Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future

Congressional research reportAug 20, 2014

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Climate Change and Existing Law: A Survey

of Legal Issues Past, Present, and Future

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August 20, 2014

Congressional Research Service

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R42613

Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future

Summary

This report surveys existing law for legal issues that have arisen, or may arise in the future, on

account of climate change and government responses thereto.

At the threshold of many climate-change-related lawsuits are two barriers—whether the plaintiff

has standing to sue and whether the claim being made presents a political question. Both barriers

have forced courts to apply amorphous standards in a new and complex context.

Efforts to mitigate climate change—i.e., reduce greenhouse gas (GHG) emissions—have

spawned a host of legal issues. The Supreme Court resolved a big one in 2007: the Clean Air Act

(CAA), it said, authorizes EPA to regulate GHG emissions. Most of EPA’s subsequent efforts to

carry out that authority have been sustained by the D.C. Circuit. In 2014, however, the Supreme

Court held that EPA’s regulation of GHG emissions from motor vehicles does not categorically

bring GHG emissions from power plants and factories under the permitting sections of the Act.

EPA’s alternative track for regulating GHG emissions from such “stationary sources,” standards

of performance for new and existing sources, also raises issues. Still other mitigation issues are

(1) the role of the Endangered Species Act in addressing climate change; (2) how climate change

must be considered under the National Environmental Policy Act; (3) questions raised by carbon

capture and sequestration; and (4) constitutional constraints on state actions to control GHG

emissions.

Liability for harms allegedly caused by climate change has raised another crop of legal issues.

The Supreme Court has held that the CAA bars federal judges from imposing their own limits on

GHG emissions from power plants, suggesting that common law remedies will play little role in

addressing climate change. Questions of insurance policy coverage are also likely to be litigated.

Finally, the applicability of international law principles to climate change has yet to be resolved.

Water shortages thought to be induced by climate change likely will lead to litigation over the

nature of water rights. Shortages have already prompted several lawsuits over whether cutbacks

in water delivered from federal projects effect Fifth Amendment takings or breaches of contract.

Sea level rise and extreme precipitation linked to climate change raise questions as to (1) the

effect of sea level rise on the beachfront owner’s property line; (2) whether public beach access

easements migrate with the landward movement of beaches; (3) design and operation of federal

levees; and (4) government failure to take preventive measures against climate change harms.

Other adaptation responses to climate change raising legal issues, often property-rights related,

are beach armoring (seawalls, bulkheads, etc.), beach renourishment, and “managed retreat”

measures. Retreat measures seek to move existing development away from areas likely to be

affected by floods and sea level rise, and to discourage new development there.

Natural disasters to which climate change contributes may prompt questions as to whether

response actions taken in an emergency are subject to relaxed requirements and, similarly, as to

the rebuilding of structures destroyed by such disasters just as they were before.

Finally, immigration and refugee law appear not to cover persons forced to relocate because of

climate change impacts such as drought or sea level rise.

Congressional Research Service

Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future

Contents

I. Threshold Barriers to Litigation ................................................................................................... 1

II. Mitigation—Reducing GHG Emissions...................................................................................... 4

A. Massachusetts v. EPA and GHG Rules Under the Clean Air Act So Far .............................. 4

B. Future GHG Rules Under the Clean Air Act......................................................................... 6

1. Endangerment Findings................................................................................................... 6

2. Cap-and-Trade Authority ................................................................................................ 7

3. Other Section 111 Issues ................................................................................................. 8

C. Use of the Endangered Species Act to Restrict GHG Emissions ........................................ 10

D. Consideration of Climate Change in Environmental Impact Statements ........................... 11

E. Carbon Capture and Sequestration ...................................................................................... 13

F. Constitutional Barriers to State Action ................................................................................ 13

1. Preemption .................................................................................................................... 13

2. Dormant Commerce Clause .......................................................................................... 14

G. The Public Trust Doctrine and GHG Emissions ................................................................. 16

III. Liability for Harms Caused by Climate Change ...................................................................... 17

A. Liability After American Electric Power Co., Inc. v. Connecticut ..................................... 17

B. Insurance Coverage of Injury or Liability Associated with Climate Change ..................... 18

C. U.S. Liability in International Fora Based on GHG Emissions .......................................... 20

IV. Climate Change-Induced Water Shortages............................................................................... 21

A. Water Scarcity and Water Rights ........................................................................................ 21

B. Water Diversion and Delivery Cutbacks ............................................................................. 22

V. Sea Level Rise and Extreme Precipitation ................................................................................ 23

A. Effect of Sea Level Rise on the Beachfront Owner’s Property Line .................................. 23

B. “Rolling” Beach Easements and Removal Requirements................................................... 25

C. Shifting Floodplain Designations ....................................................................................... 26

D. Issues Related to Levees and Dams .................................................................................... 27

E. Failure to Take Preventive Measures .................................................................................. 28

VI. Other Adaptation Responses to Climate Change ..................................................................... 28

A. Beach Issues ....................................................................................................................... 29

1. Armoring ....................................................................................................................... 29

2. Renourishment .............................................................................................................. 31

B. “Managed Retreat”—Moving Development Inland ..................................................... 32

VII. Responding To and Rebuilding After Natural Disasters ........................................................ 36

A. Responding ......................................................................................................................... 36

B. Rebuilding........................................................................................................................... 36

VIII. Immigration and Refugee Law ............................................................................................. 38

Contacts

Author Contact Information........................................................................................................... 39

Congressional Research Service

Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future

his report surveys existing law for legal issues that have arisen, or may arise in the future,

on account of climate change and government responses thereto. The reader interested in

proposals for new laws to deal with climate change is referred to other works.1 Of course,

while this report covers many of the major legal issues that have emerged or may do so, the

endless ramifications of climate change preclude any claim to exhaustiveness.

The report takes as its point of departure the current scientific consensus that climate change is

occurring and, to the degree it continues, will cause sea level rise and extreme weather events.2

Inclusion of some legal issues was based further on the predominant scientific view that human

activities are contributing to climate change.3

Discussion of several topics in this report may have to be substantially modified or deleted if

Congress enacts comprehensive climate change legislation, though prospects for Congress doing

so now seem small. Congressional legislation might alter or displace the role of certain existing

statutes, the Clean Air Act and the Endangered Species Act being prime candidates, for

addressing climate change, or end the already limited availability of common law claims for that

purpose.

I. Threshold Barriers to Litigation

Federal courts have evolved a variety of gatekeeper doctrines to ensure that only certain plaintiffs

and certain types of claims can invoke their jurisdiction. Two of these doctrines, standing and

political question, have posed daunting barriers for plaintiffs in climate change cases.

Standing doctrine. This principle flows from Article III of the Constitution, which limits the

jurisdiction of courts created under that article (such as federal district courts) to “cases” or

“controversies.” These words are construed to require a person who sues in an Article III court to

show (1) “injury in fact” (existing or imminent), (2) “causation” (a traceable connection between

the injury in fact and defendant’s conduct), and (3) “redressability” (plaintiff’s injury is likely to

be remedied by the relief plaintiff seeks).4 A plaintiff not satisfying any of these elements is said

to lack standing; his or her suit will be dismissed.

It should be apparent that a plaintiff complaining of injury from climate change may be thwarted

by any of the three standing requirements. For example, how does such a plaintiff show the

second element, causation? How does he show, say, that a drought that destroyed his crops was

caused by climate change—indeed, by climate change to which the defendant’s greenhouse gas

See, e.g., Michael B. Gerrard (ed.), GLOBAL CLIMATE CHANGE AND U.S. LAW (American Bar Ass’n 2007); Tom

Mounteer (ed.), CLIMATE CHANGE DESKBOOK (Envtl. Law Inst. 2009); CRS Report R40556, Market-Based Greenhouse

Gas Control: Selected Proposals in the 111th Congress, by (name redacted), (name redacted), and (name redact

ed).

National Research Council, ADVANCING THE SCIENCE OF CLIMATE CHANGE 2 (2010). See generally CRS Report

RL33849, Climate Change: Science and Policy Implications, by (name redacted).

National Research Council, supra note 2, at 2.

See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). When it is an organization that sues on behalf of

its members, rather than an individual, the standing requirements are (1) the members (or some of them) must have

standing to sue in their own right; (2) the interests the organization seeks to protect in the suit are germane to the

organization’s purpose; and (3) neither the claim asserted nor the relief requested requires the participation of

individual members in the lawsuit. Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977).

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Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future

(GHG) emissions contributed?5 To be sure, in two climate change decisions, Massachusetts v.

EPA in the Supreme Court6 and American Elec. Power Co. v. Connecticut in the Second Circuit,7

Article III standing was found—but specifically for state plaintiffs.8 Massachusetts asserted that

states are entitled to “special solicitude” when seeking to establish standing,9 and both decisions

noted the sovereign status of states as parens patriae (literally, father of the country).10 Case law

since these decisions, however, has rejected their extension to private plaintiffs, who have often

encountered difficulty establishing standing in climate change cases.11 Courts have not relaxed

the traditional standing law requirements discerned in Article III just because climate change is

involved. True, such plaintiffs may seek to avoid Article III standing issues by attempting to

establish standing in state courts. But if, as is likely, the lawsuit takes aim at GHG emissions from

out-of-state sources, the defendants are likely to remove the case to federal court under federal

question or diversity jurisdiction. Thus the question of Article III standing likely will need to be

faced.

A specialized issue is whether Indian tribes, by virtue of their inherent sovereignty, should also be

able to establish standing through parens patriae status.12 The argument for tribal parens patriae

standing was rejected by the district court in Native Village of Kivalina v. ExxonMobil Corp., a

case in which an Alaskan native village seeks damages for coastal erosion allegedly caused by

climate change to which the defendants’ GHG emissions assertedly contribute.13

See, e.g., Native Village of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 880 (N.D. Cal. 2009) (“there is no

realistic possibility of tracing any particular alleged effect of global warming to any particular emissions by any

specific person …”), affirmed on other grounds, 696 F.3d 849 (9th Cir. 2012), cert. denied, 133 S. Ct. 2390 (2013);

Washington Envtl. Council v. Bellon, 732 F.3d 1131, 1143 (9th Cir. 2013) (“Attempting to establish a causal nexus in

this case [seeking to force state agencies to limit GHG emissions from oil refineries in state] may be a particularly

challenging task.... [T]here is limited scientific capability in assessing, detecting, or measuring the relationship between

a certain GHG emission source and localized climate impacts in a given region.”).

549 U.S. 497 (2007).

582 F.3d 309 (2d Cir. 2009), reversed on other grounds, 131 S. Ct. 2527 (2011) (affirming the Second Circuit’s

finding of standing by equally divided vote).

See generally Kirsten Engle, State Standing in Climate Change Lawsuits, 26 J. Land Use & Envtl. L. 217 (2011).

549 U.S. at 520.

Massachusetts, 549 U.S. at 518-520; Connecticut v. American Elec. Power Co., 582 F.3d 309, 338-339 (2d Cir.

2009), reversed on other grounds, 131 S. Ct. 2527 (2011). That is, Article III is satisfied when a state brings suit as

parens patriae on behalf of its citizens. Massachusetts, 549 U.S. at 519-521.

Parens patriae doctrine allows a state to sue in its sovereign capacity to protect its citizenry, rather than being limited,

as Article III would normally require, to asserting traditional particularized injuries to state interests. The modern

origins of the doctrine lie in two century-old nuisance cases brought by states in federal court alleging interstate

pollution: Missouri v. Illinois, 180 U.S. 208 (1901), and Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907). In

both cases, state standing was found. The current test for parens patriae standing is found in Snapp & Son, Inc. v.

Puerto Rico, 458 U.S. 592 (1982), though there is some question whether traditional Article III standing requirements

have to be met as well by the citizens of the state asserting parens patriae standing. See generally, Sara Zdeb, From

Georgia v. Tennessee Copper to Massachusetts v. EPA; Parens Patriae Standing for State Global Warming Plaintiffs,

96 Geo. L. J. 1059 (2008).

See, e.g., Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849 (S.D. Miss. 2012) (finding of Article III standing for

state sovereign in Massachusetts v. EPA does not support standing for private plaintiffs here), affirmed on other

grounds, 718 F.3d 460 (5th Cir. 2013); Native Village of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 882

(N.D. Cal. 2009) (same), affirmed on other grounds, 696 F.3d 849 (9th Cir. 2012), cert. denied, 133 S. Ct. 2390 (2013);

Washington Envtl. Council v. Bellon, 732 F.3d 1131, 1145 (9th Cir. 2013) (same).

See generally Elizabeth Ann Kronk, Effective Access to Justice: Applying the Parens Patriae Standing Doctrine to

Climate Change-Related Claims Brought by Native Nations, 32 Pub. Land & Res. L. Rev. 1 (2011).

663 F. Supp. 2d at 882.

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Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future

Standing issues have arisen in most of the many cases challenging the adequacy of agencies’

discussion of climate change in environmental impact statements, where the partially relaxed

requirements for standing based on procedural injury apply.14

Political question doctrine. While standing asks whether there is a proper plaintiff before the

court, political question doctrine asks whether there is a justiciable claim. The doctrine seeks to

restrain courts from inappropriate interference in the business of the other branches of

government—often because resolving the issue necessarily involves policy determinations. Six

factors indicating a non-justiciable political question (any one of which may be dispositive) were

famously stated by the Supreme Court in Baker v. Carr in 1962.15 Of these, the first three have

played a role in the climate-change nuisance cases: “a textually demonstrable constitutional

commitment of the issue to a coordinate political department; or a lack of judicially discoverable

and manageable standards for resolving it; or the impossibility of deciding [the issue] without an

initial policy determination of a kind clearly for nonjudicial discretion.... ”

Baker made clear it was setting a high threshold for nonjusticiability; since it was decided a halfcentury ago, the Court has found few issues to present political questions. But the doctrine has

been ubiquitous in the nuisance-based climate change litigation with more courts rejecting such

claims on that ground than not.16

Addendum. At this point, the reader is referred to Section III.A., “A. Liability After American

Electric Power Co., Inc. v. Connecticut,” which discusses yet another litigation barrier: federal

displacement of common-law-based climate change claims by the Clean Air Act. This barrier,

announced by the Supreme Court in 2011, now makes it unnecessary for courts to reach the

standing and political question issues in the case, allowing them to avoid the abstruse questions

raised by those defenses.17

See, e.g., WildEarth Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013) (harm to group’s members from local

pollution caused by federal leasing of coal lands was sufficient injury in fact to allow challenge to all of alleged

deficiencies in environmental impact statement on proposed lease, including those related to climate change).

369 U.S. 186, 216 (1962).

Two decisions rejecting common-law claims based on climate-change harms, on political question grounds, are

Native Village of Kivalina, 63 F. Supp. 2d at 871-877, and Comer, 839 F. Supp. 2d at 862-865. Both decisions based

their rejection of the claims on the second and third Baker factors noted in the text. Declining to accept a political

question defense for such claims is American Electric Power v. Connecticut, 582 F.3d 309, 323-332 (2d Cir. 2009),

reversed on other grounds, 131 S. Ct. 2527 (2011). In contrast with these differing views in the common law realm, no

difference of judicial opinion exists when a climate change claim is based on failure to satisfy requirements in a statute,

such as the Clean Air Act. There, the claim avoids the absence of clear standards in the common law cases and

dismissal on political question grounds is deemed inappropriate. See, e.g., Massachusetts, 549 U.S. at 516 (proper

construction of a congressional statute, here the Clean Air Act, is a question “eminently suitable to resolution in a

federal court”).

This is exactly what the Ninth Circuit did in its Kivalina affirmance in 2012, supra note 11. Following the district

court’s rejection of the common-law nuisance claim on standing and political question grounds, the circuit court

rejected the claim solely on the basis of the CAA displacement argument announced by the Supreme Court since the

district court ruled.

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Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future

II. Mitigation—Reducing GHG Emissions

Proactive responses to climate change are usually grouped under one of two headings: mitigation

and adaptation. This section treats some of the legal issues raised by mitigation. Sections IV and

V compile some of the legal issues associated with adaptation.

A. Massachusetts v. EPA and GHG Rules Under the Clean Air Act

So Far

In 2007, the Supreme Court answered a key Clean Air Act (CAA) question. The act, it found in

Massachusetts v. EPA,18 gives EPA authority to regulate GHG emissions. Such authority is

granted, said the Court, because the CAA term “air pollutant” is defined sufficiently broadly in

the act to include GHGs. Moreover, the Court added, the CAA forecloses an EPA decision not to

regulate GHGs or any other air pollutant simply because the administration in power may have

policy qualms—for example, due to a preference for non-regulatory approaches. In light of these

determinations, the Court instructed EPA to reconsider its 2003 denial of a petition asking it to

regulate GHG emissions from new motor vehicles, a denial EPA had based on the Court-rejected

reasons.19

Following the Massachusetts decision, EPA set about the task of adapting the CAA to address

climate change. In doing so, the agency confronted a statute more comfortably suited to regional

air pollution problems, the opposite of climate change with its global nature. Four early EPA

actions in that effort are:

•

The “timing rule.” 75 Federal Register 17004 (2010). This “rule,” actually an

EPA memorandum, concluded that PSD requirements for stationary sources of

GHGs would take effect on January 2, 2011, when the “tailpipe rule” (below)

took effect.

•

The “endangerment finding.” 74 Federal Register 66496 (2009). In this rule,

EPA determined that GHG emissions from new motor vehicles “cause, or

contribute to, air pollution which may reasonably be anticipated to endanger

public health or welfare,” per CAA section 202(a)(1). The finding has no effect in

itself; its importance is that it triggers a duty under CAA section 202(a) for EPA

to promulgate emission standards for new motor vehicles—see immediately

below.

•

The “tailpipe rule.” 75 Federal Register 25323 (2010). In this rule, EPA and the

National Highway Traffic Safety Administration set, respectively, GHG emission

standards and fuel economy standards for 2012-2016 model year light-duty

vehicles.

•

The “tailoring rule.” 75 Federal Register 31514 (2010). This rule aimed to

relieve the overwhelming permitting burdens that EPA asserted would, in the

absence of the rule, fall on “prevention of significant deterioration” (PSD) and

549 U.S. 497 (2007).

68 Fed. Reg. 52,922 (2003).

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Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future

Title V permitting authorities beginning January 2, 2011, when EPA’s tailpipe

rule took effect. When that happened, the PSD part of the CAA requires that PSD

permits be issued, and “best available control technology” (BACT) applied, for

every new major emitting facility (and major modification) in the PSD area that

emits more than either 100 or 250 tons of pollutant annually, depending on the

source. This is a huge number of sources, so the tailoring rule set much higher

tonnage thresholds, gradually diminishing, EPA hoped, in following years.

In 2012, the D.C. Circuit upheld all these EPA actions.20 The Supreme Court granted certiorari,

but limited to one narrow question: “[w]hether EPA permissibly determined that its regulation of

greenhouse gas emissions from new motor vehicles triggered permitting requirements under the

[CAA] for stationary sources that emit greenhouse gases.” The “permitting requirements ... for

stationary sources” to which the Court referred are those under the PSD new source review and

Title V operating permit portions of the CAA.

In 2014, the Supreme Court handed down Utility Air Regulatory Group v. EPA (UARG),21

answering no to the above question—that is, EPA’s regulation of vehicle GHG emissions does not

give EPA unqualified authority to apply PSD new source permitting and Title V operating permits

to stationary source GHG emissions. As the Court explained, just because the CAA phrase “air

pollutant” generally extends to GHGs, as it held in Massachusetts, does not mean the phrase

includes GHGs every place in the Act it is used, such as in the PSD and Title V sections.22 In

these permit programs, extending “air pollutant” to GHG emissions creates a staggering

administrative workload owing to the low emission thresholds that trigger those programs and the

huge number of sources that satisfy those thresholds for CO2, the primary GHG. This unwieldy

result argued strongly, in the Court’s view, against a GHG-inclusive reading of the two permit

programs.23 Nor did the Court allow EPA, through its “Tailoring Rule” (above), to phase in the

low statutory emission thresholds in an effort to ease the daunting permit-issuing workload, since

the CAA states the thresholds in absolute numerical terms.24

On the other hand, the Court allowed that when PSD new source permitting is required because a

new (or modified) source emits a “conventional” pollutant in threshold quantities, then EPA also

may impose PSD new-source permitting on GHG emissions from that source.25 According to the

United States, such “anyway” sources, so called because they are covered independently of their

CO2 emissions, account for roughly 83% of American stationary source GHG emissions. For this

reason, the Court’s decision may be regarded as a qualified win for EPA, even though its

Tailoring Rule was invalidated.

The narrowness of the question that the Court answered in UARG is significant, since it leaves

intact the D.C. Circuit’s approval of EPA’s endangerment finding for GHG emissions from new

motor vehicles, not to mention the Massachusetts v. EPA holding. Nor did UARG directly touch

Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012).

134 S. Ct. 2427 (2014).

Id. at 2439-2432.

Id. at 2442-2444.

Id. at 2444-2446.

Id. at 2444-2449.

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on the validity of EPA’s current use of CAA section 111 in its effort to control GHG emissions

from new and existing fossil-fuel-fired power plants.26

B. Future GHG Rules Under the Clean Air Act

Mentions of climate change in President Obama’s second inaugural address and his 2013 and

2014 State of the Union speeches sought to reactivate the climate change debate on Capitol Hill.

Particularly relevant to this section of the report is the President’s 2013 State of the Union

statement that if Congress does not act on climate change “soon,” he will “direct [his] cabinet to

come up with executive actions we can take.... ” The President’s Climate Action Plan,

accompanied by a directive to EPA,27 underscored in June, 2013 what was already clear from his

State of the Union remark: that many of these “executive actions” will be under the CAA. This

raises among other issues the following.

1. Endangerment Findings

With EPA’s endangerment finding for new motor vehicle GHG emissions having survived judicial

challenge, a question arises: Does that finding, made under CAA section 202, legally compel the

agency to make endangerment findings for GHG emissions under other sections of the act that

use similar endangerment language for other types of emission sources? Such subsequent

endangerment findings would require, or at least authorize, EPA to regulate GHG emissions under

those sections.

The CAA section most likely to require EPA regulatory action after the section 202 endangerment

finding is section 111. Section 111 requires EPA to set performance standards for those categories

of new stationary sources of emissions that “cause, or contribute significantly to, air pollution

which may reasonably be anticipated to endanger public health or welfare.”28 As Section II.B.3

below notes, this issue is now moot: in January 2014, EPA made an endangerment finding and

proposed new source performance standards for GHG emissions from fossil fuel-fired power

plants, pursuant to litigation settlements and the President’s 2013 directive.29

CAA section 111(b) authorizes EPA to set “new source performance standards,” emission standards for new

stationary sources. CAA section 111(d) authorizes the agency to set emission standards for existing stationary sources

that would be covered had they been new, among other preconditions.

Presidential Memorandum: Power Sector Carbon Pollution Standards, 78 Fed. Reg. 39,535 (July 1, 2013)

(announced June 25, 2013). See generally CRS Report R43127, EPA Standards for Greenhouse Gas Emissions from

Power Plants: Many Questions, Some Answers, by (name redacted).

42 U.S.C. § 7411(b)(1)(A).

EPA’s position is more nuanced than the text suggests. As with its endangerment finding for motor vehicles in 2009,

the agency argues that a section 111 endangerment finding has two independent components: a determination that a

pollutant or set of pollutants “may reasonably be anticipated to endanger public health or welfare” and a determination

that the source category proposed to be regulated “cause[s] or contribute[s] significantly” to that pollution. EPA

contends that it needs only a rational basis for these two determinations, and that such a rational basis exists for

regulating GHG emissions from new fossil fuel-fired power plant regulation under section111. The first

determination—that six “well-mixed” pollutants collectively, by causing climate change, endanger public health or

welfare— has already been made, as part of the 2009 endangerment finding. The second determination—that fossil

fuel-fired power plants contribute significantly to that air pollution— is evident, EPA asserts, from the fact that

“electricity generating plants, as an industry, constitute, by a significant margin, the largest emitters [of GHGs] in the

inventory.” Importantly, the agency reads section 111(b)(1)(A) to not require separate determinations for each pollutant

emitted by a source category, such as CO2. In the event, the courts reject this reading, however, EPA proposes a

(continued...)

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Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future

Second, two other CAA provisions that might be triggered by the section 202 endangerment

finding are section 108,30 requiring national ambient air quality standards, and section 115,31

which requires states to revise their implementation plans to prevent or eliminate the

endangerment of public health or welfare in a foreign country. As to these sections, however, the

arguable infeasibility of achieving the regulatory goals—even if GHG emissions in the United

States are significantly reduced, atmospheric concentrations would decline little—may give EPA

room to argue that regulatory action is not mandatory. Other endangerment-triggered sections of

the CAA can be distinguished from section 202(a) by their explicit terms, and so likely would not

be triggered by the 202(a) endangerment finding, or at least do not impose on EPA a mandatory

duty to promulgate GHG emission limits even once an endangerment finding is made.

Since the 2007 decision in Massachusetts v. EPA, EPA has been petitioned to make endangerment

findings under almost all the CAA sections just mentioned, but has finally ruled on none. This

inaction raises the question of whether the agency can be compelled to act on these petitions after

a sufficient number of years. The CAA allows citizen suits against EPA to compel agency action

when such action is “unreasonably delayed,” but only for agency actions that are “not

discretionary.” Thus courts will have to determine, as an initial matter, which of the

endangerment-finding provisions in the CAA impose nondiscretionary duties on the agency.32

2. Cap-and-Trade Authority

Should EPA, per the previous section, make endangerment findings under CAA sections other

than 202, the question has arisen whether those sections allow cap-and-trade or other flexible

approaches to GHG emissions control.33 Under cap and trade, emission allowances would be

traded among sources, allowing the market to allocate the available total (“cap”) of emissions.

The CAA sections often implicated in this debate are sections 111(d)34 (existing stationary

sources in categories for which a standard of performance has been promulgated for new

sources), 11535 (international air pollution), 21136 (fuels), 21337 (nonroad engines and vehicles),

(...continued)

separate “cause or contribute significantly” determination for CO2 emitted by the fossil fuel-fired power plant category.

79 Fed. Reg. 1430, 1453 (2014).

EPA points out that in contrast with the absence in section 111 of any prerequisite that for EPA to issue a standard of

performance, it must first determine that the particular pollutant causes or contributes significantly to air pollution that

endangers public health or welfare, other CAA sections do require EPA to make both determinations for a particular

pollutant to regulate under those sections. Id.

42 U.S.C. § 7408.

42 U.S.C. § 7415.

For contrary decisions as to the endangerment finding provision in CAA section 231, which governs aircraft

emissions, compare Friends of the Earth v. EPA, 2013 Westlaw 1226822 (D.D.C. March 27, 2013) (EPA duty to rule

on endangerment under section 231 is discretionary, so no citizen suit lies) with Center for Biological Diversity v. EPA,

794 F. Supp. 2d 151 (D.D.C. 2011) (said duty is nondiscretionary, so citizen suit lies if there is unreasonable delay).

See, e.g., Nathan Richardson, Playing Without Aces: Offsets and the Limits of Flexibility Under Clean Air Act

Climate Policy, 42 Envtl. L. 735 (2012).

42 U.S.C. § 7411(d).

42 U.S.C. § 7415.

42 U.S.C. § 7545.

42 U.S.C. § 7547.

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and 23138 (aircraft). None of these CAA sections, however, say anything explicit about cap and

trade, either to authorize it or prohibit it. On the no-authority side, each section, to varying

degrees, makes cap and trade an awkward fit.39 Further, the CAA expressly authorizes cap and

trade in two places: subtitle IV40 addressing acid deposition and section 110(a)(2)(A)41 setting out

elements of state implementation plans for achieving national ambient air quality standards.

These explicit mentions of cap and trade give rise to the negative implication that where Congress

has not clearly indicated authority for cap and trade, such authority is not granted. Still, the

question of CAA authority for GHG cap-and-trade programs must be deemed an open one.

The cap-and-trade issue is likely to receive its first litigation test when EPA finalizes its proposed

rule for GHG emissions from existing fossil fuel-fired power plants,42 expected in June, 2015.

EPA has maintained consistently that CAA section 111(d), the authority for the proposed rule, is

broad enough to allow compliance through cap and trade.43

3. Other Section 111 Issues

Proposed EPA regulations limiting GHG emissions from fossil-fuel power plants have cast an

intense spotlight on ambiguities in two subsections of CAA section 111. The first-proposed

regulations, published January 2014,44 cover new plants and are governed by subsection (b); the

second-proposed regulations, published June 2014, deal with existing plants and are governed by

subsection (d).45 It is a near certainty that the issues noted below, plus the cap-and-trade issue

already mentioned, will be litigated once final rules under 111(b) and 111(d) are issued.

Both 111(b) and 111(d) call for “standards of performance,” applicable to new and existing

stationary sources, respectively. Section 111(a), in turn, defines “standard of performance” as an

emission standard that “reflects the degree of emission reduction achievable through ... the best

system of emission reduction which (taking into account ... cost ...) the [EPA] Administrator

determines has been adequately demonstrated.”46 Each of the four italicized phrases raises issues.

As regards the proposed section 111(b) rule for new power plants, most attention targets the

phrase “adequately demonstrated.” The reason is plain: the proposed rule cannot be satisfied, by

the agency’s admission, without partial reliance on carbon capture and sequestration (CCS), a

technology whose viability in connection with power generation is vigorously debated. So is CCS

“adequately demonstrated” for power plants? Case law on the meaning of “adequately

demonstrated” is ample, holding that the phrase does not necessarily imply that any existing

42 U.S.C. § 7571.

EPA has adopted a NOx averaging, trading, and banking program for heavy-duty vehicles under CAA section 202.

40 C.F.R. § 86.1817-05.

42 U.S.C. § 7651 et seq.

42 U.S.C. § 7410(a)(2)(A).

Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 79 Fed.

Reg. 34830 (2014).

See, e.g., id. at 34927 and 40 C.F.R. § 60.21(f). Several commentators also conclude that section 111(d) embraces

cap and trade. See, e.g., Gregory Wannier at al. (Resources for the Future), Prevailing Academic View on Compliance

Flexibility Under Sec. 111 of the Clean Air Act, Discussion Paper 11-29 (2011).

79 Fed. Reg. 1430 (January 8, 2014).

See note 42 supra.

42 U.S.C. § 7411(a)(1).

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source of the type proposed for a new source performance standard is able to meet the standard.47

Rather, section 111 “looks toward what may fairly be projected for the regulated future, rather

than the state of the art at present.... ”48 Such prognostication, however, may not be based on

“mere speculation or conjecture ... ,” though EPA may extrapolate from a technology’s

performance in other industries.49

The admitted reliance of EPA’s proposed rule on CCS may also create an issue as to whether the

proposed rule can be reconciled with the section 111(b)(5) ban on EPA’s requiring any particular

system of emission reduction to comply with a NSPS.50

Section 111(d) raises its own set of legal issues. That subsection mandates that states develop

standards of performance for existing sources for which a NSPS has been established—but only

for pollutants meeting certain conditions. One of these conditions raises a critical threshold issue

for the proposed rule, asking whether EPA may regulate CO2 emissions from existing power

plants at all. The issue arises from the fact that in the 1990 amendments to the CAA, inconsistent

House and Senate amendments to section 111(d) were passed, and not reconciled in conference.

Under the House amendment, section 111(d) standards of performance are not authorized for air

pollutants “emitted from a source category ... regulated under section 112,” which covers

hazardous air pollutants. Because fossil-fuel-fired power plants are a source category regulated

under section 112, this argument concludes that section 111(d) does not allow EPA to restrict

GHG emissions from existing such plants. The Senate amendment, by contrast, places off limits

only air pollutants regulated under section 112. CO2 is not an air pollutant regulated under section

112, so the Senate amendment is not an obstacle to the proposed 111(d) rule. In the upcoming

litigation, EPA likely will argue that Congress could not have intended such a major carve-out

from section 111(d)’s coverage without being more explicit, and that in light of the ambiguity

created by the inconsistent amendments, the court should defer to EPA’s effort to reconcile them.

Another section 111(d) issue turns on the degree of flexibility it allows. In EPA’s view, “[s]ection

111(d) provides greater flexibility to EPA and states to design a program in consultation with [a]

diverse range of stakeholders.”51 But does this flexibility extend beyond the traditional approach

of imposing emission limits on individual power plants to embrace so-called “beyond the

fenceline” approaches? The question of whether a cap-and-trade approach is authorized was

noted earlier, but EPA’s recently proposed section 111(d) rule goes much further. It bases its

determination of the “best system of emission reduction” (see definition of “standard of

performance” above) for each state on varying combinations of four “building blocks”—that is,

four ways of reducing CO2 emissions from existing power plants. Three of these four building

buildings may be described as “beyond the fenceline”—building block two (substituting natural

gas-fired generation for coal-fired generation); building block three (substituting low- or zerocarbon generation, such as nuclear power), and building block four (improvements in demandside energy efficiency). Will the fact that CO2 emissions differ from the pollutants that have been

regulated in the past under section 111(d) dispose the court to allow EPA enough leeway for such

approaches?

See, e.g., Portland Cement Ass’n v. Ruckelshaus, 486 F.3d 375, 391 (D.C. Cir. 1973).

Id.

Lignite Energy Council v. EPA, 198 F.3d 930, 934 (D.C. Cir. 1999).

42 U.S.C. § 7411(b)(5).

Powerpoint presentation of Mr. Kevin Culligan, EPA Office of Air and Radiation, presented January 30, 2014 at

seminar on GHG regulations for the power sector.

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Finally, if a state fails to submit a “satisfactory” plan under section 111(d), EPA has authority to

promulgate, and if necessary enforce, a plan (or portion of a plan) for the state.52 Does that

authority go so far as to allow EPA regulation of activities covered by building blocks three and

four—activities that go beyond anything EPA is authorized to regulate elsewhere in the CAA, and

that trench on the jurisdiction of other federal and state agencies?

C. Use of the Endangered Species Act to Restrict GHG Emissions53

Some cast the Endangered Species Act (ESA) as a tool aggressive environmental groups may use

to thwart projects that produce GHGs. Under this view, plaintiffs would claim that a project’s

GHG emissions, by contributing to climate change that brings about adverse habitat change, are

causing a “take” of protected species in violation of the ESA.54 For example, a suit could claim

that any project that contributes to warmer seas harms, hence “takes,” certain listed coral species.

However, no case law can be found on this legal argument, either accepting or rejecting it.

Instead of alleging takes of species, lawsuits connecting the ESA to climate change typically are

based on how an agency considered climate change when making other determinations: listing a

species;55 designating critical habitat;56 or issuing a Biological Opinion.57 The ESA requires that

the Fish & Wildlife Service (FWS) consider the effects on habitat, at least in part, for all of those

determinations.58 Accordingly, climate change evaluations long have been part of ESA decisionmaking, but only to the extent that the climate’s effects on habitat are linked to a species.

Case law does not show that the ESA is used as an enforcement tool to make climate change

arguments. In the handful of cases where ESA challenges were directed at federal projects related

to power plants, only one involved climate change allegations, Palm Beach County

Environmental Coalition v. Florida, and it was not clear whether those claims were premised on

the ESA or on another legal basis.59

CAA § 111(d)(2); 42 U.S.C. § 7411(d)(2).

This section of the report was written by (name redacted), Legislative Attorney, CRS American Law Division.

Habitat change can constitute a “take” of listed species as follows. Under the ESA, “take” is defined as “to harass,

harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C.

§ 1532(19). “Harm” in this definition has been defined by the Fish & Wildlife Service to include “significant habitat

modification or degradation where it actually kills or injures wildlife.” 50 C.F.R. § 17.3.

See, e.g., Greater Yellowstone Coalition, Inc. v. Servheen, 665 F.3d 1015 (9th Cir. 2011); In re Polar Bear

Endangered Species Act Listing, 794 F. Supp. 2d 65 (D.D.C. 2011); Center for Biological Diversity v. Lubchenco,

758 F. Supp. 2d 945 (N.D. Cal. 2010).

See, e.g., Conservancy of Southwest Florida v. U.S. Fish and Wildlife Service, 2011 Westlaw 1326805 (M.D. Fla.

April 6, 2011); Alliance for Wild Rockies v. Lyder, 728 F. Supp. 2d 1126 (D. Mont. 2010).

See, e.g., Center for Biological Diversity v. Salazar, 804 F. Supp. 2d 987 (D. Ariz. 2011); South Yuba River Citizens

League v. National Marine Fisheries Service, 723 F. Supp. 2d 1247 (E.D. Cal. 2010); and Pacific Coast Fed’n of

Fishermen’s Ass’ns v. Gutierrez, 606 F. Supp. 2d 1122 (E.D. Cal. 2008).

See ESA § 4(a)(1)(A), 16 U.S.C. § 1533(a)(1)(A) (when making determination on whether to list a species, relevant

wildlife agency must consider “the present or threatened destruction, modification, or curtailment of its habitat or

range”); ESA § 4(b)(2), 16 U.S.C. § 1533(b)(2) (requiring relevant wildlife agency to designate critical habitat); and

ESA § 7(a)(2), 16 U.S.C. § 1536(a)(2) (requiring all agencies to consult with relevant wildlife agency to determine

whether their actions would “result in the destruction or adverse modification of habitat of such species which is

determined ... to be critical”).

Palm Beach County Environmental Coalition v. Florida, 651 F. Supp. 2d 1328 (S.D. Fla. 2009). Plaintiffs also had

alleged violations of the Clean Air Act, National Environmental Policy Act, and the Clean Water Act.

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Despite the apparent lack of litigation premised on climate change taking species, some

regulatory changes were made to limit lawsuits based on that cause of action. In 2008, FWS

changed the regulations that dictated how a service considered impacts of federal projects on

listed species.60 Those regulations were effective only from January 15, 2008, to May 5, 2008,

after Congress acted to halt them in P.L. 111-8.61 During that period of regulatory change,

definitions related to the effects of an agency action were modified to “reinforce the Services’

current view that there is no requirement to consult on [greenhouse gas] emissions’ contribution

to global warming and its associated impacts on listed species.”62 Despite the revocation of those

changes, it does not appear that the scope of effects has expanded, likely due to the fact that the

regulations already limited review to those effects with a reasonable certainty to occur.63

Another regulatory change of the same time period is still in place. It restricts lawsuits claiming

incidental takes of polar bears to instances where the agency action occurs in the state of Alaska.64

D. Consideration of Climate Change in

Environmental Impact Statements

It is no longer in doubt that the National Environmental Policy Act (NEPA)65 requires a federal

agency to consider climate change impacts in environmental impact statements (EISs).66 The

obligation extends to both climate change impacts the agency’s proposed project may contribute

to, and those affecting the proposed project. The very first appearance of climate change in a

reported court decision was in a NEPA case,67 and the numerous NEPA/climate-change decisions

since have never doubted that where sufficiently serious and causally connected to the project,

climate change impacts should be discussed.68 Draft guidance from the Council on Environmental

Quality (CEQ)69 and a recent CEQ letter70 also make the point.

73 Fed. Reg. 76,272 (December 16, 2008) (effective January 15, 2009).

74 Fed. Reg. 20,421 (May 8, 2009) (“With this final rule, the Department of the Interior and the Department of

Commerce amend regulations governing interagency cooperation under [the ESA]. In accordance with the statutory

authority set forth in the 2009 Omnibus Appropriations Act (P.L. 111-8), this rule implements the regulations that were

in effect immediately before the effective date of the regulation issued on December 16, 2008”).

73 Fed. Reg. at 47872.

50 C.F.R. § 402.02.

50 C.F.R. § 17.40(q)(4). The polar bear was listed under the act primarily due to shrinking habitat caused by

changing climate. 73 Fed. Reg. 28,212 (2008). The polar bear regulation prevents a lawsuit claiming that a power plant

in any state other than Alaska harmed the polar bear by indirectly causing its ice floe habitat to diminish. The law that

authorized revocation of the regulations discussed above, P.L. 111-8, also authorized revocation of the polar bear rule,

but the Secretary of the Interior and the Secretary of Commerce did not act on that authority to revoke the rule.

42 U.S.C. §§ 4321-4370f.

See NEPA § 102(2)(C); 42 U.S.C. § 4332(2)(C).

City of Los Angeles v. National Highway Traffic Safety Admin., 912 F.2d 478 (D.C. Cir. 1990).

See, e.g., Center for Biological Diversity v. National Highway Traffic Safety Admin., 508 F.3d 508, 550 (9th Cir.

2007) (“The impact of greenhouse gas emissions is precisely the kind of cumulative impacts analysis that NEPA

requires agencies to conduct.”). There is now some support for use of the government’s social cost of carbon protocol

as part of an environmental impact statement’s analysis of the climate-change-related costs of a proposed action. High

Country Conservation Advocates v.U.S. Forest Service, 2014 WL 2922751 (D. Colo. June 27, 2014) (citing February,

2010 Technical Support Document of the Interagency Working Group on the Social Cost of Carbon).

CEQ, Memorandum for Heads of Federal Departments and Agencies, Draft NEPA Guidance on Consideration of the

Effects of Climate Change and Greenhouse Gas Emissions (February 18, 2010). As to a proposed project’s possible

contribution to climate change, the guidance states that “where a proposed Federal action that is analyzed in an

(continued...)

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Still, clear thresholds triggering EIS inclusion have yet to emerge from the court decisions. CEQ

suggests in its draft guidance that when federal activity is subject to GHG emissions accounting

requirements, such as CAA reporting requirements that apply to stationary sources that directly

emit 25,000 metric tons or more of CO2-equivalent GHG on an annual basis,71 the agency should

include this information in the NEPA documentation for consideration by decision makers and the

public. CEQ expressly disclaims, however, that it intends 25,000 metric tons per year as the

emission level that constitutes a “major federal action significantly affecting the quality of the

human environment,”72 NEPA’s trigger for requiring an agency to prepare an EIS. Further

ambiguity as to the threshold for including climate change effects in EISs stems from CEQ’s

requirement that EISs include “indirect effects” of the proposed federal action, not only direct

ones, while defining indirect effects only loosely.73

Reportedly, “while most federal agencies now address climate change to some extent in the

[EISs] they prepare, the specific impacts considered and the methodology used in these analyses

vary widely.”74 This lack of uniformity has created pressure on CEQ to finalize its draft guidance,

now over four years old, on consideration of climate change in NEPA environmental reviews.

In addition to the federal NEPA, many states have NEPA-like statutes for evaluating proposals of

state agencies. The legal issues raised by climate change under these “little NEPAs” are beyond

the scope of this report. An example is the former split in the lower California courts on whether

projected future conditions—as in a climate-changed world—rather than current conditions can

be used as the baseline for evaluating the environmental impacts of proposed state projects. The

California Supreme Court recently held that an environmental impact report under the state’s

NEPA counterpart may omit the project’s impacts on existing conditions and substitute a future

baseline, if doing so is properly justified.75

(...continued)

[environmental assessment] or EIS would be anticipated to emit GHGs to the atmosphere in quantities that the agency

finds may be meaningful, it is appropriate for the agency to quantify and disclose its estimate of the expected annual

direct and indirect GHG emissions in the environmental documentation for the proposed action.” Id. at 2. As to a

proposed project’s potential for being affected by future climate change, the guidance is equally unequivocal: “CEQ

proposes that agencies should determine which climate change impacts warrant consideration in their [environmental

assessments] and EISs because of their impact on the analysis of the environmental effects of a proposed agency

action.” Id. at 6.

Letter from Michael Boots, Acting Chair, CEQ, to International Center for Technology Assessment et al., dated Aug.

7, 2014, responding to a petition for rulemaking and issuance of guidance to require inclusion of climate change

analyses in NEPA documents. In denying the petition, the letter gives as one reason for CEQ not revising its existing

NEPA regulations that “they already encompass consideration of climate effects ....” Id. at 2.

40 C.F.R. § 98.2.

NEPA § 102(2)(C); 42 U.S.C. § 4332(2)(C).

40 C.F.R. § 1500.8(b). See, e.g., Mid States Coalition for Progress v. Surface Transp. Bd., 345 F.3d 520 (8th Cir.

2003) (noting that EISs must include indirect effects of proposed federal actions, court holds that EIS on proposed rail

line making it cheaper for coal to reach power plants must discuss effects of increased coal consumption).

Jean Chemnick, White House still hashing out how agencies should address climate in NEPA process, Energy &

Env’t News, March 15, 2013.

Neighbors for Smart Rail v. Exposition Metro Line Construction Auth., 2013 Westlaw 3970107 (Cal. August 5,

2013).

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E. Carbon Capture and Sequestration76

While most proposals to mitigate climate change have focused on limiting GHG emissions at the

smokestack or tailpipe, an option that has been discussed in recent years is carbon capture and

sequestration (CCS). CCS is a process whereby CO2 emissions would be “captured” at their

source and then stored or “sequestered,” rather than being released into the atmosphere.

Frequently, this storage/sequestration would take place underground.

Large-scale CCS technology is still in the early stages of development. Therefore, there are a

number of operational questions to be answered before we can fully understand all the legal

issues that may arise. However, because the development of CCS technology could well depend

in part upon the resolution of some of these legal issues, it is important to understand them as the

CCS debate continues. Among the emerging legal issues associated with CCS technology are (1)

who owns and controls the underground pore space where the CO2 would be “sequestered” under

many of the CCS facility concepts proposed, in particular is pore space part of the surface estate

or mineral rights under traditional property law principles; (2) which federal and state agencies

would permit and regulate CO2 pipelines transporting the gas from the point of generation to the

sequestration site under the existing framework for pipeline regulation; and (3) concerns over

liability exposure that may hinder development of CCS technology.77

F. Constitutional Barriers to State Action

Two federal constitutional constraints on state action, preemption and the dormant commerce

clause, have played a role in blocking state efforts to restrict GHG emissions.78

1. Preemption

At least two federal statutes have been invoked to argue for federal preemption of state laws

affecting GHG emissions: the CAA and the Energy Policy and Conservation Act (EPCA). The

CAA, while not generally preempting state regulation of stationary source emissions, does

preempt state standards “relating to” the control of emissions from new motor vehicles.79 An

exception is that EPA may waive CAA preemption for vehicle emission standards in California,

should that state so request,80 whereupon states with standards identical to California’s also

participate in the waiver.81 EPCA, for its part, is not directly concerned with emissions. Rather, it

authorizes federal promulgation of corporate average fuel economy standards (“CAFE

standards”),82 then dictates that when a CAFE standard is in effect, a state may not regulate in a

This section of the report was written by (name redacted), Legislative Attorney, CRS American Law Division.

For a detailed discussion of these issues, see CRS Report RL34307, Legal Issues Associated with the Development of

Carbon Dioxide Sequestration Technology, by (name redacted) and (name redacted).See also David E. Adelman and Ian

J. Duncan, The Limits of Liability in Promoting Safe Geologic Sequestration of CO2, 43 Envtl. L. Rptr. 10646 (2013);

Will Reisinger et al., Reconciling King Coal and Climate Change: A Regulatory Framework for Carbon Capture, 11

Vt. J. Envtl. L. 1, 13-25 (2009).

State constitutional constraints are not covered in this report.

CAA § 209(a); 42 U.S.C. § 7543(a).

CAA § 209(b); 42 U.S.C. § 7543(b).

CAA § 177; 42 U.S.C. § 7507.

49 U.S.C. § 32902(a).

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manner “related to” such fuel economy standards.83 No California waiver or other waiver is

authorized.

An obvious ambiguity exists as to when a state action is “relating to” or “related to” the relevant

federal action, and thus preempted. For example, one case dealt with city regulations reducing the

rates at which taxicab owners could lease vehicles to drivers if the vehicle did not have a hybrid

engine. The court found it “likely” (the standard for obtaining a preliminary injunction) that the

regulations effectively required cab owners to buy only hybrid vehicles, so that the regulations

were “relating to” the control of emissions under the CAA and “related to” CAFE standards under

EPCA. So finding, the court held that plaintiffs had shown a likelihood of success in showing

preemption and granted a preliminary injunction.84

It is also unclear at what point a state’s actions restricting GHG emissions are preempted as

interfering with national foreign policy, given the long history of U.S. involvement in

international negotiations over GHG emissions.85 The issue has been raised in litigation.86

Finally, states participating in the Regional Greenhouse Gas Initiative (RGGI) have committed to

finding a solution to GHG emissions from the generation of electricity imported into those states.

Because the Federal Power Act creates exclusive federal control over interstate wholesale power

rates,87 the issue has been raised whether state regulation of imported electricity is consistent with

federal authority. The answer must await the details of any RGGI proposal, but state regulation

that does not affect interstate wholesale power rates would seem likely to survive Federal Power

Act preemption challenge.88 Close questions might arise, however, if a RGGI initiative by

imposing additional costs on out-of-state power generation indirectly increased interstate

wholesale rates.

2. Dormant Commerce Clause

The dormant commerce clause (DCC), a judicially created corollary of the Constitution’s

Commerce Clause,89 seeks to ensure that state laws do not impermissibly thwart interstate

commerce. First, the DCC imposes a difficult-to-meet, strict scrutiny test on any state law that on

its face, or in practical effect, discriminates against commerce based on its out-of-state origin.

Second, it applies a considerably more lenient balancing test when a state law, though not

discriminating against interstate commerce, nonetheless imposes an “undue burden” on such

commerce. And third, the DCC is construed to contain a categorical ban on state laws that

49 U.S.C. § 32919.

Metropolitan Taxicab Bd. of Trade v. City of New York, 633 F. Supp. 2d 83 (S.D.N.Y.), affirmed as to EPCA, 615

F.3d 152 (2d Cir. 2010), cert. denied, 131 S. Ct. 1569 (2011).

As the Supreme Court noted in Massachusetts v. EPA, 549 U.S. 497, 519 (2007): “Massachusetts … cannot negotiate

[a GHG] emissions treaty with China or India ….” The leading decision on foreign policy preemption is American

Insurance Ass’n v. Garamendi, 539 U.S. 396 (2003).

See, e.g., Green Mountain Chrysler Plymouth Dodge v. Crombie, 508 F. Supp. 2d 295 (D. Vt. 2007) (no foreign

policy preemption found of Vermont’s GHG emission standards for new automobiles).

16 U.S.C. § 824(b). See Nantahala Power & Light Co. v. Thornburg, 476 U.S. 953, 966 (1986).

See Shelley Welton, Michael Gerrard, and Jason Munster, Regulating Electricity Imports into RGGI: Toward a

Legal, Workable Solution (Columbia Law School Center for Climate Change Law August 2013).

U.S. Const. art. I, § 8, cl. 3.

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regulate extraterritorially.90 DCC issues have been raised in a variety of climate-change-related

contexts.

In Rocky Mountain Farmers Union v. Corey, the Ninth Circuit overturned a district court decision

holding that California’s Low Carbon Fuel Standard transgressed the DCC.91 The district court

had focused on the Standard’s limit on a fuel’s “carbon intensity”—that is, the CO2 emissions

generated by the fuel’s entire life cycle, including its production and transportation. This focus

put fuels produced out-of-state at a disadvantage to fuels produced in-state. The Ninth Circuit,

however, ruled 2-1 that no DCC violation existed. It held that treatment of a fuel based on its

carbon intensity was not a facial discrimination based on the fuel’s out-of-state origin. Nor did the

Circuit agree with the district court’s holding that the lifecycle standard regulated

extraterritorially.

The opposite result, sustaining a DCC challenge, was reached by a federal district court in

Minnesota. 92 This case involves a Minnesota statute under which persons in that state may not

import from outside the state power from any large power plant that would increase CO2

emissions from the generation of electricity because imported without an offset. The DCC

argument of the plaintiffs was that all three DCC tests were violated: the statute discriminates

against out-of-state interests, imposes undue burdens on interstate commerce, and violates the

DCC’s bar on extraterritorial regulation by regulating CO2 emissions from the out-of-state

production of electricity consumed in Minnesota.93 Finding the statute to be per se invalid

because it regulates extraterritorially, the court declined to reach the plaintiff’s first two

arguments.

Climate-change-related DCC issues also arise under California’s cap-and-trade system—in

particular, its requirement that importers of electricity account for their emissions. Should the

northeastern states in RGGI adopt electricity import restrictions (see preceding section), the same

constitutional issue would arise.94 Yet another target of challenges might be SB 1368, a 2006

California law that set an “emission performance standard” for all long-term power contracts and

baseload generation. The standard was set at 1,100 pounds of CO2 per megawatt-hour. Since most

Healy v. Beer Institute, Inc., 491 U.S. 324 (1989). Under the clause, a state may not “directly control[] commerce

occurring wholly outside the boundaries of a State.” Id. at 336. There seems to be some indeterminacy, however, in the

reach of this extraterritoriality doctrine—that is, whether it means anything more than that a state may not formally

assert its authority outside its borders. See, e.g., Freedom Holdings, Inc. v. Cuomo, 624 F.3d 38, 67 (2d Cir. 2010)

(“[m]ere ‘upstream pricing impact’ is not a violation of the dormant Commerce Clause, even if the impact is felt out-ofstate where the stream originates”).

730 F.3d 1070 (9th Cir. 2013), cert. denied, 134 S. Ct. 2875 (2014).

North Dakota v. Heydinger, 2014 WL 1612331 (D. Minn. April 18, 2014).

For discussion of this Minnesota case and the California case in the preceding paragraph, see Alexandra B. Klass and

Elizabeth Henley, Energy Policy, Extraterritoriality, and the Dormant Commerce Clause, SSRN Legal Studies

Research Paper Series, Research Paper No. 14-01 (2014).

See Regulating Electricity Imports, supra note 83. The authors address one of the primary mechanisms being

considered by the RGGI states for regulating imports: “an obligation on ‘load-serving entities’ ...—those companies

responsible for supplying electricity to end-use customers—to purchase allowances to account for the emissions

associated with the electricity they sell that is imported.” Id. at 1. The authors conclude that such regulations should be

found not to discriminate against out-of-state companies, hence in compliance with the dormant commerce clause.

Such regulations, they argue, “are fundamentally not protectionist regulations—to the contrary, they impose far greater

burdens on in-state generators than out-of-state generators would face.” Id. at iv (emphasis in original). The authors

add, however, that “this conclusion is subject to many caveats and nuances.... ” Id. at iv.

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of the generation that exceeds that standard is located outside California (in the coal states of

Wyoming and Montana), the law might be argued to overburden out-of-state competitors.95

Finally, DCC objections have been judicially raised to a state’s prohibition on use of out-of-state

renewable energy to satisfy the state’s required use of renewable energy by its utilities.96

G. The Public Trust Doctrine and GHG Emissions

In May 2011, a coordinated campaign of lawsuits and rulemaking petitions was initiated based on

the argument that (1) the states and the federal government have a public trust responsibility to

protect the atmosphere, and (2) with regard to climate change, they have failed to exercise that

responsibility.97 Either a lawsuit (about 12) or a petition (about 40) was filed in each state. The

lawsuits and petitions, many filed by minors through their guardians ad litem, are being

coordinated by Our Children’s Trust, an Oregon nonprofit.

As background, the public trust doctrine98 is an ancient common law principle with origins in

Roman law and the Magna Carta. It asserts that certain natural resources are held by the

sovereign in special status. Key aspects of that special status are that government may neither

alienate public trust resources nor, more pertinent here, permit their injury by private parties.

Rather, government has an affirmative duty to safeguard these resources for the benefit of the

general public. The doctrine is generally a principle of state law, though there is limited

recognition of a federal counterpart. After tidelands and the beds of navigable waterways, fish and

wildlife are the natural resources most traditionally associated with the public trust doctrine;

courts do not appear to have applied the doctrine to the atmosphere yet, as the suits and petitions

here are seeking.

As for the lawsuits, each one reportedly asks the court for declaratory relief proclaiming that the

atmosphere is a public trust resource and that the government in question has a fiduciary duty as

trustee to protect it. Some of the suits ask for injunctive relief as well.

Thus far, the trend in the litigation results has been against the plaintiffs—state trial courts

finding, for example, that the public trust doctrine does not apply to the atmosphere,99 or that the

doctrine is not recognized in the state.100 As yet there have been no rulings that a state, pursuant to

the public trust doctrine, must act to address climate change. The suit against the United States

was dismissed on the ground that the public trust doctrine is a purely state law doctrine, depriving

the court of subject matter jurisdiction.101 On the other hand, some acceptance of the Our

See Debra Kahn, Traders worry that a Calif. low-carbon fuels decision could apply to electricity imports, E&E

ClimateWire (January 20, 2012).

Illinois Commerce Comm’n v. Federal Energy Regulatory Comm’n, 721 F.3d 764, 776 (7th Cir. 2013) (dictum by

Judge Posner).

For further details, see CRS Report R41496, Common-Law Climate Change Litigation After American Electric

Power v. Connecticut, by (name redacted).

See generally Richard M. Frank, The Public Trust Doctrine: Assessing Its Recent Past and Charting Its Future, 45

U.C. Davis L. Rev. 665 (2012).

See, e.g., Aronow v. Minnesota Dep’t of Pollution Control, 2012 Westlaw 4476642 (Minn. App. October 1, 2012);

Fillipone v. Iowa Dep’t of Natural Resources, No. 2-1005 (Iowa Ct. App. March 13, 2013).

100

Martinez v. State of Colorado, No. 11CV4377 (Colo. D. Ct. November 7, 2011).

101

Alec L. ex rel Loorz v. McCarthy, 561 Fed. Appx. 7 (D.C. Cir. 2014).

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Children’s Trust arguments has come from Texas, Arizona, and New Mexico. In Texas, the

district court ruled that, owing to broad language in the state constitution, the public trust doctrine

“includes all natural resources of the State,” including the atmosphere, but that owing to pending

litigation on whether the Texas Clean Air Act covers GHGs, the state’s refusal to exercise its

GHG authority was reasonable.102 Similarly, an Arizona court accepted that the public trust

doctrine is not limited to water-related issues, but, as with Texas, found other reasons to dismiss

the case.103 In New Mexico, the district court found that plaintiff’s claim was not appropriate for

disposition at the pleading stage and may proceed to the merits.104 As for the rulemaking

petitions, however, these have been denied in at least 27 jurisdictions.105

The generally negative results of the public trust litigation and petitions thus far are not

surprising. As much as because the suits and petitions seek a major expansion of the public trust

doctrine, courts are traditionally reluctant to obtrude into matters, such as global climate change,

where there is little concrete guidance for determining liability or fashioning relief.

III. Liability for Harms Caused by Climate Change

Based on consensus predictions as to the many harms that climate change may cause, one may

safely predict that liability lawsuits will be filed. This report previously mentioned the standing

hurdle looming before climate change plaintiffs, especially those that are not states, and the

political question hurdle. Following are some additional issues in liability actions.

A. Liability After American Electric Power Co., Inc. v. Connecticut

In American Electric Power Co., Inc. v. Connecticut,106 the Supreme Court read the CAA to bar

federal judges from imposing their own limits on GHG emissions from fossil-fuel-fired power

plants, separate from those imposed by EPA under that act. More formally, the Court held that the

CAA displaces any federal common law of nuisance that might ground a claim seeking judicial

abatement of such emissions. However, American Electric Power left open two key questions.

First, may those suffering climate-change impacts still assert federal common law of nuisance

actions seeking not injunctive relief, as plaintiffs sought in American Electric Power, but rather

monetary damages? Second, do state law claims, either common law or statutory, withstand

American Electric Power, which addressed only federal common law claims?107

These questions were both answered in the negative in Comer v. Murphy Oil Co.108 There,

Mississippi landowners pressed state and federal tort claims (nuisance, trespass, and negligence)

against numerous oil, coal, and chemical companies that allegedly emitted substantial GHGs. The

102

Angela Bonser-Lain v. Texas Comm’n on Envtl. Quality, No. D-1-GN-11-002194 (Tex. D. Ct. August 2, 2012).

Butler v. Brewer, No. 12-0347 (Ariz. Ct. App. March 15, 2013).

104

Akilah Sanders-Reed v. Martinez, No. D-101-CV-2011-01514 (N.M. D. Ct. July 14, 2012).

105

See http://climatelawyers.com/post/2012/02/04/Aronow-v-Minnesota-is-Dismissed-Public-Trust-Doctrine-NotExtended-to-the-Atmosphere-in-Minnesota.aspx.

106

131 S. Ct. 2527 (2011).

107

See generally Scott Gallisdorfer, Note, Clean Air Act Preemption of State Common Law: Greenhouse Gas Nuisance

Claims After American Electric Power v. Connecticut, 99 Va. L. Rev. 131 (2013).

108

839 F. Supp. 2d 849 (S.D. Miss. 2012), affirmed, 718 F.3d 460 (5th Cir. 2013).

103

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landowners’ claims were based on property-related harms suffered as the result of Hurricane

Katrina—they argued that the defendants, through their GHG emissions and resulting climate

change, had contributed to warmer ocean temperatures that had intensified the hurricane, and to

rising sea level that aggravated the hurricane’s impacts further. They sought damages. Despite the

differences from American Electric Power—state rather than federal claims, monetary rather than

injunctive relief—the district court found that decision controlling. Here as in American Electric

Power, the court said, the lawsuit called upon the court to determine what level of CO2 emissions

was unreasonable, a determination the Supreme Court explained had been entrusted by Congress

to the EPA. So the court found the plaintiffs’ “entire lawsuit” displaced by the CAA.109 On appeal

to the Fifth Circuit, the district court was affirmed based on res judicata—that is, because an

earlier phase of the litigation had forever settled the justiciability issues in the case.

The other GHG decision on the monetary damages and state common law issues is Native Village

of Kivalina v. ExxonMobil Corp.110 In this case, Inupiat Alaska natives who will have to relocate

their coastal village due to shore erosion sued 22 energy and utility companies for relocation

costs. Their claim was that the defendants’ GHG emissions had, by adding to climate change,

contributed to the melting of sea ice that had protected the village’s shores from wave erosion.

Agreeing with Comer, the Ninth Circuit in Kivalina found the monetary damages claim displaced

under American Electric Power. Disagreeing with Comer, the court (most clearly in a concurring

opinion) left open the possibility of the village filing a state common law claim in state court,

though state courts are unlikely to be any more welcoming of common law challenges to global

problems than the federal courts in Comer and Kivalina.111

With the Fifth Circuit’s dismissal in Comer, and the Supreme Court now having declined to

review the Ninth Circuit’s decision in Kivalina, prospects for a significant common law response

to GHG emissions seem to be slim.

B. Insurance Coverage of Injury or Liability Associated with

Climate Change

Federal and private insurers are well aware that if the scientific consensus is correct that climate

change will bring on more frequent extreme weather events, they stand to make substantially

increased payments.112 At this time, there appear to be no insurance policies that provide explicit

109

839 F. Supp. 2d at 865.

696 F.3d 849 (9th Cir. 2012), cert. denied, 133 S. Ct. 2390 (2013).

111

In a non-GHG case, the Third Circuit held that the CAA does not preempt state tort claims based on the law

(common law or statutory) of the state where the pollution source is located. If a petition for certiorari is filed, the

Supreme Court might find this case attractive as a vehicle for resolving the unanswered question in American Electric

Power as to CAA displacement of state common law claims. Bell v. Cheswick Generating Station, 734 F.3d 188 (3d

Cir. 2013).

112

Evan Mills, The Greening of Insurance, 338 Science 1424 (December 14, 2012); Evan Lehmann, Reinsurers press

Congress to reduce U.S. risk from climate change (E&E ClimateWire, March 2, 2012); Evan Lehmann, Disasters,

continuing to climb, inflict record insurance losses in 2011 (E&E ClimateWire, January 5, 2012); Government

Accountability Office, Climate Change: Financial Risks to Federal and Private Insurers in Coming Decades Are

Potentially Significant, GAO-07-760T (2007). For general background, see Christina M. Carroll et al., CLIMATE

CHANGE AND INSURANCE (2012); Gary S. Guzy, “Insurance and Climate Change,” in Michael B. Gerrard (ed.), GLOBAL

CLIMATE CHANGE AND U.S. LAW (ABA 2007); Justin Pidot, Georgetown Envtl. Law and Policy Inst., Coastal Disaster

Insurance in the Era of Global Warming (2007) (copy on file with author); Adam Riedel, California, New York and

Washington to Require Insurers to Provide Information on Climate Change Risks, available at

(continued...)

110

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coverage for injuries resulting from climate change; however, there are policies that cover many

of the injuries likely to be associated with climate change, “such as flood, wind, freezing, heat,

earth movement, or collapse.”113

Some issues in the vast universe of insurance-coverage litigation seem to be especially relevant to

climate change. One arises from coastal hurricanes, the impacts of which may be exacerbated by

climate-change-induced sea level rise. The issue is whether a particular item of hurricane damage

is to be regarded as wind-caused damage or flood-caused damage. The distinction is pivotal

because domestic insurance policies cover only wind damage; flood damage is insured under the

National Flood Insurance Program.114 The litigation in this wind/flooding area, such as that

generated by Hurricane Katrina, is voluminous and often turns on factual questions, but also

raises such issues as (1) who, insurer or insured, bears the burden of showing the portion of

damage covered by the policy when both an insured (say, wind-caused) risk and a non-insured

(say, flooding-caused) risk contributed;115 (2) whether water driven by wind (“storm surge”) falls

outside the flooding exclusion in homeowners’ policies;116 and (3) whether the flooding exclusion

covers man-made causes (e.g., negligent maintenance of levees) as well as natural ones.117

Another issue is whether the Commercial General Liability (CGL) policy used by businesses

covers liability imposed on the insured as the result of the insured’s GHG emissions, when those

emissions contribute to climate-change-related damage. The only known decision on this issue is

AES Corp. v. Steadfast Ins. Co.,118 a ruling by the Virginia Supreme Court that the insurance

company was not obligated to provide defense under its CGL policy with AES in the Kivalina

suit,119 because Kivalina’s complaint did not allege an “occurrence.”120

Finally, some policies, such as environmental liability or pollution policies, cover damage from

“pollution.” Where “pollution” is defined in policies to mean substances classified as pollutants

under environmental laws, the Supreme Court decision in Massachusetts v. EPA may prove

pivotal.121 There, the Court held that GHG emissions are “air pollutants” under the Clean Air Act,

raising the possibility that this ruling will be used to enlarge policy coverage to bring in damage

traceable to GHG emissions.

(...continued)

blogs.law.columbia.edu/climate change/2012/02/06.

113

Guzy, supra note 112, at 554.

114

42 U.S.C. §§ 4001-4029.

115

See, e.g., Bayle v. Allstate Ins. Co., 615 F.3d 350 (5th Cir. 2010).

116

See, e.g., Leonard v. Nationwide Ins. Co., 499 F.3d 419 (5th Cir. 2007).

117

See, e.g., In re Katrina Canal Breaches Litigation, 495 F.3d 191 (5th Cir. 2007).

118

725 S.E.2d 532 (Va. 2012).

119

See description of this suit in text accompanying note 110 supra.

120

As the court explained, an insurance company must defend its insured only when the complaint against the insured

alleges facts that, if proved, fall within the risk covered by the policy. The CGL policy covers only an “occurrence,”

defined in the policy as an “accident.” Accidents, the court said, can occur with intentional acts, such as AES’s release

of GHGs, but only when the alleged injury is “out of the ordinary expectation of a reasonable person.” 725 S.E.2d at

536. That unexpected-injury condition was not met: Kivalina’s complaint alleged that the consequences of AES’s GHG

emissions—the damage to the village—were not merely foreseeable, but natural and probable. Based on that allegation,

there was no “accident” or “occurrence,” so the CGL policy did not provide coverage and the insurance company had

no duty to defend.

121

549 U.S. 497 (2011).

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C. U.S. Liability in International Fora Based on GHG Emissions

Whether sovereign nations may be, or should be, liable under international law for failing to

reduce GHG emissions within their territory has long attracted the attention of commentators122—

and, of course, low-lying nations. However, research fails to reveal any successful effort to

impose such liability.

Some principles that might be applied to a claim alleging GHG-caused injury might be taken

from the international law of transboundary pollution. For example, the Restatement (Third) of

Foreign Relations Law describes an international law principle under which a nation must “take

such measures as may be necessary, to the extent practicable under the circumstances, to ensure

that activities within its jurisdiction or control ... are conducted so as not to cause significant

injury to the environment of another state.”123 Similarly, the Trail Smelter arbitration decision,

probably the seminal ruling on state liability for transboundary pollution, declared that “[a] State

owes at all times a duty to protect other States against injurious acts by individuals from within its

jurisdiction.”124 Of course, as with the domestic litigation, daunting hurdles confront the

international-law claimant in making the link between climate change in general and specific

environmental harms, and in apportioning how much of such harms to attribute to the charged

parties.

Research reveals only one climate-change-related international law action filed against the United

States. In 2005, the chair of the Inuit Circumpolar Conference, on behalf of herself and all

affected Inuit of the arctic regions of the United States and Canada, filed a petition against the

United States with the Inter-American Commission on Human Rights, the investigative arm of

the Organization of American States (OAS).125 The petition alleged that the United States, through

its failure to restrict its GHG emissions and the resultant climate change, had violated the Inuits’

human rights—including their rights to their culture, to property, to the preservation of health,

life, and to physical integrity. Inuit culture is described in the petition as “inseparable from the

condition of [its] physical surroundings.”126 Generally, the Inter-American Commission on

Human Rights is empowered to recommend measures that contribute to human rights protection,

request states in urgent cases to adopt specific precautionary measures to avoid serious harm to

human rights, or submit cases to the Inter-American Court of Human Rights. The United States,

however, has not accepted the jurisdiction of this court, so the Inuit petition sought only to have

the commission prepare a report declaring the responsibilities of the United States and

recommending corrective measures.

122

See Michael Faure et al., CLIMATE CHANGE LIABILITY (2011); Richard Lord et al. (eds.), CLIMATE CHANGE

LIABILITY: TRANSNATIONAL LAW AND PRACTICE (2012); Timo Koivurova, International Legal Avenues to Address the

Plight of Victims of Climate Change, 62 J. Envtl. L. & Litig. 269 (2007); Andrew L. Strauss, The Legal Option: Suing

the United States in International Forums for Global Warming Emissions, 33 Envtl. L. Rptr. 10185 (2003).

123

RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 601(1). See also Legality of the Threat or Use of Nuclear

Weapons, Advisory Opinion, 1996 ICJ Reports 226, 241-242 (July 8, 1996) (“the existence of the general obligation of

states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas

beyond national control is now part of the corpus of international law relating to the environment”).

124

Trail Smelter (U.S. v. Canada), 3 R.I.A.A. 1938, 1965 (March 11, 1941).

125

Petition to the Inter American Commission on Human Rights Seeking Relief from Violations Resulting from Global

Warming Caused by Actions and Omissions of the United States, available at http://inuitcircumpolar.com/files/uploads/

icc-files/FINALPetitionICC.pdf. For detailed discussion of the petition, see Koivurova, supra note 122, at 285.

126

Id. at 5.

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In 2006, the Commission informed the petitioner that it would not process the petition “at

present,” explaining that “the information provided does not enable us to determine whether the

alleged facts would tend to characterize a violation of rights protected by the American

Declaration.”127

IV. Climate Change-Induced Water Shortages

A. Water Scarcity and Water Rights

It is widely predicted that climate change will exacerbate water scarcity—widening arid areas and

making them even drier. The future of the western United States has received substantial attention

in this regard.128 Where demand outstrips supply, the nature and flexibility of existing water rights

are raised.

To be sure, water rights, mostly a creature of state law, are property of a uniquely conditional

nature. Most obviously, the water rights holder does not own the water to which the right applies;

the right is merely “usufructuary,” that is, to use the water. In the western United States, water

rights generally are governed by “prior appropriation” doctrine, under which the right of use is

contingent on the right holder putting the water to “beneficial use,” and is further subject to

common law or statutory limits based on the public trust doctrine and the doctrine of reasonable

use. With regard to “reasonable use,” the California Constitution, as an example, declares that the

“unreasonable use or unreasonable method of use of water be prevented,” a doctrine that is selfexecuting and evolving.129 Appropriation doctrine is a “first in time, first in right” system under

which inadequate supply results in junior-in-time appropriators having their water cut before

senior-in-time appropriators. At bottom, of course, all water rights depend on the natural supply.

Despite the conditionality of water rights, it remains to be seen how much latitude government

has to respond to periods of water scarcity without effecting a Fifth Amendment taking of such

rights.130 In the short term, government response might take the form of cutbacks in the

consumption of vested water rights holders to accommodate critical public needs; in the long

term, legislative or judicial change in the water rights regime might be in order.131 It is also

unclear to what extent appropriation doctrine states may allow water rights holders to transfer

water rights, generally favored by scholars as promoting more efficient outcomes and the

127

Letter from Ariel E. Dulitzky, Ass’t Executive Sec’y, Inter-American Commission on Human Rights, to Sheila

Watt-Cloutier (November 16, 2006), available at http://graphics8.nytimes.com/packages/pdf/science/

16commissionletter.pdf. The “American Declaration” referred to by the Commission is the American Declaration of

the Rights and Duties of Man, OAS Res. XXX, available at http://www1.umn.edu/humanrts/oasinstr/zoas2dec.htm.

128

See the discussion of the possible effects of climate change on water availability in the western United States in

Priyanka Sundareshan, Using the Transfer of Water Rights as a Climate Change Adaptation Strategy: Comparing the

United States and Australia, 27 Ariz. J. Int’l & Comp. L. 911, 920-921 (2010).

129

Cal Const. art. 10, § 2 (describing the principles of beneficial use and reasonableness as “self-executing”); State

Water Resources Control Bd. v. Forni, 126 Cal. Rptr. 851 (Cal. App. 1976) (noting that “[w]hat is a [reasonable and]

beneficial use at one time may, because of changed conditions, become a waste of water at a later time”).

130

See A Dan Tarlock, Takings, Water Rights, and Climate Change, 36 Vt. L. Rev. 731, 732 (2012) (“when

legislatures, administrative agencies, and courts shift titles and reduce existing rights to share [water] resources more

equitably among competing demands, there will be takings challenges”).

131

Judicial change in the water rights regime raises the issue of “judicial takings.” See text accompanying note 149

infra.

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achieving of environmental goals.132 One writer has noted that in the West, the explosive

population growth of recent decades has often occurred in communities with only junior water

rights. Senior water rights holders often include older municipalities, mining, and agriculture.133

The question then arises whether reasonable use and other doctrines qualifying appropriation

water rights can address the difficult situation of new communities being starved for water while

senior appropriators endure little or no reduction in water supplies.

States have evolved a variety of additional mechanisms for allocating water among rights holders

in times of scarcity. Many states exempt certain “domestic” uses of water (e.g., for stock

watering, home use, or lawn watering) from the general permit scheme. If climate change

produces more droughts, conflicts will increase between exempted users and those with

appropriation rights, especially senior appropriators. In some cases, the ability of an exempted

user to leapfrog over the rights of senior appropriators may be held subject to payment of

compensation under the constitutional right to compensation for the taking of property.134

The above issues also are likely to arise with groundwater, which, as with surface water, is

usually held by the landowner under a right of use only, not outright ownership.135 A recent Texas

Supreme Court decision, however, adopted the minority view of outright ownership, analogizing

to ownership of underlying oil and gas. The court reassured the state that conservation of

groundwater, in this instance from the Edwards Aquifer, still can be done without takings as long

as the problems of limited water supply “are shared by the public, not foisted onto a few.”136

However, in the first Texas case following this decision, a court concluded that the state’s

permitting system for groundwater withdrawals from the Edwards Aquifer effected a regulatory

taking of the plaintiffs’ land.137

B. Water Diversion and Delivery Cutbacks

Periods of low precipitation, as may be more frequent in the future due to climate change, have

generated several court decisions where the conflict was between the water needs of the public

and those of fish in streams. These decisions resolved claims of Fifth Amendment takings of

water rights and claims of government breach of water-supply contracts based on cutbacks in the

amount of water delivered from federal water projects—as demanded by the Endangered Species

Act138 and the Central Valley Improvement Act.139 A key issue in these cases has been whether the

132

Sundareshan, supra note 128, at 923-925. See also Mark Squillace, Water Transfers for a Changing Climate, 53

Nat. Res. J. 55 (2013).

133

Joel Smith et al., Georgetown Climate Center, Adaptation Case Studies in the Western United States at 22 (2011)

(writing with specific reference to Colorado’s prior appropriation doctrine).

134

See, e.g., Bassinger v. Taylor, 164 P. 522, 523 (Idaho 1917).

135

Again using California as our example, that state’s Supreme Court has explained that “overlying water rights are

usufructuary only, and while conferring the legal right to use the water that is superior to all other users, confer no

private right of ownership in public waters.” City of Barstow v. Mohave Water Agency, 5 P.3d 853, 860 n.7 (Cal.

2000). An illustrative decision on a takings challenge to a county restriction on withdrawal of groundwater (not, so far

as appears, for climate change reasons) is Allegretti & Co. v. County of Imperial, 42 Cal. Rptr. 3d 122 (Cal. App. 2006)

(no physical or regulatory taking caused by 12,000 acre-feet per year limit imposed by county in groundwater

withdrawal permit).

136

Edwards Aquifer Auth. v. Day, 369 S.W.3d 814 (Tex. 2012). The case was remanded for further development of the

factual record, as needed to apply the regulatory takings test.

137

Edwards Aquifer Auth. v. Bragg, 2013 WL 5989430 (Tex. App. Nov. 13, 2013).

138

Tulare Lake Basin Water Storage Dist. v. United States, 49 Fed. Cl. 313 (2001) (holding that taking occurred);

(continued...)

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taking claim is to be analyzed by the court as a physical taking of the water, or as a regulatory

taking of use rights in the water. The distinction matters a great deal. In general, a plaintiff’s

litigation prospects are substantially improved if the court adopts a physical takings framework,

thus the physical versus regulatory takings issue has been hard fought in the courts. Currently, it

appears that when the government requires a physical diversion of the water away from the

plaintiff’s desired use (as to operate a fish ladder), the plaintiff-friendly physical taking approach

is triggered.140 But, it would appear, not otherwise.

Another issue has been the role of doctrines that qualify water rights—principally, public trust

and reasonable use.141 Do these doctrines allow the government to set supervening public

priorities for fish preservation as part of rights it retains when conferring water rights? If the

government retains such rights, no taking claim can succeed, for the water rights holder cannot be

found to have suffered a taking of a right he or she never acquired.

V. Sea Level Rise and Extreme Precipitation

A. Effect of Sea Level Rise on the Beachfront Owner’s

Property Line

Sea level rise generally causes the boundary between land and water to move landward.142 The

common law has long had to deal with such shifting boundaries—in particular, with who owns

land newly dry or newly submerged. The rule, dating back to Roman times, turns on whether the

land-water boundary shift occurred slowly or quickly. When land-water boundaries shift

gradually and imperceptibly—“so slowly that one could not see the change occurring”143—the

ownership boundary shifts with it. Thus, in the case of “accretion,” defined as the gradual

depositing of alluvion (sand, sediment, or other deposits) so as to enlarge one’s tract, the owner of

the tract becomes the happy owner of the accreted area as well. The shore owner may be less

pleased, however, with “erosion,” the gradual and imperceptible boundary shift towards land

(...continued)

Klamath Irrigation Dist. v. United States, 635 F.3d 505 (Fed. Cir. 2011) (remanding taking and breach claims for

further proceedings); Casitas Municipal Water Dist. v. United States, 708 F.3d 1340 (Fed. Cir. 2013) (taking claim held

not ripe).

139

Stockton East Water Dist. v. United States, 101 Fed. Cl. 352 (2011) (dismissing taking claim); 2013 Westlaw

751280, 766531 (Fed. Cl. February 28, 2013) (awarding contract damages).

140

Casitas Municipal Water Dist. v. United States, 543 F.3d 1276 (Fed. Cir. 2008).

141

As explained in the Casitas remand, 102 Fed. Cl. at 455, with reference to the state of California:

Under the public trust doctrine, state agencies have the responsibility to protect trust resources

associated with California’s waterways, such as navigation, fisheries, recreation, ecological

preservation, and related beneficial uses. …. Similarly, the reasonable use doctrine prohibits the

waste, unreasonable use, unreasonable method of use, and unreasonable method of diversion of

water. (citations omitted)

142

In some locations, sea level relative to the adjacent land has “fallen” because the land has risen more than the sea

level. Land may rise once relieved of the massive weight of retreating glaciers as the result of climate change, natural

and human-induced. Cornelia Dean, As Alaska Glaciers Melt, It’s Land That’s Rising, New York Times, May 19, 2009,

at A1.

143

Stop the Beach Renourishment, Inc. v. Florida Dep’t of Envtl. Prot., 560 U.S. 702, 708 (2010).

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when former upland is submerged. As with accretion, the property line moves—landward this

time.144

In contrast with accretion and erosion, sudden shifts in the land-water boundary, known

regardless of direction as “avulsion,” do not shift ownership lines. A classic avulsive event is a

hurricane that abruptly shifts the mean high water mark on a beach either seaward or landward. In

this case, the property line between the owner of the intertidal zone and permanently submerged

lands (typically the state in trust for the public) and the owner of uplands beyond the high water

mark (typically a private entity) does not move.145

A key question is whether movement in the land-water boundary owing to climate-change-caused

sea level rise is fast enough to be avulsive, leaving the property line unmoved, or gradual enough

to be erosion, reducing the shoreowner’s property.146 No case law on the point exists, but scholars

predict that courts will favor the latter. One scholar asserts: “The rising sea level [from climate

change] is neither gradual like traditional accretion, erosion, or reliction; nor is it sudden and

violent like traditional avulsion. We are facing a historically distinct situation that is not a good

factual fit with the [traditional common law] rules.”147 Nonetheless, he stresses that in light of the

public interest in maintaining authority over water-covered areas (e.g., for regulating navigation)

and the adjacent foreshore, the judicial presumption in the case law strongly leans toward

accretion and erosion, with their migrating property lines.148 Likewise, two other scholars predict

that “in most instances sea level rise [from climate change] will transform private property into

public property as sea waters cover formerly dry land.”149 Courts are unlikely to view this privateto-public change as a Fifth Amendment taking of property rights, since property is held subject to

traditional common law principles.

Case law authority also suggests that public trust ownership of coastal submerged lands and the

adjacent intertidal zone (between low and high water mark) expands automatically when erosion

occurs. That is, no legal process is required. In McQueen v. South Carolina Coastal Council, for

example, that state’s high court decreed that under state law, wetlands created by the

encroachment of navigable tidal water belong to the state—that is, are public trust property. That

such lands were upland when acquired and that the tidelands were subsequently created by the

144

See, e.g., City of Long Branch v. Jui Yung Liu, 4 A.3d 542, 550 (N.J. 2010).

For extended discussion of the law of accretion and avulsion, see Joseph L. Sax, The Accretion/Avulsion Puzzle: Its

Past Revealed, Its Future Proposed, 23 Tulane Envtl. L. J. 305 (2010), and James G. Titus, Rising Seas, Coastal

Erosion, and the Takings Clause: How to Save Wetlands and Beaches Without Hurting Property Owners, 57 Md. L.

Rev. 1279 (1998).

146

Identifying the portion of coastal erosion attributable to sea level rise may be a challenge. One writer notes: “In

many Gulf of Mexico states, … the projected rate of beach loss due to sea level rise is overwhelmed by the current

background rate of erosion.” Donna M. Christie, Sea Level Rise and Gulf Beaches: The Specter of Judicial Takings,

26 J. Land Use & Envtl. L. 313, 314 (2011).

147

See Joseph L. Sax, Some Unorthodox Thoughts About Rising Sea Levels, Beach Erosion and Property Rights, 11 Vt.

J. Envtl. L. 641, 645 (2010).

148

Joseph L. Sax, supra note 145. The presumption favoring accretion and erosion, Prof. Sax notes, “has largely

relegated the avulsion rule to a minor role.... ” 23 Tulane Envtl. L. J. at 351.

149

J. Peter Byrne and Jessica Grannis, Coastal Retreat Measures, in Michael B. Gerrard and Katrina F. Kuh, (eds.),

THE LAW OF ADAPTATION TO CLIMATE CHANGE: U.S. AND INTERNATIONAL ASPECTS (ABA 2012). See also J. Peter

Byrne, The Cathedral Engulfed: Sea-level Rise, Property Rights, and Time, 73 La. L. Rev. 69, 80 (2012) (“Sea level

rise is incremental, and therefore, corresponding land loss will be subject to the doctrine of accretion.... ”).

145

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rising of tidal water, said the court, cannot defeat the state’s presumptive title to the tidelands.150

As well, the court held, the state incurs no takings liability.

As long as state courts are able to ground such extensions of public trust lands in traditional

common law, no Fifth Amendment taking from beachfront property owners is likely to be

discerned. As noted, title to coastal property (or any other property) is assumed to be qualified by

traditional common law principles, and public trust doctrine certainly falls into this category.151

On the other hand, if courts use sea level rise as an occasion to expand public trust doctrine

beyond its traditional state-law parameters or to otherwise shrink littoral rights, the possibility of

a so-called “judicial taking” may arise. This novel concept, that courts may effect takings just as

other branches of government do, received a non-precedential boost in 2010 when a Supreme

Court plurality proposed that “[i]f a legislature or a court declares that what was once an

established right of private property no longer exists, it has taken that property.”152 As yet,

however, no court has ever found a judicial taking in a final decision.

B. “Rolling” Beach Easements and Removal Requirements

Cases out of Texas and North Carolina illustrate the constitutional issues that may be raised in the

future by landward migration of beaches due to climate-change-induced sea level rise.

Severance v. Patterson153 deals with the Texas Open Beaches Act, which imposes a public-access

easement on the state’s beaches extending landward to the dune vegetation line. The lower Texas

courts had long construed this access easement to “roll”—that is, to migrate with movements in

the dune vegetation line. The consequence is that landward movement of the vegetation line may

result in private land, including improved parcels, being newly encumbered by the easement.

Under the act, the state may then order the improvement (e.g., a house) removed, although some

compensation is provided for removal expenses. Carol Severance bought two houses behind the

vegetation line, only to have Hurricane Ike a few months later move the line landward of her

houses—making them subject to removal orders. She asserted Fifth Amendment takings and

Fourth Amendment unreasonable seizure claims.

The Fifth Circuit found the taking claim unripe, but certified questions to the Texas Supreme

Court as to Severance’s Fourth Amendment claim. In its answers, the Texas Supreme Court

narrowed the circumstances when the public access easement rolls.154 It concluded that

“[a]lthough existing public easements in the dry beach of Galveston’s West Beach are dynamic,

as natural forces cause the vegetation and the mean high tide lines to move gradually and

150

580 S.E.2d 116 (S.C. 2003). See also City of Long Branch, 4 A.3d at 550 (“[u]nder the common law, the owner of

oceanfront property takes title to dry land added by accretion, but loses to the State title over land that becomes tidally

flowed as a result of erosion”); Bollay v. California Office of Administrative Law, 122 Cal. Rptr. 3d 490, 493 (Cal.

App. 2011) (“the mean high tide line may change over time, affecting the seaward boundary of property along the

coast”).

151

See, e.g., Robin K. Craig, Public Trust and Public Necessity Defenses to Takings Liability for Sea Level Rise

Responses on the Gulf Coast, 26 J. Land Use & Envtl. L. 395 (2011).

152

Stop the Beach Renourishment, Inc. v. Florida Dep’t of Envtl. Prot., 560 U.S. 702, 704 (2010) (emphasis in

original). See generally Christie, supra note 142. As noted by Justice Kennedy in his Stop the Beach Renourishment

concurring opinion, the Due Process Clause also constrains state courts from substantially reducing property rights by

arbitrary or irrational decision.

153

566 F.3d 490 (5th Cir. 2009), on answers to certified questions, 682 F.3d 360 (5th Cir. 2012).

154

370 S.W.3d 705 (Tex. 2012).

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imperceptibly, these easements do not spring or roll landward … as a result of avulsive events.”

In so ruling, the court reversed the decades-old interpretation of the Texas Open Beaches Act in

the lower state courts, which had allowed the public access easement to roll no matter how abrupt

the movement in the vegetation line. Also important, the Texas court ruling raises again the

question asked in Section IV.A. as to whether climate-change-caused sea level rise should be

considered gradual or avulsive.155

Similar litigation exists in North Carolina. There, the vegetation line moved from the seaward to

landward side of homes by gradual beach erosion, rather than a hurricane. The consequence was

that the town ordered the homes’ demolition, under an ordinance declaring structures on

oceanfront beaches to be nuisances—and asserting a public trust in both the wet and dry sand

beach. The two takings claims filed (one as a counter-claim) have yet to be finally resolved.156

Still another example of law anticipating landward migration of beaches are the coastal sand dune

rules promulgated by a Maine state agency under that state’s Natural Resources Protection Act.157

Similar to the Texas statute and North Carolina ordinance above, the Maine rules instruct that if

the shoreline recedes such that a coastal wetland extends to any part of a structure for six months,

the structure must be removed.158 The rules also bar a project in a coastal sand dune system “if,

within 100 years, the project may … be eroded as a result of changes in the shoreline such that

the project is likely to be severely damaged after allowing for a two foot rise in sea level over 100

years.”159

C. Shifting Floodplain Designations

Sea level rise and extreme rains born of climate change may cause lands not formerly subject to

flooding to become so. Land use planners have long encountered resistance updating floodplain

designations because such a designation alerts potential buyers that a parcel is vulnerable,

possibly reducing the parcel’s market value. It is unlikely, however, that a floodplain designation

could, in itself, result in enough value loss to constitute a Fifth Amendment regulatory taking of a

property.160

155

The Fifth Circuit remanded Severance to the district court for further proceedings on the Fourth Amendment

unreasonable seizure claim consistent with the Texas Supreme Court’s answers to the certified questions. 682 F.3d 360

(5th Cir. 2012).

156

Sansotta v. Town of Nags Head, 724 F.3d 533 (4th Cir. 2013) (holding taking claim ripe); Town of Nags Head v.

Toloczko, 728 F.3d 391 (4th Cir. 2013) (same holding on different grounds). In 2012, a North Carolina court held that

the public trust doctrine was a state doctrine that could only be asserted by the state, not the town of Nags Head. Town

of Nags Head v. Cherry, Inc., 723 S.E.2d 156 (N.C. Ct. App.), rev. denied, 733 S.E.2d 85 (N.C. 2012). Hence, the

takings claims in these cases, based on the now-rescinded demolition order, presumably will be litigated as temporary

takings claims.

157

38 Me. Rev. Stat. Ann. §§ 480-A through 480-HH.

158

Me. Dep’t of Envtl. Prot. Admin. Code ch. 355, § 10.A.

159

Id. at § 5.C.

160

See, e.g., Strother v. City of Rockwall, 358 S.W.3d 462 (Tex. App. 2012) (taking claim based on redesignation of

land as floodplain defeated by, among other reasons, fact that land continued to be used for rental).

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D. Issues Related to Levees and Dams

Damage from climate-change-caused extreme weather or sea level rise may require courts in the

future to clarify federal liabilities in connection with the design, construction, and operation of

levees and dams by the Army Corps of Engineers. The extensive litigation following the

breaching and overtopping of the levees protecting New Orleans during Hurricane Katrina may

be a harbinger of climate-change-related litigation.

Two statutes make clear that the United States’ tort liability for harms from extreme weather or

sea level rise is likely to be limited when based on levee/dam design, construction, and

operation.161 Under section 3 of the Flood Control Act, “[no] liability of any kind shall attach to

or rest upon the United States for any damage from or by flood waters at any place….”162 Under

the Federal Tort Claims Act, no tort action can be maintained against the United States if based on

a federal official’s exercise of a “discretionary function”—meaning a decision where there is

room for policy judgment and discretion.163 This includes the large majority of decisions in

connection with the design, construction, and operation of dams and levees. For example, the

Fifth Circuit, addressing a Corps of Engineers shipping channel (with levees) that had the effect

of channeling Hurricane Katrina storm surge to New Orleans, found the Corps not liable in tort

for the resulting harm.164 One or the other of the two liability exemptions above applied to each

claim of injury.

Shifting from torts to takings, the picture becomes cloudier. On the one hand, the government is

not responsible for climate-change-related flooding that would have occurred had the government

not constructed the levee or dam.165 Thus, installation of protective measures such as levees and

dams “does not constitute the Government a taker of all lands not fully and wholly protected.”166

For example, a takings claim based on Katrina-related damage to New Orleans, alleging the

Corps’ failure to adequately design, build, or maintain adequately its levees protecting the city,

was rejected.167 The government, said the court, was not the cause of the damage. Even if the

government project inflicts slight damage on a property owner in one respect, it is not a taking if

the project “actually confer[s] great benefits when measured in the whole.”168

On the other hand, significant flood-related damage that would not have happened in the absence

of the levee or dam is a potential taking—and, in contrast with torts, any discretion afforded

government officials would not be a defense. Moreover, the Supreme Court recently repudiated

the long-standing case law that only government-caused flooding that is either permanent or at

161

See generally CRS Report RL34131, Flood Damage Related to Army Corps of Engineers Projects: Selected Legal

Issues, by Cynthia Brougher; David M. Stein, Flood of Litigation: Theories of Liability of Government Entities for

Damages Resulting from Levee Breaches, 52 Loy. L. Rev. 1335 (2006).

162

33 U.S.C. § 702c.

163

28 U.S.C. § 2680(a).

164

In re Katrina Canal Breaches Litigation, 696 F.3d 436 (5th Cir. 2012), cert. denied, 133 S. Ct. 2855 (2013).

165

United States v. Sponenbarger, 308 U.S. 256, 265 (1939).

166

Id.

167

Nicholson v. United States, 77 Fed. Cl. 605 (2007) (United States’ failure to adequately design, build, or maintain

flood protection system in New Orleans before and after Hurricane Katrina did not effect taking; rather, property

damage was due to flooding caused by storm surge and such flooding was not the direct, natural, or probable result of

the flood protection system).

168

Sponenbarger, 308 U.S. at 266.

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least “intermittent but inevitably recurring” can be a taking (and can otherwise be only a tort).

Now, after Arkansas Game & Fish Comm’n v. United States,169 even temporary floods, if

“repeated,” may be takings—depending on various factors set out by the Court.170 Moreover, the

decision may well extend to non-repeated temporary floods—even single ones—depending on

how one reads it. Whether Arkansas extends to non-repeated temporary floods is currently in

litigation, and has important implications for one-time intentional releases of water from levees or

dams that may be necessitated by extreme weather events due to climate change. Alternatively,

the Corps of Engineers, which operates many water-control facilities, may find itself buying more

flowage easements, giving it the legal right to flood private land.

A final levee-related legal issue is suggested by a news article describing opposition of residents

in Virginia’s Middle Peninsula to planners’ proposal to rezone land for use as a dike against rising

water, and noting that “[o]utside of greater New Orleans, Hampton Roads is at the biggest risk

from sea-level rise of any area its size in the United States.”171 The specter of takings claims

looms if the rezoning results in the severe devaluation of parcels, or is analyzed as a physical

taking based on the building of the dike.

E. Failure to Take Preventive Measures

The scientific consensus that climate change will lead to further sea level rise raises the issue

whether governments can be held liable for failing to act to avert the harmful impacts of such rise.

Generally, failure to act cannot be the basis of a taking claim. But when a city fails to act on a

hazard that is specific and well understood, negligence may lie. Thus, in one case with relevance

to future heavy rains from climate change, the court held that allegations that a city was aware of

the potential for overflow from the city landfill’s retention ponds, and its subsequent failure to

take measures to prevent such overflow, did not state a taking claim, but did properly assert

negligence.172

VI. Other Adaptation Responses to Climate Change

The previous section touched on a few adaptation measures specifically related to sea level rise.

This section continues with additional adaption measures that raise legal issues.173

169

133 S. Ct. 511 (2012).

At the same time, the Court suggested that proving a taking based on temporary flooding would be an uphill climb:

“To reject a categorical bar to temporary-flooding takings claims ... is scarcely to credit all, or even many, such

claims.” Id. at 521.

171

Darryl Fears, “Climate change fight intensifies in Virginia,” Wash. Post December 18, 2011, at A3.

172

City of El Paso v. Ramirez, 349 S.W.3d 181 (Tex. App. 2011). See generally Annot., Liability for overflow or

escape of water from reservoir, ditch, or artificial pond, 169 ALR 517.

173

In a definitive study of possible regulatory adaptations to sea level rise, the following are listed as possible

“regulatory tools”: zoning and overlay zones, floodplain regulations, building codes and resilient design,

setbacks/buffers, conditional development and exactions, rebuilding restrictions, subdivisions and cluster development,

hard-armoring permits, soft-armoring permits, and rolling coastal management / rolling easement statutes. Jessica

Grannis, Georgetown Climate Center, Adaptation Tool Kit, Sea-Level Rise and Coastal Land Use: How Governments

Can Use Land Use Practices to Adapt to Sea-Level Rise (2011).

170

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A. Beach Issues

1. Armoring

Shoreline “armoring”—seawalls, revetments, rip-rap, bulkheads, and manmade sand dunes174—

has obvious relevance to climate-change-caused sea level rise. The definition of armoring in the

Florida administrative code is as good as any: “a manmade structure designed to either prevent

erosion of the upland property or protect eligible structures from the effects of coastal wave and

current action.”175 The right to erect shore defense structures on one’s property has long-standing

common law imprimatur, yet the practice has its detractors. Seawalls, for example, have been said

to deflect waves onto other beaches, causing sand to be scoured away, and also to cut off the

natural supply of sand to the beach from the sand dune behind the wall.

As a result of these problems, some states prohibit armoring on oceanfront properties, allowing

the natural landward migration of the land-water boundary caused by sea level rise.176 Such

natural migration of the boundary allows the creation of new, ecologically valuable wetlands to

replace those lost to sea level rise, and the expansion of public trust lands. An obvious issue,

however, is whether these and other consequences of anti-armoring laws (such as collapsing

homes) trench on private property rights in a manner that must be compensated as a taking.

Though the issue is certainly unresolved by the limited relevant litigation, the balance of

arguments seems to tip against a taking. Most obviously, the harm to the littoral owner likely

would be viewed by courts as resulting from sea level rise, not the armoring restriction.177

A taking claim was rejected, logically enough, where the shore owner proposed armoring on

public trust lands. The case is McQueen v. South Carolina Coastal Council,178 in which the state

denied the owner of a tract along a manmade canal permission to build a seawall and to backfill.

Even though without the seawall the tract was assumed to be unbuildable and have zero value, no

taking of plaintiff’s property was found to have occurred. As the court saw it, plaintiff’s land had

largely reverted to public-trust tideland belonging to the state by the time his application was

denied. Thus, the seawall permission denial took nothing plaintiff had at the time of his

application. Recall the earlier discussion of shifting public trust in connection with this case in

Section IV.A.

In the absence of armoring restrictions, one can expect sea level rise to cause more beachfront

landowners to install defensive structures. As a result, questions as to liability for harm to

neighboring tracts may be raised more often. A hoary common law principle, the “common

174

In this report, “armoring” does not include levees erected for flood protection, though some writers would extend

the term that far. Levees are treated separately in Section IV.D.

175

Fla. Admin. Code R. § 63B-33.002(5).

176

Other states regulate seawalls short of outright prohibition, at least where the seawall is to be located seaward of the

mean high water mark. See, e.g., Sams v. Connecticut Dep’t of Envtl. Prot., 308 Conn. 359 (2013) (seawall built

seaward of high water mark without required permit must be removed as statutorily declared nuisance); California caps

on seawall permits prompt outcry, lawsuits, E & E News (May 28, 2013).

177

See, e.g., Shell Island Homeowners Ass’n, Inc. v. Tomlinson, 517 S.E.2d 406, 415 (N.C. App. 1999) (rejecting

taking challenge to state anti-armoring statute on ground that “naturally occurring phenomena are the primary causes of

any loss sustained by plaintiffs”). For a fuller recitation of the takings arguments pro and con with respect to antiarmoring statutes, see J. Peter Byrne, Rising Seas and Common Law Baselines: A Comment on Regulatory Takings

Discourse Concerning Climate Change, 11 Vt. J. Envtl. L. 625, 636-638 (2010).

178

580 S.E.2d 116 (S.C. 2003).

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enemy doctrine,” holds that one may erect defenses against the sea even though doing so may

cause water to beat with added force against adjoining lands and require the adjoining landowner

to also erect defenses.179 Many states, however, have moved away from the common enemy

doctrine toward a rule of reasonableness, under which liability for harm to others is avoided only

when the interference with the flow of surface waters is “reasonable,” a term that could benefit

from judicial clarification.180

Do armoring structures block the landward shift of the line between public and private ownership,

typically the mean high water mark, when that mark reaches such a structure? In United States

(Lummi Nation) v. Milner,181 the Ninth Circuit said no; the ownership line continues to move as if

the armoring structure had not been built. While the upland owner has the right to erect structures

on his or her property to defend against erosion and storm damage, the tideland owner has “a

vested right to the ambulatory boundary and to the tidelands they would gain if the boundary

were allowed to ambulate.”182 In short, the upland owner “[does] not have the right to

permanently fix the property boundary” absent the tideland owner’s consent.183 The court pointed

out that its ruling might have limited applicability, given that the tideland owner here was an

Indian tribe and its federal trustee, rather than the state as in the usual case. This allowed the

federal court to create federal common law, while most such disputes over tideland/upland

boundaries are handled by state courts under state law. One commentator notes that “[t]he

decision, if applied generally, might make many homes now behind seawalls trespassers on state

property.”184

Different issues arose when it is the government, not a private beachfront owner, that is pushing

for armoring. In a high-profile case, a New Jersey municipality condemned an easement to erect a

22-foot-high dune on private beachfront property, to protect a barrier island from storms. The

intermediate appellate court held that the jury’s $375,000 compensation award, largely for the

dune’s partial blockage of the property owner’s ocean view, was not to be reduced by the stormprotection benefit conferred on the owner. Under well-established law, the court said,

compensation awarded a condemnee is offset only by benefits of the project specific to the

condemnee (“special benefits”), not those enjoyed by the community at large (“general benefits”).

The benefit conferred by the dune was protection of the island from storms—in the court’s view,

a general benefit, hence not an offset. The New Jersey Supreme Court reversed, saying that the

distinction between general and special benefits should be abandoned.185 The only consideration,

it said, was whether the benefit to the landowner had an ascertainable effect on the land’s market

value. On that new standard, plaintiffs settled for one dollar—and, in a case brought by similarly

situated land owners in the same municipality, a jury awarded $300.186

179

United States (Lummi Nation) v. Milner, 583 F.3d 1174, 1189 (9th Cir. 2009), citing Revell v. People, 52 N.E. 1052,

1059 (Ill. 1898).

180

See generally Wendy B. Davis, Reasonable Use Has Become the Common Enemy, 9 Alb. L. Envtl. Outlook J. 1, 910 (2004); William B. Stoebuck and Dale A. Whitman, THE LAW OF PROPERTY 432-433 (3d ed. 2000).

181

583 F.3d 1174 (9th Cir. 2009).

182

Id. at 1189-1190.

183

Id. at 1190.

184

Joseph L. Sax, Some Unorthodox Thoughts About Rising Sea Levels, Beach Erosion, and Property Rights, 11 Vt. J.

Envtl. L. 641, 642 n.7 (2010).

185

Borough of Harvey Cedars v. Karan, 70 A.3d 524, 541 (N.J. 2013).

186

See http://www.app.com/story/news/local/southern-ocean-county/2014/06/30/dune-easment-harvey-cedars-oceancounty/11814891/.

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The low dollar amounts received by the landowners in these New Jersey cases implicitly

acknowledged that the benefit to the owners of soft armoring was, in terms of property value,

roughly comparable to any reduction caused to such value, as by blocking ocean views. By

lowering government costs, these small awards remove a possible threat to certain state measures

to protect coastal communities from storms and sea level rise.

2. Renourishment

Adding sand back to eroded beaches or building up beaches, often called beach “nourishment” or

“renourishment,” may be increasingly resorted to as climate change progresses and sea level

rises. In the near term (but unlikely beyond), repairing the ravages of storms may be preferable to

the difficulties of moving existing coastal population inland. Even Members of Congress who

generally seek to limit federal spending have strongly supported Corps of Engineers beach

restoration projects where the local economy depends on attractive beaches.187

The Supreme Court, too, has turned its attention recently to beach renourishment projects. In Stop

the Beach Renourishment, Inc. v. Florida Dep’t of Environmental Protection,188 the Court

confronted a Florida beach renourishment project that had provoked objection from a handful of

the affected beachfront property owners. Those owners insisted that by adding a strip of stateowned beach in front of their eroded privately owned beach, the state had effected a Fifth

Amendment taking of two of their littoral property rights: the right to ownership of future

accreted land and the right to direct contact with the water. The Supreme Court held unanimously

that the Florida Supreme Court had properly found no taking, since the shore owners had not

shown that these littoral rights were superior to the state’s right to fill in its submerged land. Note

that the restored beach belonged to the state: “Florida law as it stood before the decision below

allowed the state to fill in its own seabed, and the resulting sudden exposure of previously

submerged land was treated like an avulsion for purposes of ownership.”189 Avulsions, recall, do

not move ownership boundaries.

While Stop the Beach Renourishment was a victory for beach renourishment efforts, the decision

turned on Florida case law precedent that may not be replicated in other states. Thus, legal

challenges by littoral owners to beach restoration projects can be expected to continue.190 Suffice

it to say that if the restored portion of a beach must be privately owned to avoid takings

compensation, states are unlikely to commit public funds to such restoration.191

187

Evan Lehmann, Conservative lawmakers, protecting their beaches, also adapt to climate change (E&E ClimateWire

February 10, 2012).

188

560 U.S. 702 (2010).

189

Id. at 2611.

190

See, e.g., Lynnhaven Dunes Condominium Ass’n v. City of Virginia Beach, 733 S.E.2d 911 (Va. 2012) (city-built

strip of restored beach effected taking of association’s riparian right of accretion).

191

A related instance of state resistance to funding beach restoration occurred in Texas as the result of the state

supreme court’s decision in Severance v. Patterson. As explained more fully in text accompanying notes 132 and 133,

the court ruled that the state’s public beach access easement, where it exists, does not “roll” (migrate) following sudden

movements of the beach vegetation line, as following a hurricane—only following gradual movements of the

vegetation line. In response, the Texas General Land Office has said that it “will not provide grant funds for erosion

projects on private property without a rolling easement that grants public access to the beach.” Texas General Land

Office, Severance v. Patterson: Frequently Asked Questions, available at http://www.glo.texas.gov/what-we-do/caringfor-the-coast/_documents/open-beaches/faq-open-beaches.pdf.

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Because the Florida and U.S. supreme courts found no property rights impaired in Stop the Beach

Renourishment, they had no occasion to clarify how the benefit to the beachfront property owner

from renourishment might factor into the taking analysis. This is a key question if the costs of

beach renourishment, or at least protective sand dunes built by the government on private

property, are to be affordable—an offset to the compensation owed the property owner based on

the benefits he reaps from the government action might greatly reduce the amount owed.

In the previous section on armoring, a state court decision approving the reduction of monetary

awards to beachfront property owners on the basis of a project’s storm protection benefits was

described. Similarly, a North Carolina court found a zero-dollar offer to a beachfront landowner

adequate in connection with a beach renourishment project (though subject to final determination

in an eminent domain proceeding). The court cited the project’s benefits to the landowner as

adequate compensation.192

B. “Managed Retreat”—Moving Development Inland

Levees, armoring, and beach restoration, discussed above, have long been well-understood

techniques, widely supported by landowners if not by environmentalists. Given sea level rise of

the magnitude predicted from climate change, however, the long-term viability of such structural

protections seems dubious.193 Attention is shifting instead toward “managed retreat”—

government actions that discourage new development in disaster-prone areas (proactive retreat) or

reconstruction following such disasters (reactive retreat).194 When that discouragement takes the

form of outright prohibition on development—rather than merely removal of development

incentives—the taking issue rises yet again.195 Takings concerns loom as well with regulations

that merely have the effect of an outright prohibition as applied to a specific parcel of land—for

example, minimum distance from the water requirements applied to small tracts of land. In

contrast, special structural requirements for rebuilding (such as elevated homes in flood-prone

areas) are less likely to be deemed takings and thus be held compensable.

One legal question is whether the specific context of sea level rise due to climate change may

offer the government defenses against regulatory takings claims not otherwise available. One

possible starting point is Lucas v. South Carolina Coastal Council.196 There, the Supreme Court

dealt with a state beachfront management act aimed in large part at protecting the beach/dune

system along the state’s coast. Toward that end, the act sought to “discourage[e] new construction

192

Fisher v. Town of Nags Head, 725 S.E.2d 99 (N.C. Ct. App.), appeal denied, 731 S.E.2d 166 (N.C. 2012).

The opening paragraphs of this section draw their inspiration from Coastal Retreat Measures, supra note 149.

194

Thus far, reactive retreat appears to be the more common, but the pattern may be shifting. For example, the Oregon

Coastal Management Program has recommended “using land-use planning processes to address climate change.”

Oregon Coastal Management Program, Department of Land Conservation and Development, Climate Ready

Communities: A Strategy for Adapting to the Impacts of Climate Change on the Oregon Coast at 5 (January 2009). See

generally Anne Siders, MANAGED COASTAL RETREAT: A LEGAL HANDBOOK ON SHIFTING DEVELOPMENT AWAY FROM

VULNERABLE AREAS (Columbia Law School Center for Climate Change Law, October, 2013).

195

As the text notes, in contrast with regulatory prohibitions the mere removal of government development incentives

is unlikely to be held a taking. See, e.g., Texas Landowners Rights Ass’n v, Harris, 453 F. Supp. 1025 (D.D.C. 1978),

aff’d mem., 598 F.2d 311 (D.C. Cir. 1979), in connection with the National Flood Insurance Program. Another

incentive-removing federal statute, the Coastal Barrier Resources Act, ended federal support (such as federal mortgage

guarantees and federal flood insurance) for development on certain barrier islands. 16 U.S.C. §§ 3501-3510. It has

generated no reported takings decisions.

196

505 U.S. 1003 (1992).

193

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in close proximity to the beach/dune system and encourag[e] those who have erected structures

too close to the system to retreat from it.”197 In particular, the plaintiff was barred from building

any occupiable structure on his two beachfront lots. The Court pointedly rejected the state’s

assertion that the statute, by asserting avoidance of a public harm as its purpose, was immunized

from takings liability. Only state action based on “background principles of the State’s law of

property and nuisance” was so protected,198 said the Court, holding that the beachfront

management act did not fall into that category. Traditional common law, it observed, rarely

supports prohibiting the erection of a house.199

Lucas suggests that the possibility that a tract of land will be submerged in the future as the result

of climate change may not be sufficient to deflect takings or other legal challenges against a

development prohibition on that tract—at least when, as in Lucas, the prohibition eliminates all

land value. In Lucas, not even the fact that plaintiff’s lots had been submerged at various times in

the previous 40 years was enough to shield the state from takings liability. And while public trust

doctrine has been held to be a “background principle” immunizing the state,200 there is no support

for any extension of public trust doctrine, as a defense to takings claims, to lands not below the

mean high water mark when the development prohibition is imposed. Arguably, however, the

question remains open.201

The Lucas decision, rendered in 1992, did not consider climate change. And because Lucas dealt

with a “total taking”—that is, a regulatory restriction eliminating all use and value in a tract of

land—it did not deal with takings law factors confined to less-than-total elimination of use and

value. One such factor is the extent to which the government action interfered with the

landowner’s “reasonable investment-backed expectations” (RIBEs). The RIBEs question here

revolves around recent or future purchasers of land prone to climate-change-induced extreme

weather, such as flooding. Can such purchasers be charged with constructive knowledge of the

scientific consensus that climate change will bring about more frequent instances of extreme

weather in the future? Can such purchasers, as a result, be held “on notice” that state or local

governments might restrict development of such parcels in the future, weakening any claim that

such restrictions interfere with reasonable expectations of development when the land was

acquired? Would the existence of a widely publicized government retreat proposal at the time

when the land was acquired strengthen an on-notice/absence-of-RIBEs argument by the

government? And could states bolster this defense by requiring that all purchasers of disasterprone land be given written notice prior to purchase of the risks to which they were exposing

themselves?202 Even today, “[s]everal [state] disclosure statutes require inclusion of whether the

197

Id. at 1021 n.10.

Id. at 1029.

199

Id. at 1031.

200

See, e.g., McQueen v. South Carolina Coastal Council, 580 S.E.2d 116, 119 n.5 (S.C. 2003).

201

See F. Patrick Hubbard, The Impact of Lucas on Coastal Development: Background Principles, the Public Trust

Doctrine and Global Warming, 16 Southeastern Envtl. L. J. 65, 80 (2007).

202

One commentator would answer yes to both the footnoted text question, involving written notice, and the

immediately preceding text questions, involving only constructive knowledge. He argues that “increasing awareness of

[sea level rise] and its impacts as well as distribution of such information should inform analysis of coastal owners’

RIBE in legal claims that government regulation or action has taken private property.” Thomas Ruppert, Reasonable

Investment-Backed Expectations: Should Notice of Rising Seas Lead to Falling Expectations for Coastal Property

Purchasers?, 26 J. Land Use & Envtl. L. 239 (2011). Proposals to require landowners in designated areas to inform

buyers of potential sea level rise are being considered in several states.

198

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property has been affected by floods or is in a flood zone or plain.”203 The extremely thin case law

on whether such notice undercuts a taking claim based on development restrictions points to

notice not making much difference.204 But it is far too early to regard the matter as settled.

One commentator has raised the argument that coastal states would be in a better position to

defend takings claims if they cast managed-retreat land use regulation as public health measures,

based on the effects of sea level rise and more severe coastal storms.205 Such public health effects

might result from salt-water intrusion into drinking water supplies, power outages, and

stormwaters contaminated by overflowed refineries and chemical plants, dry cleaners, service

stations, flooded vehicles, and sewage. Takings law has traditionally resisted finding takings

based on governmental public health measures.

The question has also been raised whether local jurisdictions might be successfully sued in the

opposite situation—that is, where they fail to restrict development despite having knowledge that

flooding may occur, following which the permitted development is damaged by flooding or

exacerbates flooding on other properties.206

Further inland, the National Flood Insurance Program (NFIP) becomes a central player in

discouraging construction in flood-prone areas207—floods that in some instances may become

more severe or frequent as the result of climate change-related sea level rise or extreme rainfall. A

local jurisdiction’s participation in the NFIP is voluntary. It is embodied in an agreement under

which the community adopts floodplain management ordinances meeting minimum NFIP

requirements for regulating new-construction design in “special flood hazard areas,”208 and use

restrictions in the regulatory floodway. In return, the federal government makes subsidized

federal flood insurance available to landowners in those jurisdictions.

Courts have unanimously rejected takings suits based on NFIP-inspired floodplain ordinances, or

similar non-NFIP floodplain ordinances.209 Should future sea level rise lead to stricter federal

conditions for flood insurance in the form of stricter floodplain ordinances, takings issues

inevitably will rear their head once more. A recent change in the law, directing the NFIP to

consider future sea level rise and not just historical flood data in creating floodplain maps, could

provide additional basis for such stricter requirements.210 One can expect, however, that the

203

Id. at 260, citing as an example Cal. Civ. Code § 1103(v)(1)(A).

Id. at 266-267.

205

Robin K. Craig, Of Sea Level Rise and Superstorms: The Public Health Police Power as a Means of Defending

Against “Takings” Challenges to Coastal Regulation, course materials submitted at the 16th Annual Conference on

Litigating Takings Challenges to Land Use and Environmental Regulations (NYU School of Law Nov. 22, 2013) (on

file with author).

206

See generally James Wilkins, Is Sea Level Rise “Foreseeable”? Does It Matter?, 26 Vt. J. Envtl L. 437 (2011).

207

42 U.S.C. §§ 4001-4128.

208

Special flood hazard areas are mapped by the Federal Emergency Management Agency, which administers the NFIP

generally. 44 C.F.R. § 59.2(b).

209

See, e.g., Adolph v. Federal Emergency Management Agency, 854 F.2d 732 (5th Cir. 1988); Gove v. Zoning Bd. Of

Appeals, 831 N.E.2d 865, 871-875 (Mass. 2005); Responsible Citizens in Opposition to Floodplain Ordinance v. City

of Asheville, 302 S.E.2d 204 (N.C. 1983). But see McDougal v. County of Imperial, 942 F.2d 668 (9th Cir. 1991) (fact

that government’s purpose in floodway designation was legitimate does not automatically preclude regulatory takings

claim).

210

P.L. 112-141, Div. F, tit. II, subtit. A (Biggert-Waters Flood Insurance Reform Act of 2012) §§ 100215(d)(1),

100216(b)(3)(D).

204

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current judicial refusal to impute to the United States any takings liability for such local

ordinances will continue to stand as long as their adoption remains voluntary.211

Finally, local jurisdictions have asked whether their potential disinvestment in public

infrastructure in low-lying areas (such as armoring, roads and bridges, and wastewater treatment

plants) might raise takings issues.212 The aim of such disinvestment would be to hold down repair

and restoration costs as the result of floods and sea level rise, and to discourage new development

in such areas or promote removal of existing development. Affected property owners, however,

may not be so civic-minded. For example, a state’s decision to discontinue maintenance of a

shoreside road that is eroding away might lead those dependent on that road for access to their

land to assert a taking by denial of access.213 The viability of such takings claims will vary widely

with the facts. No reported takings decisions at all exist in response to the federal government’s

disinvestment in the development of coastal barrier islands through the Coastal Barrier Resources

Act.214 On the other hand, disinvestment in public infrastructure may be dicier if the courts

perceive a state or local government duty to maintain existing infrastructure.215 Presumably,

takings problems can be lessened by announcing disinvestment many years (even a decade or

more) in advance; such “amortization periods” have been effective in other factual contexts, such

as billboard removal programs, in deflecting takings claims.216 Governments might also take care

not to allow disinvestment in an area to get too far ahead of the retreat activity of those living and

working there.

211

Adolph, 854 F.2d 732 (holding that Federal Emergency Management Agency cannot be sued for taking based on

parish’s adoption of floodplain regulations to qualify for NFIP, because adoption was not federally coerced).

212

This paragraph discussing disinvestment in public infrastructure was inspired by David Lewis, Constitutional

Property Law Analysis of State and Local Government Disinvestment in Infrastructure as a Coastal Adaptation

Strategy (2012) (student paper on file with author). See also Travis M. Brennan, Redefining the American Coastline:

Can the Government Withdraw Basic Services From the Coast and Avoid Takings Claims?, 14 Ocean & Coastal L. J.

101 (2008).

213

See, e.g., Jordan v. St. Johns County, 63 So. 3d 835 (Fla. App.), rev. denied, 77 So. 3d 647 (Fla. 2011); Jordan v.

Canton, 265 A.2d 96 (Me. 1970).

214

16 U.S.C. §§ 3501-3510.

215

See, e.g., St. Johns County, 63 So. 3d 835 (argument that county has so failed in its duty to maintain road as to

deprive property owner of access states taking claim; government inaction in the face of an affirmative duty to act can

support taking claim). Compare Bailey v. Preserve Rural Roads of Madison County, Inc., 394 S.W.3d 350 (Ky. 2011)

(noting that if a road closing deprives an owner of reasonable access to his land, “he is entitled to damages,” but

nonetheless finding no authority that county’s refusal to maintain road in good repair is an unconstitutional

infringement of a landowner’s right of access). See generally William B. Stoebuck, The Property Right of Access

Versus the Power of Eminent Domain, 47 Texas L. Rev. 733 (1969).

216

“Amortization programs dovetail nicely with the traditional notion of land-use planning that nonconforming uses

should be phased out gradually rather than terminated immediately.” R. Meltz, D.H. Merriam, and R.M. Frank, THE

TAKINGS ISSUE 433 (Island Press 1999). The value of an amortization period for avoiding takings is well-established.

See, e.g., Naegele Outdoor Advertising Co. v. City of Durham, 844 F.2d 172, 177 (4th Cir. 1988).

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VII. Responding To and Rebuilding

After Natural Disasters

A. Responding

Legal questions inevitably arise as to whether public and private actions taken in an emergency,

climate-change-related or otherwise, are subject to the same legal requirements as when there is

no emergency. And, for that matter, what constitutes an emergency—a term generally left

undefined in statutes. There is no explicit, across-the-board exemption in any federal

environmental statute for emergency response.

A sampler of less-than-across-the-board statutory provisions reflecting the need for relaxed

regulation in emergencies might include, first, the Clean Air Act. Under this act, EPA “may

temporarily waive a control or prohibition respecting the use of a fuel or fuel additive” where

“extreme and unusual” fuel supply circumstances exist as the result of a “natural disaster” not

reasonably foreseeable.217 Under the Comprehensive Environmental Response, Compensation,

and Liability Act (CERCLA), government emergency response to releases or threatened releases

of hazardous substances (“removal actions”), as when a flood jeopardizes containment of

hazardous chemicals at a site, can be done with less prior study and investigation than is required

for permanent cleanups (“remedial actions”).218 And Council on Environmental Quality

regulations implementing the National Environmental Policy Act (NEPA) say that where

emergency circumstances require a federal agency to take action without observing the

regulations, the agency should consult with the Council about “alternative arrangements.”219

Federal actions not needed to control the immediate impacts of the emergency, however, remain

fully subject to NEPA review.

In addition to the above statutory provisions, federal agencies have invoked their inherent

enforcement discretion to issue assurances that due to special circumstances, a regulatory

requirement will not be enforced for a brief period in the affected area.220

B. Rebuilding

Following a natural calamity in which structures are destroyed, several legal questions may arise

as to rebuilding (or substantially repairing). The first is whether there are restrictions or outright

prohibitions on rebuilding dictated by a desire to minimize damage in the future. Such adaptation

217

Clean Air Act § 211(c)(4)(C)(ii); 42 U.S.C. § 7545(c)(4)(C)(ii). EPA has issued such fuel waivers frequently, as

after Hurricanes Katrina and Sandy. See http://epa.gov/enforcement/air/fuel-waivers.html.

218

CERCLA § 101(23), 42 U.S.C. § 9601(23) (definition of “removal”); CERCLA § 101(24), 42 U.S.C. § 9601(24)

(definition of “removal action”).

219

40 C.F.R. § 1506.11. See also the NEPA regulations of the Corps of Engineers, which call on that agency, in

responding to emergencies, to refer actions with potentially significant environmental impacts to the CEQ as to NEPA

arrangements “[w]hen possible.” 33 C.F.R. § 230.8.

220

Invoking this enforcement discretion after Hurricane Sandy, for example, EPA issued a No Action Assurance letter

saying that from November 2 to 17, 2012, it would not pursue violations of Clean Air Act vapor recovery requirements

for fuel loading and unloading at certain facilities in Massachusetts, Maryland, New Jersey, and New York. Available

at http://epa.gov/enforcement/air/documents/policies/mobile/naa-vaporrecoverymamd110512.pdf.

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concerns were treated in Section VI.B. Another question, our topic here, is whether the rebuilding

of a structure essentially as it was before, in the very same location, is subject to the full range of

environmental requirements applicable if the structure were being built there for the first time.

Here, besides the question of what constitutes an emergency, there is the added issue whether the

replacement structure is essentially the same as its predecessor (changes are always made to some

degree). As with responding to emergencies (previous section), there appears to be no explicit,

across-the-board exemption in federal environmental law.

Probably the broadest exemption in federal statutes for rebuilding structures is that in the Stafford

Disaster Relief Act. The act decrees that no environmental impact statement (EIS) under NEPA is

required for “[a]n action which is taken or assistance which is provided pursuant to [the Act],

which has the effect of restoring a facility substantially to its condition prior to the disaster or

emergency.”221 Also as to NEPA, Department of Transportation regulations allow for categorical

exclusions from EIS preparation for reconstruction (whether prompted by a disaster or not) of

highways, bridges, and rail and bus facilities.222 Limited NEPA case law on the replacement issue

indicates that federal involvement in the construction of an essentially similar replacement facility

does not require an EIS—as long as the environment with the original facility is accepted as the

status quo baseline.223 This qualifier suggests that the passage of several years before the new

facility is built, accompanied by a change in the environment at the site, might cause the changed

environment to be viewed as the baseline. With the changed environment as the baseline, the

federal action might be seen as having significant impact, triggering the EIS requirement.

Outside of NEPA, the Clean Water Act affords an exemption from its requirement of permits for

the discharge of dredged or fill material “for the purpose of emergency reconstruction … of

currently serviceable structures such as dikes, dams, levees, … and transportation structures.”224

Also, three nationwide permits issued by the Corps of Engineers under this permit program cover

reconstruction in varying degrees, relieving the applicant of the more expensive and timeconsuming process of applying for an individual permit.225

Other questions arise when localities seek to use federal disaster relief funds to rebuild more

resiliently than before. Following Hurricane Irene, for example, Vermont asked FEMA for

reimbursement under the Stafford Act for upgraded culverts designed to handle more water. The

problem was not their larger-than-before size, since FEMA regulations allow funding of

replacement facilities different from the pre-existing design if the applicable codes when the

disaster strikes dictate a change in facility design.226 Reportedly, however, FEMA initially denied

reimbursement on the ground that the state’s standards for rebuilding culverts gave the state

221

42 U.S.C. § 5159.

23 C.F.R. § 771.117(d).

223

Sierra Club v. Hassell, 636 F.2d 1095, 1099 (5th Cir. 1981) (replacement of bridge destroyed by hurricane requires

no EIS). Accord, Citizens for the Scenic Severn River Bridge, Inc. v. Skinner, 802 F. Supp. 1325, 1333 (D. Md. 1991).

224

33 U.S.C. § 1344(f)(1)(B).

225

See Nationwide Permit No. 3 (repair, rehabilitation, or replacement of any previously authorized, currently

serviceable structure), No. 31 (maintenance of existing flood control facilities), and No. 45 (restoration of upland areas

damaged by storms, floods, or other discrete events, including bank stabilization). 77 Fed. Reg. 10,270 (February 21,

2012).

226

40 C.F.R. § 206.226(d)(1)-(5).

222

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enough discretion that FEMA was not assured the standards met its requirement that they apply

“uniformly to all similar types of facilities.... ”227

VIII. Immigration and Refugee Law228

United Nations High Commissioner for Refugees Antonio Guterres has said: “Climate change is

today one of the main drivers of forced displacement, both directly through impact on

environment—not allowing people to live any more in the areas where they were traditionally

living—and as a trigger of extreme poverty and conflict.”229 Climate-related migrants, however,

are not considered a “protected class” of people in international law or U.S. immigration law, nor

is there a specific legal framework or entity responsible for their displacement.

In international law, the foundational document is the 1951 Convention Relating to the Status of

Refugees, which defines “refugee” as a person who “owing to a well-founded fear of being

persecuted for reasons of race, religion, nationality, membership of a particular social group, or

political opinion, is outside the country of his nationality.”230 This definition is unlikely to

embrace climate change refugees since they do not suffer “persecution,” and certainly not for the

stated reasons.231 In addition, it is widely held that for the foreseeable future, most people

displaced by climate change will stay within their own countries, and thus fall outside the

definition of refugee because not “outside the country of [their] nationality.”232

Similarly, the United States has long held to the principle that it will not return a foreign national

to a country where his life or freedom would be threatened, but this principle does not encompass

economic or environmental migrants. The Immigration and Nationality Act (INA) requires

foreign nationals seeking asylum or refugee status to demonstrate a well-founded fear that, if

returned home, they will be persecuted based upon the five characteristics listed in the

Convention (above).233 Provisions also exist in the INA to offer temporary protected status or

227

40 C.F.R. § 206.226(d)(4). See Justin B. Clancy and Jessica Grannis, Lessons Learned from Irene: Climate Change,

Federal Disaster Relief, and Barriers to Adaptive Reconstruction (Georgetown Climate Center December 2013).

228

This section of the report was written by (name redacted) , Specialist in Immigration Policy, CRS Domestic Social

Policy Division. See generally Jane McAdam, CLIMATE CHANGE, FORCED MIGRATION, AND INTERNATIONAL LAW

(2012); Etienne Piguet et al. (eds.), MIGRATION AND CLIMATE CHANGE (2011).

229

“Conflicts Fuelled by Climate Change Causing New Refugee Crisis, Warns UN,” by Julian Borger, The Guardian,

(June 17, 2008), available online at http://www.guardian.co.uk/environment/2008/jun/17/climatechange.food. See also

United Nations High Commissioner on Refugees, THE STATE OF THE WORLD’S REFUGEES 2012: IN SEARCH OF

SOLIDARITY ch. 7 (“Displacement, Climate Change, and Natural Disasters”), summary available at

http://www.unhcr.org/publications/unhcr/sowr2012.

230

The United States is not a party to the 1951 Convention but is a party to the 1967 Protocol Relating to the Status of

Refugees, which amends the Convention. 19 U.S. Treaties 6223.

231

See, e.g., CLIMATE CHANGE, FORCED MIGRATION, AND INTERNATIONAL LAW, supra note 228, at 42-48 (2012). The

text view—non-inclusion of those displaced by climate change as “refugees”—is the view of the vast majority of

observers. Recently reported is a New Zealand court’s rejection of an argument by a Kirabatian man that he should not

be deported after his visa expired because climate change was making his home country uninhabitable. The court, again

reportedly, found no evidence that the man would be “persecuted” within the meaning of the 1951 convention. Sean

McLemon, Climate Refugees Could Catch World’s Courts Off Guard (Law 360 December 16, 2013). Going against the

prevailing view, however, is Jessica B. Cooper, Environmental Refugees: Meeting the Requirements of the Refugee

Definition, 6 N.Y.U. Envtl. L. J. 480, 501-528 (1998).

232

MIGRATION AND CLIMATE CHANGE, supra note 228, at 289.

233

See definition of “refugee” in INA section 101(a)(42); 8 U.S.C. § 1101(a)(42). This definition governs the reach of

(continued...)

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Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future

relief from removal when natural disasters occur or when violence and civil unrest erupt in spots

around the world. While temporary protected status may benefit people stranded in the United

States because of natural disasters, it is only short-term relief from removal.234

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

(...continued)

INA section 207, 8 U.S.C. § 1157, governing admissions based on humanitarian concerns, and INA section 208, 8

U.S.C. § 1158, governing asylum.

234

For further background, see CRS Report RL31269, Refugee Admissions and Resettlement Policy, by (name re

dacted); CRS Report R41753,Asylum and “Credible Fear” Issues in U.S. Immigration Policy, by (name redacted);

and CRS Report RS20844, Temporary Protected Status: Current Immigration Policy and Issues, by (name redacted)

and (name redacted).

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