Issue - May 19, 2026

Good morning. It’s Tuesday, May 19, and this week’s ESG Litigation Weekly covers Suncor and ExxonMobil’s Supreme Court brief in the Boulder climate case, the High Court of Australia’s hearing of MACH Energy’s appeal over the Mount Pleasant coal mine extension, South Africa’s advertising regulator upholding a complaint over a TotalEnergies diesel emissions claim, and more.

Suncor and Exxon File Supreme Court Brief in Boulder Climate Case
Suncor and ExxonMobil filed their merits brief in the U.S. Supreme Court in the Boulder climate case against the companies. Boulder County and the City of Boulder sued in Colorado state court in 2018, alleging that fossil fuel production and marketing contributed to climate-related harms. The Colorado Supreme Court allowed the state-law claims to proceed. The companies now argue that the Constitution and the Clean Air Act preclude state-law claims seeking relief for harms allegedly caused by interstate and international greenhouse gas emissions. The brief also addresses whether the Supreme Court has jurisdiction to review the case.
🔗 Read more → Supreme Court (Brief for Petitioners, Case Docket)

Australian High Court Hears Coal Mine Climate Impact Appeal
The High Court of Australia heard MACH Energy’s appeal on May 13 over the Mount Pleasant Optimisation Project, which would extend the life of the Mount Pleasant Coal Mine in Upper Hunter Valley by 22 years to 2048. The New South Wales (NSW) Court of Appeal had declared the development consent invalid, finding that the Independent Planning Commission failed to consider a mandatory statutory issue by not addressing how the project’s greenhouse gas emissions contribute to climate change and how climate change may affect the local environment and community. The appeal centers on how NSW planning law treats climate impacts, including Scope 3 emissions, in development approvals.
🔗 Read more → High Court of Australia (Case Information and Documents, Case Summary)

Cushman & Wakefield Seeks Dismissal and Discovery Stay in 401(k) Climate-Risk Suit
Cushman & Wakefield and its 401(k) plan fiduciaries moved to dismiss a proposed ERISA class action alleging they failed to consider climate-related financial risk when selecting and monitoring the Westwood Quality SmallCap Fund. The plaintiff claims the fund was unsuitable due to alleged underperformance, high fees, limited market acceptance, and exposure to climate-vulnerable sectors. Defendants argue that the plaintiff lacks Article III standing, has not alleged a deficient fiduciary process, has not tied any loss to climate risk, and that ERISA does not require fiduciaries to prioritize ESG considerations. The docket also shows that defendants sought to stay discovery deadlines while dismissal-related briefing proceeds.
🔗 Read more → National Association of Plan Advisors (NAPA), Stipulation and Order Regarding Briefing Schedule for Motion to Strike and Request for Judicial Notice and Continuance of Deadlines via JUSTIA, Case Docket via PacerMonitor

Federal Court Dismisses Challenge to BOEM Decision on Sable Offshore Operations
The U.S. District Court for the Central District of California dismissed a lawsuit challenging the Bureau of Ocean Energy Management’s (BOEM) decision that Sable Offshore was not required to revise its development and production plan for oil and gas operations at the Santa Ynez Unit in the Santa Barbara Channel. The plaintiffs had sought an order requiring BOEM to demand a revised plan under the Outer Continental Shelf Lands Act. The Department of Justice (DOJ) said the court found the asserted procedural injury was not grounded in the statute, was not traceable to BOEM, and could not be redressed by the court.
🔗 Read more → DOJ’s Press Release

CLF Settles Clean Air Act Idling Suit Against Academy Express
Conservation Law Foundation (CLF) reached a proposed settlement with Academy Express after six years of Clean Air Act litigation over alleged illegal bus idling in Greater Boston. CLF says a federal judge found after trial that Academy Express engaged in a “pattern and practice” of illegal idling, and the consent decree states Academy Express was found liable for violations tied to vehicle operations at four Massachusetts bus stops. If approved, Academy Express will pay $5.6 million, including $3 million for local air quality projects, and implement additional driver training and emissions-reduction measures.
🔗 Read more → CLF (Press Release, Consent Decree)

NextEra Settles Nuclear Plant Wage Suppression Suit for $9.5 Million
NextEra Energy and Florida Power & Light agreed to pay $9.5 million and cooperate with plaintiffs to settle a proposed class action alleging that commercial nuclear power plant operators conspired to suppress worker pay. The lawsuit, filed in Maryland federal court by two power generation workers, accuses 26 nuclear plant operators and two consulting firms of sharing wage information to keep compensation artificially low since 2003. Other defendants include Constellation Energy, Duke Energy, and Pacific Gas & Electric. The settlement is the first in the case and remains subject to court approval. The defendants have denied wrongdoing.
🔗 Read more → Reuters

New Zealand Plans Law Change to Block Climate Tort Liability
New Zealand’s government announced plans to amend the Climate Change Response Act 2002 to prevent courts from finding companies liable in tort for climate change-related damage or harm caused by greenhouse gas emissions. Justice Minister Paul Goldsmith said the change would apply to current and future proceedings and is intended to preserve the role of Parliament, the Act, and the Emissions Trading Scheme in managing emissions. An RNZ article reports that the move would affect a pending High Court case brought by climate activist Mike Smith against Fonterra and five other major emitters, drawing criticism from the claimant and climate law advocates.
🔗 Read more → New Zealand Government, RNZ

European Commission Proposes Updated EU ETS Free Allocation Benchmarks
The European Commission proposed revised EU Emissions Trading System (ETS) benchmark values for 2026 to 2030, a key step for determining free allocation of emission allowances to industrial installations. The Commission says industry would, on average, continue to receive free allocation covering around 75% of emissions, and that maintaining coverage of indirect emissions from electricity use across 14 product benchmarks would have an estimated €4 billion financial impact over the period. The draft implementing regulation sets revised benchmark values under Article 10a(2) of the ETS Directive. Adoption is planned for the end of June, following consultation and Member State scrutiny.
🔗 Read more → European Commission (Press Release, Draft Implementing Regulation and Public Feedback Participation, Q&A)

European Commission Consults on CBAM Foreign Carbon Price Deduction Rules
The European Commission opened feedback on draft rules for how carbon prices paid in third countries would reduce the number of Carbon Border Adjustment Mechanism (CBAM) certificates that importers must surrender. The draft implementing regulation covers how to determine the carbon price effectively paid, convert foreign currencies into euros, account for rebates or compensation, use default carbon prices for some precursors and indirect emissions, and certify evidence through independent persons. The draft would recognize binding carbon taxes, levies, fees, and emissions trading systems, while limiting eligible international Article 6 carbon credits to 10% of reported emissions. Feedback is open until June 10, 2026.
🔗 Read more → European Commission (Draft Implementing Regulation and Public Feedback Participation, Synopsis Report)

Germany's Cabinet Approves Building Modernization Bill
Germany’s cabinet approved a draft Building Modernization Act to replace parts of the Building Energy Act and revise heating rules for buildings. The proposal would remove the general requirement that new heating systems use at least 65% renewable energy, allowing owners to choose technologies including heat pumps, hybrid systems, biomass, gas, and oil heating. New gas, oil, and LPG systems would need increasing shares of lower-carbon fuels from 2029, rising from 10% in 2029 to 60% in 2040. The bill also implements the EU Buildings Directive into national law and provides for a 2030 evaluation against Germany’s 2045 climate neutrality target.
🔗 Read more → German Federal Ministry for Economic Affairs and Energy’s Press Release, Draft Bill

EPA Proposes Two-Year Delay for Tier 4 Vehicle Pollution Standards
The U.S. Environmental Protection Agency (EPA) proposed delaying Tier 4 criteria pollutant standards for light- and medium-duty vehicles by two model years, moving the phase-in from model year 2027 to model year 2029. The proposal would keep Tier 3 standards in place for model years 2027 and 2028 while EPA conducts a broader “Part 2” reconsideration of the Tier 4 program. EPA says the delay addresses feasibility and lead-time concerns tied to lower projected EV adoption and would save about $1.7 billion. The proposal also notes expected increases in emissions of criteria pollutants compared with the current Tier 4 baseline. Comments are due July 6, 2026.
🔗 Read more → EPA (Press Release, Fact Sheet, Proposed Rule)

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South Africa ARB Upholds Complaint Over TotalEnergies Diesel Emissions Claim
South Africa’s Advertising Regulatory Board (ARB) upheld a complaint against TotalEnergies Marketing South Africa over a webpage for Excellium Diesel D10. The ad claimed “Lower CO₂ emissions” by improving engine performance. The ARB found the claim could mislead consumers because the webpage did not clearly disclose that the supporting test data related to a specific vehicle and showed a 3.6% emissions reduction under specific conditions. Since TotalEnergies is not an ARB member, the ARB did not issue a direct order against the company. The ruling instructed ARB members not to accept the claim unless it includes a disclaimer, link, or alert to the relevant testing.
🔗 Read more → ARB Decision

UK ASA Partially Upholds Complaint Against AHDB Beef and Milk Carbon Footprint Ads
The UK Advertising Standards Authority (ASA) upheld part of a complaint against the Agriculture and Horticulture Development Board’s (AHDB) “Let’s Eat Balanced” campaign. The ruling concerned national press ads claiming British beef has a carbon footprint “half the global average” and British milk has a carbon footprint “a third lower than the global average.” ASA found consumers were likely to understand the claims as covering full life-cycle emissions, including post-retail stages such as consumption and disposal, while AHDB’s evidence covered cradle-to-retail emissions. Broader challenges about environmental impact and outdoor grazing imagery were not upheld.
🔗 Read more → ASA Ruling

Asset Owners Are Formalizing Responsible Investment Oversight
Principles for Responsible Investment’s (PRI) 2025 reporting data shows asset owners are taking a more structured approach to responsible investment, especially in how they oversee external managers. Among 380 reporting asset owners, representing US$15.6 trillion in assets, around 90% outsource at least part of their portfolios. PRI found growing attention to system-level risks such as climate change and nature loss, stronger review of proxy voting records, and greater use of responsible investment clauses in manager contracts. For ESG strategy, the data points to rising expectations around manager accountability, escalation practices, and climate-risk governance.
🔗 Read more → PRI

Catch up on previous editions → ESGLitigation.com

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