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Tag: JudicialReview

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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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Chagos Islanders v. the United Kingdom 

Date: 11 December 2012 

Court: European Court of Human Rights 

Citation(s): Chagos Islanders v. the United Kingdom, ECHR, Application no. 35622/04 (11 December 2012) 

Short summary  

Former inhabitants of the Chagos Islands and their descendants brought an action to contest the U.K.’s bar on resettling the islands. The European Court of Human Rights affirmed previous judgments from U.K. courts barring the plaintiffs’ petitions for resettlement, in part due to the risks of climate change to the Islands. 

Summary by: Luke Hancox 

Link to Original Judgement

Click here to open the case in PDF format

Weight of decision  

The European Court of Human Rights is the sole body positioned to adjudge claims lodged under the European Convention on Human Rights. Its rulings are generally, though not universally, recognized as valid and enforceable by European parties to the Convention.  

Key facts 

Between the mid-1960s and mid-1970s, the United Kingdom enacted legislation to expel or bar the return of the inhabitants of the Chagos Islands. This was done to facilitate the construction of a United States military base on the island of Diego Garcia. This action was brought by those former inhabitants and their descendants (1,786 people). The applicants brought their action under Articles 6 & 8 of the European Convention of Human Rights (ECHR). 

The litigation of this case involves multiple cases in domestic U.K. courts over the past 50 years regarding the events surrounding the colonization and eventual expulsion of inhabitants of the Chagos Islands. 

On 8 November 1965, the British Indian Ocean Territory (BIOT) Order in Council (SI 1965/120) established a new colony, including the Chagos Islands and other islands formerly part of the Colony of Mauritius and of the Seychelles. When agreeing to give the U.S. military access to the islands, the

U.K. treated the islands as having no permanent population in order to avoid obligations under the United Nations Charter. They claimed the population was overwhelmingly migrant workers who no longer had jobs because the plantation operated on the islands had been acquired by the U.K. government to transfer to the U.S. 

As a result of the above acquisition, the islands’ inhabitants were evacuated. The BIOT Commissioner passed an ordinance in 1971, making it unlawful and a criminal offense for anyone to enter or remain in the territory without a permit. The evacuation caused immeasurable damage to these communities by uprooting their lives and forcing resettlement elsewhere. The U.K. government paid 650,000 pounds sterling (GBP) to Mauritius to aid the resettlement effort.  

A 1975 case brought in the High Court of London led the U.K. government to settle all claims with the islanders. The settlement resulted in monthly payments of 2,976 GBP a month to 1,344 Chagossians between 1982 and 1984. In 2000, a case challenging the 1971 Order was brought in London. The court held that the islanders had no permanent right to the land or its use but that the Order was nevertheless invalid as outside the scope of authority of the BIOT Commissioner. This led to the bar on entry to the islands by the former inhabitants being lifted. However, none of these inhabitants went to live on the islands afterward. The U.K. government also began a study to determine the viability of resettlement of the islands after this case. 

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American Electric Power Co. v. Connecticut 

Date: 20 June 2011 

Court: United States Supreme Court 

Citation(s): Am. Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011) 

Short summary  

Individuals and groups sued electric companies emitting large amounts of carbon dioxide on federal common law grounds. The Supreme court unanimously ruled that, under the Clean Air Act, the Environmental Protection Agency has the exclusive authority to regulate greenhouse gas emissions, displacing any claims against polluters that seek direct judicial regulation.  

Summary by: Gazal Gupta

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 

Several non-profit groups and states claimed violations of federal common law against five private energy corporations emitting significant greenhouse gases (GHGs) (650 million annual tonnes as a group). Plaintiffs argued that significant contributions to global warming constituted interstate nuisance and allowed them to seek a court order limiting GHG emissions from Defendant’s plants. Defendants responded that, under the Clean Air Act (CAA), the Environmental Protection Agency (EPA) has exclusive authority to regulate GHGs.  

Previous instances  

Since Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), there has been no general federal common law recognized by courts in the United States. 

In Massachusetts v. EPA, carbon dioxide and other GHGs were held to fall within the scope of the CAA for regulation by EPA, and states were granted standing to sue for harms incurred by climate change.  

The Second Circuit Court of Appeals reversed the District Court which first heard this case and ruled that petitioners had standing and stated administrable nuisance claims not pre-empted by the grant of regulatory authority to the EPA under the CAA. 

Summary of holding 

On appeal, the Supreme Court affirmed the Second Circuit on petitioner’s standing but unanimously reversed on the administrability of their claims, holding that § 202(a) of the CAA displaced federal common law by granting the EPA the sole power to regulate GHGs. 

Potential takeaways for future climate migration litigation 

  • Creative legal strategies invoking older traditions from federal common law in the United States are unlikely to succeed, especially when a certain field of regulation or enforcement has been occupied by an agency such as the EPA. Harms incurred by climate change should be litigated primarily on statutory grounds in the United States. 
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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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Massachusetts v. EPA

Date: 2 April 2007 

Court: Supreme Court of the United States 

Citation(s): Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007) 

Short summary  

Massachusetts, as well as individual and organizational petitioners, sued the Environmental Protection Agency for its refusal to regulate greenhouse gas emissions under the authority granted it by the Clean Air Act. A narrowly divided United States Supreme Court ruled that Massachusetts had standing in the suit, and that the Agency neglected its statutory duty to regulate air pollutants, including carbon dioxide, which contribute to global warming.  

Summary by: Vaughn Rajah  

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. However, it has already been curtailed in subsequent cases. See West Virginia v. EPA.

Key facts 

In 1999, private organisations filed a rulemaking petition asking the Environmental Protection Agency (EPA) to begin regulating emissions of four greenhouse gases (GHGs), including carbon dioxide (CO2), under § 202(a)(1) of 42 U.S.C.S. § 7521(a)(1), the Clean Air Act (CAA). The CAA requires EPA to prescribe standards applicable to emission of “any air pollutant” from any class of new motor vehicles which, in the EPA Administrator’s judgment, caused or contributed to air pollution reasonably anticipated to endanger public health or welfare. In 2003, EPA under the Bush Administration issued an order denying the petition, asserting that the CAA did not authorise EPA to address global climate change and that, in any event, executive policy addressing global warming warranted EPA’s refusal to regulate in such area.  

Previous instances  

Private organisations, joined by intervenor states and local governments, sought review of EPA’s order refusing rulemaking in the Court of Appeals for the District of Columbia Circuit, which denied review, and then appealed to the Supreme Court. 

One reason the D.C. Circuit denied hearing was its internal split on standing. 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 had, prior to Massachusetts, been most notably developed in the context of environmental suits by Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Lujan established that environmental plaintiffs must show 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.  

Summary of holding 

The questions before the Court were: Do any of the petitioners have standing to challenge EPA’s order refusing to make a rule regulating GHGs? If so, must the EPA regulate emissions of GHGs?  

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Taskin and Ors. v. Turkey (2006) 42 EHRR 50

Date of judgement: 3 March 2005

Court: European Court of Human Rights

Citation(s): Application no. 46117/99, (2006) 42 EHRR 50

Short summary

The European Court of Human Rights held that environmental pollution could affect Art. 8 of the European Convention on Human Rights (right to private and family life). The Turkish Government had violated Art. 8, even if such pollution did not have serious health-related consequences.

Summary by: Makaela Fehlhaber

Link to original Judgement 

Click here to open the case in PDF format

Weight of decision

Given the jurisdiction of the Court of Human Rights, the Taskin judgement is significant and bears considerable weight.

Key facts

The applicants were residents of Bergama. In 1992, the respondent had granted permits to operate a gold mine in Ovacik, a district within Bergama. The applicants contended that as a result of the granting of these permits, they had suffered and continued to suffer the effects of environmental damage – namely the inability to move freely and noise pollution – from the use of machinery and explosives. 

Previous instances

Subsequently, the applicants sought judicial review in the Administrative Court of the Ministry of Environment’s of the decision to issue the permits on the grounds of the risks posed to human health and safety. The application was dismissed by the Court in 1996, but the provincial governor of the area agreed to suspend mining operations for one month in the subsequent year in the interests of the public. 

In 1997 the Supreme Administrative Court overturned the Administrative Court’s decision, finding that the mining activities did not serve the public interests towards health and safety measures. This was later upheld by the Administrative Court. However, irrespective of these decisions and subsequent orders, the mine reopened in an experimental capacity in 2001. 

Ten Turkish nationals lodged an application (no. 46117/99) against the Republic of Turkey to the European Commission of Human Rights in 1998 under Art. 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). The applicants contended that the actions of the respondent violated Art. 2 (right to life) and Art. 8 (right to private and family life) of the Convention. Under Art. 8, the applicants alleged that the use of cyanidation operating processes violated their right to private and family life as its uses posed a significant risk (para. 104). The applicants further stated that their judicial rights had not been upheld in accordance with Art. 6 (right to a fair trial) and Art. 13 (right to an effective remedy) of the Convention. Accordingly, they sought compensation for infringement of these rights, and for failure to enforce a judgement. 

The respondents contended that the arguments submitted in respect of Art. 8 were based on hypothetical risks that may or may not materialise. Accordingly, this could not be categorised as a serious and imminent risk (para. 107) as there needed to be a direct effect (para. 108) upon the lives of the applicants. Furthermore, the respondents submitted that Art. 8 was inapplicable as it had previously been determined that the risks of mining did not present any danger for the health of the local population (para. 9), as the government had conducted an Environmental Impact Assessment. The respondent further submitted that Art. 6 of the Convention did not apply for the same reasons (para. 128). 

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Alaska Department of Environmental Conservation v. EPA 

Date: 21 January 2004 

Court: Supreme Court of the United States  

Citation(s): Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461 (2004) 

Short summary  

Alaska’s Department of Environmental Conservation determined what pollution-restricting technology should be implemented for a mine expansion, per requirements of the Clean Air Act. The federal Environmental Protection Agency intervened, disagreeing with Alaska’s determination of which technology to utilize. The Supreme Court affirmed the Ninth Circuit Court of Appeals’ ruling that the Environmental Protection Agency properly overruled Alaska’s initial determination.  

Summary by: Gazal Gupta 

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 

Under the Clean Air Act (CAA), state agencies must identify the best strategy to prevent air quality from deteriorating in regions that comply with national air quality standards. In part, they must ensure that polluting industries utilise the “best available control technology” to restrict pollution whenever they construct new facilities. Teck Cominco Alaska, a mining firm, applied for a permit to develop a new generator at one of its mines in 1998. The permit was issued by the Alaska Department of Environmental Conservation (ADEC), and it required Cominco to use “Low NOx” technology in all its generators, not just the new one. However, the Environmental Protection Agency (EPA) intervened, claiming that a more advanced technique was available and should be utilized.  

Previous instances  

The EPA’s decision was challenged by ADEC in the Ninth Circuit Court of Appeals, arguing that the EPA lacked the authority to interfere with the state agency’s decision under the CAA. The Ninth Circuit ruled in favour of the EPA. 

Summary of holding 

On appeal, the Supreme Court was asked to settle whether if the EPA, under the CAA, has the authority to overrule a state agency’s decision that a company is using the “best available controlling technology” to prevent pollution. 

§ 165(a)(4) of the CAA stipulates that no large air pollutant-emitting plant can be built unless it is fitted with the best available control technology. Furthermore, when EPA finds that a state is not complying with a CAA requirement governing the construction of a pollutant source, it has the authority to issue an order prohibiting construction, impose an administrative penalty, or file a civil action for injunctive relief under § 113(a)(5) of the CAA. § 167 of the CAA authorizes EPA to take any necessary action, including issuing an order or pursuing injunctive relief, to prevent the construction of a significant pollutant-emitting plant that does not comply with the CAA’s pollutant criteria. 

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