Courts .

• Date: 01 January 2024

54 ELR 10080ENVIRONMENTAL LAW REPORTER 1-2024

IN CASE YOU MISSED IT . . .

In the Courts

"In the Courts" contains full summaries of court cases reported in ELR Update during the month of November 2023. They

are listed under the following categories: A ir, Climate Change, Natural Resources, Toxic Substances, Water, and Wildlife.

The summaries are then arranged alphabetically by case name within each categor y. To access ELR's entire collection of

court cases and summaries, visi t https://www.elr.info/judicial.

AIR

Port Arthur Community Action Network v. Texas Commission

on Environmental Quality, No. 22-60556, 53 ELR 20176

(5th Cir. Nov. 14, 2023). e Fifth Circuit vacated the Texas

Commission on Environmental Quality’s (TCEQ’s) order

granting a PSD permit for a new liqueed natur al gas (LNG)

facility in Texas. An environmental group petitioned for re-

view, arguing TCEQ erred by not imposing the same emis-

sions limits for carbon monoxide and nitrogen oxides on the

proposed facility that it previously imposed on another re-

cently approved LNG facility. e court found TCEQ’s order

departed from the Commi ssion’s policy of adhering to earlier

permit limits, and that the Commission failed to adequately

explain the departure. It vacated the order and remanded to

TCEQ for fu rther proceedings.

CLIMATE CHANGE

Honolulu, City and County of v. Sunoco LP, No. SCAP-22-

0000429, 53 ELR 20170 (Haw. Oct. 31, 2023). e Hawaii

Supreme Court armed a lower court order denying oil and

gas companies’ motions to dismiss a climate misinforma-

tion suit brought by the city and county of Honolulu and

the Honolulu Board of Water Supply. Plaintis argued the

companies knowingly misled the public about the dangers

of burning fossil fuels, bringing ve state tort law claims for

public nuisance, private nuisance, strict liability failure to

warn, negligent failure to wa rn, and trespass. e companies

moved to dismiss for lack of jurisdiction and failure to state

a claim. e lower court denied both motions. On appeal,

the companies argued the court lacked specic jurisdiction

over them; that the claims were preempted by federal com-

mon law, which in turn was displaced by the CAA; and al-

ternatively, that the claims were preempted by the CA A. e

high court concluded the companies were subject to specic

jurisdiction in Hawaii be cause plaintis’ allegations a rose out

of or were related to the companies’ sale and marketing of

fossil fuel products in Hawa ii; the CAA’s displacement of fed-

eral common law governing interstate pollution da mage suits

meant that federal common law did not preempt state law;

and that the CA A did not preempt the claims. It armed the

lower court’s orders denying the motions to dismiss.

Pacic Coast Federation of Fishermen’s Ass’ns, Inc. v. Chevron

Corp., No. 18-cv-07477-VC, 53 ELR 20171 (N.D. Cal. Nov.

1, 2023). A district court denied shing groups’ motion to re-

mand a climate liabilit y lawsuit against oil and ga s companies.

e groups initially sued in state court, seeking damages for

lost shing opportunities a llegedly caused by climate chan ge.

e companies removed the suit to federal court under the

Class Action Fairness Act (CAFA), and the groups moved to

remand. e court found CA FA removal was proper because

the suit was a §382 action seeking damages for injuries suf-

fered by absent shermen and shing busines ses up and down

the West Coast. It denied the motion.

NATURAL RESOURCES

Louisiana v. Haaland, No. 23-30666, 53 ELR 20177 (5th

Cir. Nov. 14, 2023). e Fifth Circuit dismissed intervening

environmental groups’ challenge to a district court order re-

quiring the Bureau of Ocean Energy Management (BOEM)

to hold an oil and gas lease sa le on the outer continental shelf

in the Gulf of Mexico. e state of Louisiana and oil compa-

nies initially sued BOEM and sought a preliminary injunc-

tion, arguing the Bure au violated the Ination Reduction Act

(IRA) by ch anging the sale terms one month before the dead-

line, removing six million acres and restricting vessel activ-

ity to protect the endangered Rice’s whale. e district court

granted the injunction, set aside the changed terms as un-

lawful, and ordered BOEM to hold the sale before the IRA’s

September 30, 2023, deadline. Four environmental groups

intervened to challenge the injunction. But the court found

the “chain of events” needed to show that the activ ities result-

ing from the sale without the cha nged terms could harm one

of the whales and diminish a group member’s recreational or

aesthetic interests was so attenuated that the alleged harm

was not “certainly impendin g.” It dismissed the groups’ chal-

lenge for lack of standing, and amended the preliminary in-

junction by extending the dead line for conducting the sale to

December 20, 2023.

Copyright © 2024 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.