In the Courts

• Date: 01 December 2024

54 ELR 11082 ENVIRONMENTAL LAW REPORTER 12-2024

IN CASE YOU MISSED IT . . .

In the Courts

"In the Courts" contains full summar ies of court cases reported in ELR Update during the month o f October 2024. T hey are

listed under the following categories: Climate Change, Energy, Land Use, Natural Resources, Water, and Wildlife. The

summaries are then arranged alphabeticall y by case name within each category. To access ELR's entire collection of court

cases and summaries, visit https://www.elr.info/judicial.

CLIMATE CHANGE

Aloha Petroleum, Ltd . v. National Union Fire Insurance Co.,

No. SCCQ-23-0000515, 54 ELR 20143 (Haw. Oct. 7,

2024). e Hawaii Supreme Court held that greenhouse

gases (GHGs) were “pollutants” under several insuranc e poli-

cies’ pollution exclusions and that an “accident” included an

insured’s reckless conduct for purposes of a challenge ag ainst

fossil fuel companies for cl imate change-related ha rms. e

city and county of Honolulu and the county of Maui have

sued the companies, arg uing they acted rec klessly by emit-

ting GHGs despite knowing the clim ate risk and misleadin g

the public about the dangers of emitting t hem. One com-

pany demanded a defense from two insurance companies

that issued liabilit y policies to its parent company. e court

found the insurance policies c overed an “occurrence,” which

was dened as an “accident,” and that an “accident” included

reckless conduct. It further found that GHGs were “pollut-

ants” under the policies’ pollution exclusion clause, which

barred coverage for emitting or misleading the public about

emitt ing GHGs.

ENERGY

NextEra Energy Resources, LLC v. Federal Energy Regulatory

Commission, No. 23-1094, 54 ELR 20141 (D.C. Cir. Oct.

4, 2024). e D.C. Circuit, 2-1, denied pet itions to review

FERC’s orders requiring a generator to upgrade its circuit

breaker in order for another power source to safely connec t to

the regional transmission grid and requiring t he new source

to compensate the generator for direct costs of the upgrade.

e generator petitioned for review. e court found FERC

had statutory authority to require t he upgrade, correctly in-

terpreted the governing tari  and contract to require the up-

grade, and permissibly denied compensat ion for the genera-

tor’s indirect costs. It denied the petitions.

LAND USE

Cottonwood Environmental Law Center v. Olson, No. 23 -4229,

54 ELR 20149 (9th Cir. Oct. 25, 2024). In an unpublished

opinion, the Ninth Circuit armed dismissal of a challenge

to the Forest Service’s approval of sheep grazing a llotments

in Beaverhead Deerlodge National Forest. A n environmen-

tal group argued t he Service overlooked new information on

grizzly bear mortality and conicts with sheep dogs. e ap-

pellate court found the di strict court correctly dismissed t he

group’s request to compel the Service to complete its planned

environmental analyses for lack of subject matter jurisdic-

tion because the Serv ice already fu llled its duty to conduct

analyses under NEPA; and correctly found the Serv ice did

not violate NEPA because it reasonably concluded it did not

have to prepare a supplemental analysis after a dead bighorn

ewe was found in one of the allotments. It a rmed dismissal.

NATURAL RESOURCES

Sierra Club v. Tennessee Department of Environme nt and Con-

servation, Nos. 23-3682 and 24-3831, 54 ELR 20146 (6th

Cir. Oct. 11, 2024). In an u npublished opinion, the Sixth

Circuit granted environmental groups’ motion to stay CWA

permits issued for construct ion of a propose d pipeline in Ten-

nessee. e groups argued the Tennessee Department of En-

vironment and Conservation (TDEC) and the Army Corps

of Engineers violated the CWA by failing to c onsider viable

water-crossing alternatives for the proposed route, resulting

in impermissible detrimental envi ron menta l impact from the

pipeline’s construction. e court found the groups were at

risk of considerable irreparable harm abs ent a stay, given that

TDEC’s approval of the §401 application authorized “perma-

nent impacts” to 0.03 acres of wetland and 490 linear feet of

stream. It granted the motion to stay pending review.

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