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Summary Author: David Cremins

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West Virginia v. EPA 

Date: 30 June 2022 

Court: Supreme Court of the United States 

Citation(s): West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022) 

Short summary  

Conservative states and coal companies challenged potential rulemaking by the Environmental Protection Agency which could phase out electricity generation from coal-fired power plants in the United States. In a landmark ruling, the Supreme Court sided with petitioners, holding that the Clean Air Act does not permit such extensive regulations. As a result, it is now significantly more difficult for the federal government to limit carbon emissions absent new legislation from Congress.  

Summary by: David Cremins

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

This decision is binding on all United States federal and state courts. 

Key facts 

The Environmental Protection Agency (EPA) has authority to regulate the emission of carbon dioxide and other greenhouse gases from certain sources under the Clean Air Act (CAA). See Massachusetts v. EPA. Following Massachusetts, typically only the federal government can be sued for failing to adequately limit (or overly limiting) carbon pollution under the CAA, see City of New York v. Chevron; American Electric Power Co. v. Connecticut, and then usually only by states, not individuals, see Washington Environmental Council v. Bellon.  

Under § 111 of the CAA, EPA can develop a “best system of emissions reduction” to limit their accumulation in the atmosphere. Historically, this authority has been exercised by, for instance, requiring both new and existing power plants to utilize certain technologies to limit carbon emissions. The implementation of these rules is then carried out by the states. See Alaska Department of Environmental Conservation v. EPA. With the need to quickly decarbonize to combat the climate crisis, however, the EPA has, under Democratic presidential administrations, sought to curtail carbon emissions more aggressively from the U.S. energy sector, especially from coal-fired power plants.  

Previous instances  

In 2015, under the Obama Administration, the EPA proposed the Clean Power Plan (CPP) rule which, in part, encouraged “generation shifting” from coal-fired to natural gas-fired power plants and renewable energy sources via a system of credits and offsets, as part of a cap-and-trade system. In 2016, the Supreme Court blocked implementation of the CPP rule and, under the Trump Administration, the EPA instead proposed the less ambitious Affordable Clean Energy (ACE) rule, claiming that § 111(d) of the CAA did not allow it to issue industry-wide generation-shifting rules as part of a best system of emissions reduction. Several states sued the EPA for unduly constraining its own authority and the D.C. Circuit agreed, blocking the ACE rule in American Lung Association v. EPA, No. 19-1140 (D.C. Cir. 2021). West Virginia and other states, along with private coal companies, then intervened and brought this case to the Supreme Court, seeking to vacate the D.C. Circuit’s holding and prevent the EPA from ever again promulgating a rule like the CPP. 

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City of New York v. Chevron Corp. 

Date: 2 April 2021 

Court: United States Second Circuit Court of Appeals 

Citation(s): City of N.Y. v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021) 

Short summary  

New York City sued the five largest producers of fossil fuels for contributing to climate change under state tort law. The Second Court of Appeals affirmed the District Court’s dismissal of the suit, holding that state common law claims to redress greenhouse gas emissions are displaced by federal common law, which in turn is displaced by the Clean Air Act.  

Summary by: David Cremins

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

This decision is binding on all courts in the Second District and persuasive in other Districts.  

Key facts 

New York City filed a federal lawsuit in the Southern District of New York against the five largest investor-owned fossil fuel producers seeking costs the City had incurred and would continue to incur to protect itself and its residents from the impacts of climate change. The City alleged that the defendants “produced, marketed, and sold massive quantities of fossil fuels” despite knowing for many years that the use of fossil fuels caused emissions of greenhouse gas emissions that would accumulate and remain in the atmosphere for centuries, causing “grave harm.” The City laid alleged state common law tort claims of public and private nuisance and illegal trespass, seeking money damages and an injunction to abate past injuries.  

Previous instances  

The district court dismissed the lawsuit, holding that federal common law should govern the City’s claims because they were based on transboundary emissions. The court further concluded that the Clean Air Act displaced any federal common law claims (see American Electric Power v. Connecticut) with regards to domestic emissions and that foreign emissions should not be regulated by a domestic court, so as not to infringe on the political branches. The City appealed to the Second Circuit Court of Appeals seeking reversal of the granted motion to dismiss.  

Summary of holding  

The Second Circuit Court of Appeals affirmed the dismissal of New York City’s lawsuit seeking climate change damages from oil companies, following the reasoning of the district court. First, the Second Circuit held that federal common law displaced the City’s state-law public nuisance, private nuisance, and trespass claims because the lawsuit would regulate cross-border greenhouse gas emissions, albeit “in an indirect and roundabout manner,” and because state law claims “would further risk upsetting the careful balance that has been struck between the prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.” The Second Circuit then held that the Clean Air Act, in turn, displaced federal common law claims related to domestic emissions. The Second Circuit cited American Electric Power Co. v. Connecticut, 564 U.S. 410 (2011), as establishing “beyond cavil” that the Clean Air Act displaced federal common law nuisance suits to abate domestic transboundary greenhouse gas emissions. 

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Future Generations v. Ministry of the Environment and Others

Date:  5 April 2018 

Court: Supreme Court of Justice of Colombia

Citation(s):  STC4360-2018

Short summary  

25 young plaintiffs sued the Colombian government to stop deforestation in the Amazon rainforest. A 4-3 majority on Colombia’s Supreme Court ruled for the plaintiffs – finding that their and future generations’ fundamental rights were threatened by loss of biodiversity and climate change – and ordered the Colombian government to stop deforestation by 2022, which it failed to do.

Summary by: Saw Aung Aung and David Cremins

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

The Supreme Court of Justice is the final arbiter of constitutional questions in Colombia and its ruling is binding on both government and private actors. However, compliance issues following the ruling in Future Generations highlight the limits of the Court’s power..   

Key facts 

Between 2015 and 2016, deforestation in the Amazonas region of Colombia increased by 44%. This poses a risk not just to the region but to the world, as the Amazon acts as the “lungs of the earth” and is critical to global sustainability; deforestation impacts water supplies, degrades soil health, and increases carbon emissions.

This rapid increase in deforestation was in part caused by the end of hostilities between the Colombian government and the Revolutionary Armed Forces of Colombia, which created a power vacuum in rural areas of the country. Small farmers, large ranchers, and corporations alike began clearing rainforest rapidly to make room for agriculture, ranching, and mining, and the state was largely powerless to stop this trend.

Colombia, as a signatory to the 2015 Paris Agreement and other international mechanisms, has obligated itself to reach net zero emissions. However, as is true around the world, limited progress has been made towards these goals.

Dejusticia, a social justice non-profit based in Bogotá, grew concerned about the deforestation and the climate crisis. So, they brought together 25 young people, ranging in age from 7 to 25 years old, as plaintiffs in a tutela action – directly asserting a violation of their individual constitutional rights to life, health, water, food, and a healthy environment – in Colombia’s Constitutional Court system in January 2018.

Previous instances  

The first court to hear this case dismissed the complaint on standing grounds, holding that the plaintiffs’ claim was collective, rather than individual, and therefore not properly pled as a tutela action; the plaintiffs appealed to the Supreme Court of Colombia.

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Washington Environmental Council v. Bellon 

Date: 17 October 2013 

Court: United States Ninth Circuit Court of Appeals 

Citation(s): Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1141-46 (9th Cir. 2013) 

Short summary  

Washington state residents and non-profits sued the Washington State Department of Ecology over its failure to regulate greenhouse gas emissions in accordance with the Clean Air Act. The Court of Appeals vacated the District Court below and held that Plaintiffs failed to show standing under Article III of the U.S. Constitution by failing to establish causation for and the redressability of their injuries. 

Summary by: David Cremins

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

The ruling by the Circuit Court of Appeals holds precedential authority in the Ninth District (Washington, Oregon, California, Nevada, Idaho, Montana, Hawaii, and Alaska) and persuasive authority in other U.S. Circuits.  

Key facts 

Washington State has five oil refineries subject to regulation under § 202(a) of the Clean Air Act (CAA) and is required by the Environmental Protection Agency (EPA) to develop a State Implementation Plan (SIP) to define greenhouse gas (GHG) emission limits (known as National Ambient Air Quality Standards [NAAQS]) for these refineries, which accounted for about 6% of Washington’s state emissions in 2008.  

Under Article III of the United States Constitution, federal courts have the power to hear “cases and controversies” between parties with an adversarial interest in a judicial ruling. Standing doctrine has been most notably developed in the context of environmental suits by the cases described below. 

Previous instances  

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), established that environmental plaintiffs must establish 1) a concrete, particular injury they have suffered or will imminently suffer that 2) is causally related to the (in)action of the actor they are suing and 3) that a court order could sufficiently redress their harm.  

Massachusetts v. EPA held that GHGs are air pollutants subject to regulation under the CAA, a major win for environmental litigation. However, it also put in place a heightened standard for standing for non-state actors seeking to enforce EPA regulations, e.g., by promulgation of specific NAAQS in states’ SIPs.  

Summary of holding 

Plaintiffs’ claim (that Washington’s SIP failed to establish NAAQS that limited GHG emissions at key refineries) is not addressable by courts because they lack Article III standing. Non-profit environmental groups and individuals plausibly sustain economic, recreational, and health injuries due to CO2 pollution and attendant climate change. However, the chain of causation between these refineries’ GHG emissions and global climate change is too weak and attenuated to satisfy the second prong of the standing test. Further, any order to regulate these refineries would have a negligible effect on redressing plaintiffs’ localized injuries incurred because of global temperature rise. This is distinguishable from Massachusetts, wherein Massachusetts was afforded relaxed standing requirements due to its status as a quasi-sovereign, thereby satisfying Lujan. This “special solicitude” does not extend to these non-state litigants, and even if it did their claims would still be tenuous. 

Potential takeaways for future climate migration litigation 

  • This case demonstrates the difficulty of achieving standing before United States federal courts in cases concerning specific harms from global climate change. It is one of many cases that could demonstrate this proposition, but it is notable because it involves a liberal-leaning court refusing to enjoin a liberal state from enacting federally mandated regulation of its fossil fuel emissions.  
  • Such standing issues may not be as prevalent in migration cases where an injury is already established, and a government agency’s action can provide a clear remedy, such as resettlement.  
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In re Katrina Canal Breaches Litigation 

Date: 18 November 2009

Court: United States District Court, Eastern District of Louisiana

Citation: 647 F. Supp. 2d 644

Short summary  

Hundreds of thousands of homes were lost in Hurricane Katrina and most homeowners’ insurance policies excluded them from compensation. This led many victims of Katrina to sue the United States government under the Federal Tort Claims Act (FTCA), alleging the U.S. Army Corps of Engineers (Corps) failed to properly maintain the Mississippi River Gulf Outlet, leading to the breach of one of New Orleans’ levees. The District Court held the U.S. was not immune from such a suit and held the Corps liable to some of the plaintiffs. This judgment was later reversed by the Fifth Circuit Court of Appeal, on the grounds that the U.S. has sovereign immunity under the FTCA from such claims. 

Summary by: David Cremins

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

The ruling by the Eastern District of Louisiana District Court, insofar as its logic was affirmed by the Court of Appeals, holds precedential authority in the Fifth District (Texas, Louisiana, Mississippi) and persuasive authority in other U.S. Circuits (see, e.g., favourable analysis in the Northern and Central Districts of Illinois). However, this ruling has subsequently been read narrowly by the same Eastern District court (holding there must be “ample record evidence” the government neglected its duty to maintain waterways implicated in flooding).  

Key facts 

Under the Federal Tort Claims Act (FTCA; 28 USC §171), the U.S. government is immune from liability if its (in)action can be classified as a discretionary function (i.e., a policy decision left to an agency via legislation) rather than a specifically delegated ministerial duty not executed with due care.  

Under the Flood Control Act (FCA; 33 USC §702c), the U.S. government is immune from liability for damage stemming from its flood control efforts.  

The U.S. Army Corps of Engineers’ (Corps) were charged with construction, maintenance, and operation of the Mississippi River Gulf Outlet (MRGO), a navigational channel. This mandate was separate from the Corps’ efforts directed at flood control and levee construction and maintenance in southern Louisiana.  

Over decades, the Corps failed to prevent the MRGO from expanding well beyond its intended width, destroying wetlands which are protective against storm surges. This in contravention of the National Environmental Policy Act and despite repeated internal and external reports warning of the danger of not shoring up the MRGO’s banks. This failure was a substantial cause of the breach of a levee, leading to catastrophic flooding of St. Bernard parish in the New Orleans metropolitan area.  

Previous instances  

This case relies on Central Green v. United States (U.S. Supreme Court, 2001), wherein Justice Stevens held that the U.S. was not entitled to immunity under the FCA from damage caused by any and all flood waters. Instead, the government must show that flooding is connected with projects serving a primarily flood control purpose, in order for mismanagement of such projects to grant immunity.  

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Ontunez Tursios v. Ashcroft

Date: 13 August 2002

Court: United States Court of Appeals, Fifth Circuit

Citation: 303 F.3d 341 (5th Cir. 2002)

Short summary 

A Honduran man, fleeing targeted violence stemming from a land dispute and exacerbated by hurricane damage, was denied refugee status in the United States for failing to establish a nexus between his persecution and the grounds for asylum.

Summary by: David Cremins

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision 

This decision is a binding part of the asylum case law developed in the Fifth Circuit (Louisiana, Mississippi, and Texas) and may be persuasive in other jurisdictions in the United States. 

Key facts

The applicant for asylum, Mr. Ontunez-Tursios, moved to the town of La Ceiba in 1994 and joined other campesinos in cultivating a piece of coastal land known as Las Delicias. In 1996, a group of businessmen, wishing to sell Las Delicias to Korean investors, challenged the campesinos possession of the land, unleashing a campaign of violence and intimidation against them, during which at least two campesinos were assassinated. Mr. Ontunez-Tursios found out he was on a hit list and, after being directly threatened several times, fled to the United States, where he applied for asylum in October 1999.

During this violent dispute over land possession, in October 1998 Hurricane Mitch devastated Honduras, including Las Delicias. The storm ruined Mr. Ontunez-Tursios’ land as well as key documentary evidence against the businessmen pursuing him and the other campesinos.

Previous instances

The immigration judge who first heard Mr. Ontunez-Tursios’ case denied him refugee status because his claim did not arise on account of the enumerated grounds for persecution. The Board of Immigration Appeals (BIA) agreed that he failed to show a nexus between his persecution and either his race, religion, nationality, membership in a particular social group, or political opinion, leading to this appeal before the Fifth Circuit.

Summary of holding

In a 2-1 panel decision, the Fifth Circuit affirmed the rulings below, finding that the BIA correctly dismissed Mr. Ontunez-Tursios’ contention that his leadership in the land conflict did not constitute a political opinion or membership in the particular social group of “land rights leaders”. Stripping away the context of land struggle and the impacts of Hurricane Mitch, the court held that his “evidence showed no motive of the persecutors other than a private, economic one.” The court further found that Mr. Ontunez-Tursios did not qualify for withholding of removal because he was at no risk of torture in his home country, and that the Honduran government had not implicitly or explicitly acquiesced to his persecution or torture.

Potential takeaways for future climate migration litigation

  • Increasingly, claims for asylum and other humanitarian protections will have to be considered in the context of climate change. The devastation wrought by Hurricane Mitch in Honduras provides an early example of how an already difficult situation – a violent battle over valuable land between the upper and lower classes in a society – is made worse following disasters. Advocates for climate migrants should note how fights over land and other forms of social violence intermix with a changing climate, including through slow-onset shifts in conditions.
  • As in other cases in jurisdictions around the world, the harm from the climate disaster itself – destruction of land and evidentiary documents – had no bearing on Mr. Ontunez-Tursios’ unsuccessful claim for asylum, even as it exacerbated his vulnerability in his home country.
  • Under United States law, the nexus prong – that persecution must be “on account of” one of the five grounds first laid out in the 1951 Refugee Convention – is often narrowly construed, such that even clear instances of persecutory violence, whether or not connected to climate change, do not qualify even sympathetic applicants such as Mr. Ontunez-Tursios for refugee status.
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