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Tag: UnitedStates

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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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Sanchez v. Mayorkas

Date: 7 June 2021

Court: United States Supreme Court

Citation: 141 S. Ct. 1809 (2021)

Short summary  

The U.S. Supreme Court foreclosed a pathway to permanent residency for certain Temporary Protected Status (TPS) recipients. TPS is commonly used to allow nationals of countries experiencing environmental disasters to temporarily live and work in the United States.

Summary by: Vanessa Rivas-Bernardy

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

In 2001, El Salvador experienced several severe earthquakes, and the U.S. government designated the country for Temporary Protected Status (TPS). TPS is a humanitarian relief program through which individuals in the United States who are nationals of certain countries designated by the U.S. president are granted permission to live and work in the United States for a fixed period of time. The president may designate countries experiencing unsafe living conditions, such as armed conflict or environmental disasters, for as long as those conditions last.

Petitioner Jose Santos Sanchez was a Salvadoran national who entered the United States in 1997 without inspection by an immigration officer at a port of entry. When El Salvador was designated for TPS, Sanchez applied and was granted TPS that same year, notwithstanding his entry to the United States without inspection as that typically does not preclude a grant of TPS.

In 2014, Sanchez applied for Lawful Permanent Residence (LPR) status under Section 1255 of the U.S. immigration code. Section 1255 governs the adjustment to LPR status by nonimmigrants, who are defined as foreign nationals with a temporary grant of lawful presence. It generally requires “an admission” into the country, which is defined as “the lawful entry of the [noncitizen] into the United States after inspection and authorization by an immigration officer.” 8 U.S.C. 1255.

Previous instances

U.S. Citizenship and Immigration Services—the adjudicating agency—denied Sanchez’s application for lawful permanent residence, determining he was ineligible because he entered the country without inspection. Sanchez challenged the decision, and the district court found for Sanchez, reasoning that because Sanchez’s TPS conferred him with nonimmigrant status, he was eligible for Section 1255 adjustment. The Third Circuit Court of Appeals reversed the district court’s decision, holding that Sanchez was ineligible for permanent residency despite his TPS. Two other circuit courts of appeal shared the Third Circuit’s approach, while three had reached the opposite conclusion.

Summary of holding

The Supreme Court unanimously held that the petitioner was not eligible for LPR status. Although the TPS statute provides that TPS recipients who apply for permanent residency should be considered to have nonimmigrant status, which is the first requirement for Section 1255 adjustment of status, the Court held the admission requirement was a second, separate requirement that the petitioner did not satisfy. The Court reasoned that the TPS statute provision that confers recipients with nonimmigrant status “does not aid the TPS recipient in meeting 1255’s separate admission requirement,” as “[l]awful status and admission are distinct concepts in immigration law, and establishing the former does not establish the latter.” Thus, the Court concluded that a grant of TPS does not constitute an admission, so any TPS recipient who—like the petitioner—has not been lawfully admitted to the country is ineligible for permanent residency.

Potential takeaways for future climate migration litigation

  • Although TPS can be renewed, and although it provides work authorization and protection from deportation, it is a temporary status. While the decision in Sanchez v. Mayorkas does not implicate the president’s ability to designate or renew TPS, itforecloses the path to permanent residency for many TPS recipients. TPS recipients who have been “admitted” to the United States (by way of a student or visitor visa, for example) still may be eligible for permanent residency. But any recipient who entered the United States without inspection and has never been “admitted” to the country cannot, without going through any other immigration pathway, become an LPR. Future litigation and policy advocacy must seek lasting protection for beneficiaries of temporary and partial forms of relief like TPS.
  • TPS has been a powerful tool for providing quick and widespread relief to individuals from countries experiencing large-scale environmental disasters. Because the U.S. president has the authority to designate and renew TPS, the program can provide relief while avoiding the lengthy lawmaking process otherwise required to create new immigration benefits. Additionally, the requirements are relatively simple: Any national of a designated country who has been in the United States continuously since the country’s designation is eligible for TPS (provided they are not excluded by ineligibility criteria). As such, it is a fast way to confer benefits on relatively large populations, which is crucial for providing protection to individuals affected by rapid-onset disasters caused by climate change.
  • The Biden Administration acknowledged the above in its October 2021 report on the Impact of Climate Change Migration—the U.S. government’s first report addressing this nexus—which came out of President Biden’s February 2021 executive order (E.O. 14013) titled “Rebuilding and Enhancing Programs to Resettle Refugees and Planning for the Impact of Climate Change on Migration.” Though many countries seriously impacted by climate change have not been designated for TPS, like Pakistan, the Biden Administration has extended several existing TPS designations and has designated new countries for TPS in the years since the report. Since TPS is a form of relief that already exists and is thus more politically and logistically feasible to implement than creating new immigration pathways, insofar as the Biden Administration follows through on its commitment to addressing climate change migration, it is likely to do so in part through continuing to expand TPS.
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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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Native Village of Kivalina v. ExxonMobil Corp.

Date: 12 September 2012

Court: US Court of Appeals, Ninth Circuit

Citation: 696 F.3d 849

Short summary

The Village of Kivalina, a self-governing, federally recognized tribe of Inupiat Native Alaskans, together with the City of Kivalina, brought action against twenty-four oil, energy, and utility companies for federal common law nuisance, based on emission of greenhouse gases which contributed to global warming, causing the erosion of arctic sea ice and the displacement of the inhabitants. Defendants filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), contending that Plaintiff’s claims were non-justiciable political questions and that Plaintiffs lacked Article III standing. The district court granted the motion to dismiss, the Ninth Circuit affirmed dismissal and the Supreme Court denied certiorari.

Summary by: Jane Kundl

Link to original judgement

Click here to open the case in PDF format

Weight of decision

Binding on the Ninth Circuit in the United States, persuasive authority for other circuits and state courts.

Key facts

Kivalina is a small city located on the tip of a six-mile barrier reef on the northwest coast of Alaska, approximately 70 miles north of the Arctic Circle. The Village of Kivalina is a federally-recognized tribe of Inupiat Native Alaskans who live in the municipality. Of 400 residents, 97 percent were indigenous Alaskans. Sea ice that forms a coastline in the fall, winter, and spring protected the land from storms and erosion. But as the sea ice became thinner, formed later, and broke up earlier, erosion and damage to property from sea storms has increased, threatening the entire city and requiring relocation of inhabitants.

Kivalina’s claim was based on greenhouse gas emissions leading to global warming which in turn caused the reduction in sea ice. They argued that the defendants, 24 oil, gas, and utility companies, (the “Energy Producers”) contributed substantially to global warming and thus were responsible for their injuries. They brought a claim under federal common law nuisance, alleging that the production of greenhouse gas emissions constitutes “a substantial and unreasonable interference with public rights, including the rights to use and enjoy public and private property in Kivalina.” (p. 854). State law claims of concert of action and conspiracy to mislead were brought as well. Because the federal law claim was dismissed, the merits of the state law claims were not addressed.

Previous instances

The lower court, the US District Court of Northern California, Oakland Division, granted defendants’ motion to dismiss on two grounds:

  • First, that the issue of greenhouse gases causing global warming was an inherently non-justiciable political question, because the court would have to make determinations regarding energy and environmental policy without guidance from the political branches.
  • Second, that Kivalina lacked Article III standing as they presented no facts showing the injuries were “fairly traceable” to the actions of the Energy Producers. Plaintiffs could not establish the “substantial likelihood” or “seed” causation standards. The court also concluded that Kivalina’s injury was too geographically remote from the source of harm to infer causation.

Plaintiffs appealed and the Ninth Circuit court upheld the motion. Plaintiffs filed a petition for certiorari with the Supreme Court which was denied.

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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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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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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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Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex. rel., Barez

Date:  1 July 1982

Court: Supreme Court of the United States

Citation:  458 U.S. 592

Short summary 

The United States Supreme Court held that a State can establish standing to bring suit under the doctrine of parens patriae when its quasi-sovereign interests have been injured. Quasi-sovereign interests include those interests that the State has in the health and well-being – both physical and economic – of its citizens. When Virginia farmers discriminated against Puerto Rican farmworkers in violation of federal statute, Puerto Rico alleged an injury sufficient to establish parens patriae standing.

Summary by:  Sara Sam-Njogu

Link to original judgment

Click here to open the case in PDF format

Weight of decision 

Given the jurisdiction of the US Supreme Court, this decision is significant for States, and potentially other countries, that wish to establish standing when a large segment of their population has been physically and/or economically harmed.

Key facts

Respondent was the Commonwealth of Puerto Rico, which sued several apple farmers in the state of Virginia. Puerto Rico contended that despite a substantial advertised need for temporary farm laborers to pick the large 1978 apple crop, its farmworkers had been improperly refused employment based upon their Puerto Rican citizenship, illegal discrimination under several federal laws. Many of the workers were advised by the US Department of Labor not to travel to Virginia because growers were refusing to employ the workers who had already arrived, and those who had been employed were dismissed quickly for alleged unproductivity. The growers were hiring foreign workers instead. Puerto Rico sought to establish parens patriae standing because this discrimination invaded the Commonwealth’s interest in its citizens’ full and equal participation in the federal employment service scheme under the relevant federal laws.

Previous instances 

In 1979, Puerto Rico filed suit in United States District Court for the Western District of Virginia (469 F.Supp. 928). While the court found that Puerto Rico may be capable of asserting parens patriae interests for some cases, it held that the relatively small number of farmworkers refused employment in this case – approximately 787 – meant that the injury was too small to Puerto Rico’s economy overall to establish standing.

On appeal, the Fourth Circuit reversed, holding that the District Court’s interpretation of the issue was too narrow (632 F.2d. 365). Instead, the proper focus was the “deliberate efforts to stigmatize the labor force as inferior,” conduct that would have an indirect effect on a substantial portion of Puerto Rico’s citizenry. It found the injury sufficient to establish parens patriae standing.

The Supreme Court granted certiorari, leading to the current holding.

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THE TRAIL SMELTER ARBITRATION CASE (UNITED STATES VS CANADA)

Date of judgement: 16 April 1938 and 11 March 1941

Citation(s): UN REPORTS OF INTERNATIONAL ARBITRAL AWARDS, Trail Smelter case (USA v. Canada), 16. April 1938 and 11. March 1941, Volume III pp. 1905-1982

Short summary 

This arbitration case between the United States (U.S.) and Canada is the foundational decision for the development of the prohibition of significant transboundary environmental damage in international environmental law. 

Summary by: Robert Los

Link to original judgement 

Click here to open the case in PDF format

Weight of decision 

The decision(s) of the Arbitrational Tribunal continue to bear immense weight in the realm of international law.  

Key facts

A zinc and lead smelter operating since 1896 in the Canadian town of Trail in British Columbia, located 16 km from the U.S. border, became the subject of dispute in this case. 

Between 1925 and 1927, two smokestacks were added to the plant. This caused an increase in pollutant emissions, specifically a doubling of sulfur dioxide. This reached U.S. soil in the form of “acid rain” and caused crop failures and damage in the Columbia River Valley (Washington State). Between 1927 and 1935, the U.S. government protested to the Canadian government regarding this damage to the Columbia River Valley. 

In 1928, both governments commissioned the International Joint Commission by the United States and Canada to conduct arbitration proceedings. The Commission submitted its final report in 1931, which proposed that the Canadian government pay damages of $350,000 USD for the damage caused, and that emissions from the Trail plant be limited. 

Canada paid the damages. However, no improvements were seen with regard to pollutant emissions, and the conflict began again. For this reason, in 1935 the Convention for Settlement of Difficulties Arising from Operation of Smelter at Trail, B.C., was signed, and the parties agreed to have the following questions settled by arbitration:

1. Whether the Trail plant caused any damage to the State of Washington since 1932, and if so what indemnity should be paid?

2. If the answer to the first question is in the affirmative, whether said damage should be stopped in the future, and if so, to what extent?

3. If the damage should be stopped, what measures should the Trail Smelter adopt? (Possibly subject to conditions or stipulations).

4. What indemnity or compensation, if any, should Canada pay following the answers to questions 2 and 3?

Summary of holding

In its first decision in 1938 regarding the first question, the Arbitration Tribunal determined that Canada had to pay damages to the U.S. government for the years 1932 to 1937. However, this compensation payment only applied to the damage caused to the soil of the Columbia River Valley. The pollution of the air was not considered to be damage, but rather only a transport medium for the exhaust gases. The U.S. also tried to prove damage to forestry, agriculture, and livestock, but the tribunal rejected this for lack of convincing evidence. 

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