGES TO AGENCY DECISIONS FAILING TO ADDRESS CLIMATE CHANGE: DON'T "SLICE THE SALAMI TOO THIN."

In the words of Pope Francis, climate change "represents one of the principal challenges facing humanity in our day."¹ Similarly, the United States and nearly 200 other countries recognized in the recent Paris agreement that climate change poses "an urgent and potentially irreversible threat to human societies and the planet" requiring a response.² As with many environmental issues, taking a hard look at the problem is a necessary step in solving it. Pope Francis observed that it is "imperative [to] assess[] the impact of our every action . . . on the world around us."³

The federal oil and gas program represents low-hanging fruit for addressing climate change. The program spans 700 million surface and subsurface acres onshore--nearly one third of the land in the United States--in addition to offshore acreage on the outer continental shelf. Private analyses have estimated that greenhouse gas (GHG) emissions from federal oil and gas reserves may account for nearly ten percent of total U.S. GHG emissions.⁴

The federal government, however, has never done a National Environmental Policy Act (NEPA) analysis quantifying the emissions from the U.S. Bureau of Land Management's (BLM) oil and gas program or properly analyzing their impacts. NEPA mandates the full disclosure and

[Page 9-2]

comprehensive consideration of direct, indirect, and cumulative impacts of federal agency action to the human environment, as well as consideration of reasonable alternatives to avoid or mitigate impacts and to "sharply defin[e] the issues and provid[e] a clear basis for choice among options by the decisionmaker and the public."⁵

Instead, existing NEPA analyses typically provide a cursory discussion emphasizing the small contribution each resource management plan (RMP) or individual lease sale will have on global climate change. For example, in dozens of leasing environmental assessments (EAs), BLM declined to analyze cumulative impacts of GHG emissions on the basis that the agency could not link GHG emissions from lease development with any specific climate-related environmental effects.

This logic misses the forest for the trees.⁶ As the Council on Environmental Quality's 2016 Climate Guidance explains:

a statement that emissions from a proposed Federal action represent only a small fraction of global emissions is essentially a statement about the nature of the climate change challenge, and is not an appropriate basis for deciding whether or to what extent to consider climate change impacts under NEPA. . . . [T]his approach does not reveal anything beyond the nature of the climate change challenge itself: the fact that diverse individual sources of emissions each make a relatively small addition to global atmospheric GHG concentrations that collectively have a large impact. ⁷

Not surprisingly, BLM's NEPA analyses have increasingly come under fire from public interest groups in court and elsewhere. One obstacle has been repeatedly raised against these challenges: Article III standing. In any environmental litigation, a plaintiff's standing to sue presents a "threshold jurisdictional question."⁸ To establish standing, the plaintiff must show (i)

[Page 9-3]

an "actual or imminent" injury; (ii) that the injury "is traceable to the conduct complained of;" and (iii) that the injury "is redressable by a decision of the court."⁹

On the injury requirement, "it does not matter how many persons have been injured be the challenged action," but a plaintiff must show that she faces harm "in a concrete and personal way."¹⁰ The second prong (traceability or "causation") requires showing that the defendant's action "contributes" to plaintiff's injury.¹¹ And third, it must be "likely that a favorable [court] decision will redress that injury."¹² When Congress has provided a procedural right, however, the normal standards for immediacy and redressability are relaxed. In those cases, a plaintiff "has standing if there is some possibility that the requested [procedural] relief will prompt the injury-causing party to reconsider the decision that allegedly harmed" the plaintiff.¹³

Industry trade associations, and the federal government in some cases, have argued that states, Native American tribes, and public interest groups lack standing to bring climate change-related cases because of the diffuse nature of this environmental problem. These arguments generally assert that because climate change is worldwide in scope, a particular plaintiff cannot show that any particular source of carbon pollution causes injury, or that a court decision could redress that injury. This argument, when successful, has the perverse result of ensuring that the most critical environmental threat of our time cannot be addressed in court, even under environmental laws predicated on citizen enforcement.

Several courts have dismissed public interest litigants where their standing was based solely on addressing injuries from climate change. However, a growing number of courts has allowed climate change claims to proceed where the plaintiff can allege an injury caused by the agency decision in question.

A. Courts Rejecting Standing Based Solely On Climate Change Impacts

The U.S. Courts of Appeal for the District of Columbia Circuit, and the Ninth Circuit, have ruled in two cases that public interest groups lacked standing to challenge agency decisions allowing substantial new carbon pollution, where the plaintiffs relied for standing only on injuries resulting from climate change. In Center for Biological Diversity v. U.S. Dep't of Interior (CBD),¹⁴ public interest groups and an Alaskan native village challenged the Interior Department's five-year plan to expand oil and gas leasing on the Outer Continental Shelf (OCS) off of Alaska.¹⁵ They alleged that the Interior Department had violated NEPA and the Outer

[Page 9-4]

Continental Shelf Leasing act (OCSLA) by failing to consider the economic and environmental costs and impacts of GHG emissions associated with the leasing program.¹⁶

The court found that plaintiffs had standing to bring these claims because they were asserting procedural injuries under OCSLA and NEPA.¹⁷ But the court rejected the plaintiffs' alternative standing theory, which was based on direct injury from climate change. The plaintiffs argued that oil and gas development resulting from the program would contribute to climate change, which in turn adversely affects the species and ecosystems of the OCS that plaintiffs enjoy and depend upon.¹⁸ The D.C. Circuit rejected this standing theory for failing to establish injury or causation. First, the court held that plaintiffs' "injury is too generalized to establish standing," because "climate change is a harm that is shared by humanity at large, and the redress that Petitioners seek--to prevent an increase in global temperature--is not focused any more on these petitioners than it is on the remainder of the world's population."¹⁹

Second, the court ruled that plaintiffs had failed to establish "a causal link" between the OCS leasing program and the climate change impacts affecting them. Because the chain of events made possible by the program--i.e., more drilling, more oil burned, more carbon dioxide emissions, further climate change, and resulting impacts to animals and their habitat--involves several steps, the court ruled it was too "attenuated or indirect" to establish causation.²⁰

The Ninth Circuit reached a similar holding in Washington Environmental Council v. Bellon,²¹ where public interest groups challenged a state agency's failure to limit GHG emissions from oil refineries. Plaintiffs submitted standing declarations describing how natural areas they

[Page 9-5]

enjoy have been impacted by reductions in glaciers and snow pack, increased wildfires...