Ch. 2: Environmental Law: A Structural Overview

Pages 100-111: THE IMPACT OF THE CLEAN AIR ACT ON STATE COMMON LAW ACTIONS

On August 20, 2013 the U.S. Court of Appeals for the Third Circuit held that a powerplant’s compliance with the Clean Air Act does not insulate it from liability for nuisance, negligence and trespass under Pennsylvania common law.  The decision in Bell v. Cheswick Generating Station reversed a lower court decision that had dismissed a class action lawsuit by 1,500 people living within a mile of a coal-fired powerplant.  The plaintiffs initially filed suit in Pennsylvania state court, alleging that emissions from the plant had caused ash and other contaminants to land on their property.  The company that owned the plant, GenOn Power Midwest, L.P., had removed the case to federal court and filed a motion to dismiss, arguing that the Clean Air Act preempted the lawsuit because it imposed extensive regulations on the plant’s operations.  In support of its decision the Third Circuit cited the Clean Air Act’s “savings clauses” in both the citizen suit provision, 42 U.S.C. §7604(e), and 42 U.S.C, § 7416.  While noting that the plant’s federal permit mandates that it prevent emissions from harming others, the court also noted that the permit itself has a savings clause providing that it shall not be construed as impairing state common law remedies. 


The court concluded that its decision was mandated by the Supreme Court’s decision in International Paper Co. v. Ouellette (1987) which cited similar savings clause provisions in holding that the Clean Water Act did not preempt state tort litigation based on the law of the source state. Rejecting the company’s arguments that this could cause conflicting state regulatory standards, the Third Circuit concluded that, like the Clean Water Act, the Clean Air Act serves “as a regulatory floor, not a ceiling, . . . that states are free to impose higher standards on their own sources of pollution, and that state tort law is a permissible way of doing so.”


Typo in the first line of Note 4 on p. 104: Where the casebook says “two months after it decided Ouellette,” it should read “two months after it decided Milwaukee II,”  Thanks to Professor Richard Lazarus of Harvard for alerting us to this typo.


Note 5, Page 121: IS MASSACHUSETTS v. EPA’S RECOGNITION OF STANDING IN CLIMATE CHANGE LITIGATION LIMITED TO CASES BROUGHT BY SOVEREIGN STATES?: BELLON AND JULIANA

In Washington Environmental Council v. Bellon, 732 F.3d 1131 (9th Cir. 2013), the Ninth Circuit ruled that an environmental group lacked standing to challenge Washington state’s failure to require a refinery to reduce its greenhouse gas emissions. The court stated that the causal nexus between an agency’s failure to require emissions limits and any harm to the plaintiffs from climate change was too attenuated to serve as a basis for standing.  It also noted that the refinery’s emissions were too small a part of global emissions to make a difference in mitigating the worldwide problem.  The court interpreted Massachusetts v. EPA (p. 117) as upholding standing only when a sovereign state had suffered procedural injury.  In February 2014 the Ninth Circuit denied rehearing en banc in the case over the dissents of three judges. 741 F.3d 1025 (9th Cir. 2014).


In November 2016 a federal district court in Oregon rejected a motion to dismiss a “future generations” climate change lawsuit against the President and top U.S. officials.  Juliana v. U.S., 217 F.Supp. 3d 1224 (D. Ore. 2016). The plaintiffs, who include 21 people between the ages of eight and nineteen, allege that the federal government knew about the dangers of climate change for more than 50 years, but failed to take action to protect them.  The children argue that this violated their substantive due process rights to life, liberty and property as well as the government’s public trust obligations to hold natural resources in trust for future generations. The plaintiffs seek a declaration that their rights have been violated and an order requiring federal officials to develop a plan to control emissions of greenhouse gases. The court rejected the government’s argument that the case raises a non-justiciable political question and has allowed discovery to proceed.  The Justice Department has asked the Ninth Circuit to issue a writ of mandamus to halt discovery and a trial scheduled to start in February 2018, arguing that the plaintiffs lack standing and have failed to state a justiciable claim.  Federal district judge Ann Aiken distinguished the Bellon case by noting that on a motion for summary judgment she must accept the plaintiffs allegations of injury and causation as true and that the lawsuit seeks to redress much more significant sources of GHG emissions than the refineries involved in Bellon.


Pages 124-125: PREEMPTION, THE DORMANT COMMERCE CLAUSE AND CONSTITUTIONAL LIMITS ON STATE INITIATIVES TO COMBAT CLIMATE CHANGE


In Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070 (9th Cir. 2013), a divided panel of the U.S. Court of Appeals for the Ninth Circuit rejected a constitutional attack on California’s ambitious effort to reduce carbon emissions in the state.  The court found that California’s Low Carbon Fuel Standard (LCFS), which requires a ten percent reduction in the carbon intensity of fuels used in the state, did not violate the dormant commerce clause.  Even though the LCFS used the location from which fuel was transported as one factor in calculating lifecycle carbon intensity of fuels, the court found that the legislation was not facially discriminatory against interstate commerce because the location where fuels originate is only one factor that is considered and it is considered properly with respect to location’s impact on each fuel’s carbon footprint.  The court found that the law had no protectionist purpose and that it disadvantaged California corn ethanol producers because they had to transport the corn they used into the state while Brazilian ethanol producers were advantaged because their products were efficiently shipped to California by sea even though they traveled greater distances.  The Ninth Circuit panel also rejected the notion that the LCFS tries to control extraterritorial conduct in a manner that violates the dormant commerce clause. “The Commerce Clause does not protect Plaintiffs’ ability to make others pay for the hidden harms of their products merely because those products are shipped across state lines.  The Fuel Standard has incidental effects on interstate commerce, but it does not control conduct wholly outside the state.”  The court held that §211(c)(4)(B) of the Clean Air Act, which waives for California the express preemption provisions of the Act, did not insulate the state from liability if it otherwise violated the dormant commerce clause. Having rejected the facial discrimination claim, the court remanded the case back to the lower court to assess whether the law unduly burdened interstate commerce under the Pike v. Bruce Church test.  The dissenting judge would have held that the law was facially discriminatory because it used location as one factor in calculating carbon intensity.


Page 167: DESIGNING A NATIONAL GHG CONTROL PROGRAM - THE PRESIDENT’S CLIMATE ACTION PLAN

In June 2013, President Obama announced a comprehensive Climate Action Plan that concentrates on actions the executive branch can take without new legislation from Congress.  Noting that U.S. carbon emissions in 2012 fell to the lowest level in two decades, the Plan promises to build on this progress. The Plan directs the EPA Administrator to expedite the issuance of strict standards to control carbon emissions from new and existing power plants. It pledges to tighten fuel economy standards and to improve energy efficiency in American homes and businesses.  To promote the goal of doubling electricity generation from renewable sources by 2020, the Plan instructs the Secretary of Interior to issue permits for an additional 10 gigawatts of renewable energy production on public lands by 2020.  The Plan also seeks to prepare the U.S. to adapt to the impacts of climate change by improving the resiliency of energy infrastructure, conserving land and water resources, managing drought, reducing wildfires, and preparing for floods. 

President Obama pledged to lead international efforts to address global climate change.  He sought to terminate support for both public financing of new coal plants overseas and for fossil fuel tax subsidies. The plan promised to encourage free trade in clean energy technologies, such as solar, wind, hydro, and geothermal and to encourage a worldwide transition from coal to natural gas as a “bridge fuel” for countries to transition to cleaner sources of energy.  On March 28, 2017, President Donald Trump issued Executive Order 13,783 on “Promoting Energy Independence and Economic Growth.”  A copy of the order is available online at: https://www.gpo.gov/fdsys/pkg/FR-2017-03-31/pdf/2017-06576.pdf.  The order requires agencies to conduct an immediate review of all actions that potentially burden the safe, efficient development of domestic energy resources. It directs that President Obama’s June 2013 Climate Action Plan be rescinded along with Executive Order 13,653 on Preparing the United States for the Impacts of Climate Change, the September 2016 Presidential Memorandum on Climate Change and National Security, and the Council on Environmental Quality’s Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews (81 Fed. Reg. 51866 (Aug. 5, 2016)).

Page 173: THE CONGRESSIONAL REVIEW ACT

Opponents of EPA regulations to control greenhouse gas (GHG) emissions from power plants tried to use the Congressional Review Act (CRA) to veto the EPA regulations through the CRA’s special fast-track procedure permitting an up-or-down vote in each house of Congress.  On Nov. 17, 2015, the U.S. Senate passed a joint resolution of disapproval of EPA’s new source performance standard by a vote of 52-46 with only three Democrats supporting the resolution and three Republicans voting against it. The disapproval resolution was adopted by the House by a vote of 235-188 on Dec. 1, 2015, even as the Paris climate negotiations were taking place.  Only four Democrats supported the resolution, while 10 Republicans voted against it.  A resolution disapproving EPA’s GHG regulations for existing power plants passed the Senate on Nov. 17, 2015 by a vote of 52-46.  The resolution passed the House by a vote of 242-180 on Dec. 1, 2015.  As promised, President Obama vetoed both joint resolutions of disapproval on Dec. 18, 2015. As a result, the regulations remained in effect.


In 2017, with Republicans in control of both Congress and the White House, 14 resolutions of disapproval passed both houses of Congress pursuant to the Congressional Review Act and were signed into law.  Three environmental regulations were vetoed by these resolutions.  Public Law 115-5 vetoed the Interior Department’s “stream protection rule” governing disposal of debris from mountaintop coal removal (Feb. 16, 2017).  Public Law 115-12 vetoed a Bureau of Land Management (BLM) rule governing land use plans under the Federal Land Policy and Management Act (March 27, 2017).  Public Law 115-20 vetoed Interior Department regulations governing the “Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures on National Wildlife Refuges in Alaska” (April 3, 2017).  After passing the House, a resolution to veto BLM regulations governing methane emissions from oil and gas operations on federal lands surprisingly was defeated in the Senate on May 10, 2017, when three Republican Senators joined all 48 Democrats in voting against the resolution.


Page 183, Note 6: OMB REVIEW OF RULEMAKING, PRESIDENT TRUMP’S TWO-FOR-ONE EXECUTIVE ORDER

For sharply contrasting views concerning how well review of EPA rules by the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) functioned during the Obama administration, see Cass R. Sunstein, The Office of Information and Regulatory Affairs: Myths and Realities (available online at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2192639), and Lisa Heinzerling, Inside EPA: A Former Insider’s Reflections on the Relationship between the Obama EPA and the Obama White House (available online at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2262337).

On January 30, 2017, President Trump signed Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs. President Trump described it as mandating “the largest cut by far, ever in terms of regulation” and the key to “cutting regulations massively” for businesses. The order requires federal agencies to repeal two existing regulations for each new regulation they issue and it gives each agency a regulatory budget of zero for the imposition of aggregate costs on industry during the current fiscal year. 

President Trump’s executive order has legal qualifiers.  It purports not to “impair or otherwise affect” agencies’ existing legal authority and it requires federal agencies to comply with the Administrative Procedure Act (APA) when repealing rules.  The APA’s judicial review provisions direct courts to strike down agency actions that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  If an agency’s only justification for repealing a rule is to comply with President Trump’s new directive, it should be possible to convince a reviewing court that the action is arbitrary enough to be struck down.