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Takings Decisions of the U.S. Supreme Court: A Chronology [July 20, 2015]
"This report is a reverse chronological listing of U.S. Supreme Court decisions addressing claims that a government entity has 'taken' private property, as that term is used in the Takings Clause of the Fifth Amendment. The Takings Clause states: '[N]or shall private property be taken for public use, without just compensation.' A scattering of related, substantive due process decisions is also included. Under the Takings Clause, courts allow two distinct types of suit. 'Condemnation' (also 'formal condemnation') occurs when a government or private entity formally invokes its power of eminent domain by filing suit to take a specified property, upon payment to the owner of just compensation. By contrast, a 'taking action' is a suit by a property holder against the government, claiming that government conduct has effectively taken the property notwithstanding that the government has not filed a formal condemnation suit. Because it is the procedural reverse of a condemnation action, a taking action is often called an 'inverse condemnation' action. A typical taking action complains of severe regulation of land use, though the Takings Clause reaches all species of property, real and personal, tangible and intangible. The taking action generally demands that the government compensate the property owner, just as when government formally exercises eminent domain. Finding the line between government interferences with property that are takings and those that are not has occupied the Supreme Court in most of the 100-plus decisions compiled here. The Supreme Court's decisions in these takings actions reach back to 1870, and are divided in this report into three periods."
Library of Congress. Congressional Research Service
Meltz, Robert
2015-07-20
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Wetlands Coverage of the Clean Water Act (CWA): 'Rapanos' and Beyond [September 3, 2014]
From the report summary: "In 1985 and 2001, the Supreme Court grappled with issues as to the geographic scope of the wetlands permitting program in the federal Clean Water Act (CWA). In 2006, the Supreme Court rendered a third decision, 'Rapanos v. United States', on appeal from two Sixth Circuit rulings. The Sixth Circuit rulings offered the Court a chance to clarify the reach of CWA jurisdiction over wetlands adjacent only to 'non'navigable tributaries of traditional navigable waters--including tributaries such as drainage ditches and canals that may flow intermittently. (Jurisdiction over wetlands adjacent to traditional navigable waters was established in the 1985 decision.) [...] While regulators and the regulated community debate the legal dimensions of federal jurisdiction under the CWA, scientists contend that there are no discrete, scientifically supportable boundaries or criteria along the continuum of wetlands to separate them into meaningful ecological or hydrological compartments. Wetland scientists believe that all such waters are critical for protecting the integrity of waters, habitat, and wildlife downstream. Changes in the limits of federal jurisdiction highlight the role of states in protecting waters not addressed by federal law. From the states' perspective, federal programs provide a baseline for consistent, minimum standards to regulate wetlands and other waters. Most states are either reluctant or unable to take independent steps to protect non-jurisdictional waters through legislative or administrative action."
Library of Congress. Congressional Research Service
Meltz, Robert; Copeland, Claudia
2014-09-03
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Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future [August 20, 2014]
"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."
Library of Congress. Congressional Research Service
Meltz, Robert
2014-08-20
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EPA's Proposed Greenhouse Gas Regulations for Existing Power Plants: Frequently Asked Questions [July 3, 2014]
"Taking action to address climate change by reducing U.S. emissions of greenhouse gases (GHGs) is among President Obama's major goals. At an international conference in Copenhagen in 2009, he committed the United States to reducing emissions of greenhouse gases 17% by 2020, as compared to 2005 levels. At the time, 85 other nations also committed to reductions. Since U.S. GHG emissions peaked in 2007, a variety of factors--some economic, some the effect of government policies at all levels--have brought the United States more than halfway to reaching the 2020 goal. Getting the rest of the way would likely depend, to some degree, on continued GHG emission reductions from electric power plants, which are the largest source of U.S. emissions. In June 2013, the President released a Climate Action Plan that addressed this and other climate issues. At the same time, he directed the Environmental Protection Agency (EPA) to propose standards for 'carbon pollution' (i.e., carbon dioxide, the principal GHG) from existing power plants by June 2014 and to finalize them in June 2015. Under the President's timetable, by June 2016, states would be required to submit to EPA plans to implement the standards. On June 2, 2014, EPA responded to the first of these directives by releasing the proposed standards."
Library of Congress. Congressional Research Service
McCarthy, James E.; Meltz, Robert; Leggett, Jane A. . . .
2014-07-03
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EPA's Proposed Greenhouse Gas Regulations for Existing Power Plants: Frequently Asked Questions [June 9, 2014]
"Taking action to address climate change by reducing U.S. emissions of greenhouse gases (GHGs) is among President Obama's major goals. At an international conference in Copenhagen in 2009, he committed the United States to reducing emissions of greenhouse gases 17% by 2020, as compared to 2005 levels. At the time, 85 other nations also committed to reductions. […] In June 2013, the President released a Climate Action Plan that addressed this and other climate issues. At the same time, he directed the Environmental Protection Agency (EPA) to propose standards for 'carbon pollution' (i.e., carbon dioxide, the principal GHG) from existing power plants by June of this year and to finalize them in June 2015. Under the President's timetable, by June 2016, states would be required to submit to EPA plans to implement the standards. […] This report summarizes EPA's proposal and answers many of these questions. In addition to discussing details of the proposed rule, the report addresses a number of questions regarding the reasons EPA is proposing this rule; EPA's authority under Section 111 of the CAA [Clean Air Act]; EPA's previous experience using that authority; the steps the agency must take to finalize the proposed rule; and other background questions."
Library of Congress. Congressional Research Service
McCarthy, James E.; Meltz, Robert; Leggett, Jane A. . . .
2014-06-09
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Wetlands Coverage of the Clean Water Act (CWA): 'Rapanos' and Beyond [April 22, 2014]
From the report: "In 2006, the Supreme Court decided 'Rapanos v. United States', the most recent and well-known of three Supreme Court decisions wrestling with the question of which wetlands are covered by the wetlands permitting program in the Clean Water Act (CWA). Since then, numerous decisions from the lower federal courts have sought to divine what criteria to draw from the fractured opinions in 'Rapanos' as to which wetlands are 'jurisdictional' (within the CWA's reach), and which are not. At the same time, the agencies charged with administering the wetlands permitting program, the U.S. Army Corps of Engineers and Environmental Protection Agency (EPA), issued several guidance documents seeking to explain their view of their jurisdiction post-'Rapanos', and in March 2014 these agencies announced proposed revisions to regulations that define 'waters of the United States' for purposes of determining CWA jurisdictional waters. This report provides background including the pre-'Rapanos' Supreme Court opinions, then moves on to Rapanos itself and the Corps/EPA guidance documents. The March 2014 proposed rule is discussed in a separate CRS [Congressional Research Service] report (CRS Report R43455, 'EPA and the Army Corps' Proposed Rule to Define 'Waters of the United States'')."
Library of Congress. Congressional Research Service
Meltz, Robert; Copeland, Claudia
2014-04-22
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Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future [March 10, 2014]
"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. The reader interested in proposals for new laws to deal with climate change is referred to other works. 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. Inclusion of some legal issues was based further on the predominant scientific view that human activities are contributing to climate change. 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."
Library of Congress. Congressional Research Service
Meltz, Robert
2014-03-10
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Federal Agency Actions Following the Supreme Court's Climate Change Decision in 'Massachusetts v. EPA': A Chronology [January 9, 2014]
"On April 2, 2007, the Supreme Court rendered one of its most important environmental decisions. In 'Massachusetts v. EPA', the Court held 5-4 that greenhouse gases (GHGs), widely viewed as contributing to climate change, constitute 'air pollutants' as that phrase is used in the Clean Air Act (CAA). As a result, said the Court, the U.S. Environmental Protection Agency (EPA) had improperly denied a petition seeking CAA regulation of GHG emissions from new motor vehicles by saying the agency lacked authority over such emissions. This report offers a chronology of major federal agency actions, mainly by EPA, that involve GHGs or climate change and that occurred after 'Massachusetts v. EPA'. Most of the listed actions trace directly or indirectly back to the decision. Examples include EPA's 'endangerment finding' for GHG emissions from new motor vehicles; the agency's standards for GHG emissions from new motor vehicles; its interpretation of 'pollutants subject to regulation,' the CAA trigger for requiring best available control technology (BACT) for such pollutants in 'prevention of significant deterioration' areas; its guidance for determining BACT for GHG emissions; the 'tailoring rule' (limiting the stationary sources that initially will have to install BACT and obtain CAA Title V permits based on their GHG emissions); and settlements of litigation seeking to compel new source performance standards for GHG emissions from electric power plants and petroleum refineries. A few agency actions were included solely because of their relevance to climate change and their post-'Massachusetts' occurrence--for example, EPA's responses to California's request for a waiver of CAA preemption allowing that state to set its own limits for GHG emissions from new motor vehicles, and EPA's monitoring rule for GHG emissions."
Library of Congress. Congressional Research Service
Meltz, Robert
2014-01-09
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Takings Decisions of the U.S. Supreme Court: A Chronology [December 9, 2013]
"This report is a reverse chronological listing of U.S. Supreme Court decisions addressing claims that a government entity has 'taken' private property, as that term is used in the Takings Clause of the Fifth Amendment. The Takings Clause states: '[N]or shall private property be taken for public use, without just compensation.' A scattering of related, substantive due process decisions is also included. Under the Takings Clause, courts allow two distinct types of suit. 'Condemnation' (also 'formal condemnation') occurs when a government or private entity formally invokes its power of eminent domain by filing suit to take a specified property, upon payment to the owner of just compensation. By contrast, a 'taking action' (also 'inverse condemnation')--our topic here--is the procedural reverse. It is a suit by a property holder against the government, claiming that government conduct has effectively taken the property notwithstanding that the government has not filed a formal condemnation suit. A typical taking action complains of severe regulation of land use, though the Takings Clause reaches all species of property, real and personal, tangible and intangible. The taking action generally demands that the government compensate the property owner, just as when government formally exercises eminent domain. Finding the line between government interferences with property that are takings and those that are not has occupied the Supreme Court in most of the 100-plus decisions compiled here. The Supreme Court's decisions in these takings actions reach back to 1870, and are divided in this report into three periods."
Library of Congress. Congressional Research Service
Meltz, Robert
2013-12-09
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Federal Agency Actions Following the Supreme Court's Climate Change Decision in 'Massachusetts v. EPA': A Chronology [August 29, 2013]
"On April 2, 2007, the Supreme Court rendered one of its most important environmental decisions. In Massachusetts v. EPA , the Court held 5-4 that greenhouse gases (GHGs), widely viewed as contributing to climate change, constitute 'air pollutants' as that phrase is used in the Clean Air Act (CAA). As a result, said the Court, the U.S. Environmental Protection Agency (EPA) had improperly denied a petition seeking CAA regulation of GHG emissions from new motor vehicles by saying the agency lacked authority over such emissions. This report offers a chronology of major federal agency actions, mainly by EPA, that involve GHGs or climate change and that occurred in the wake of Massachusetts v. EPA. Most of the listed actions trace directly or indirectly back to the decision. Examples include EPA's 'endangerment finding' for GHG emissions from new motor vehicles; the agency's standards for GHG emissions from new motor vehicles; its interpretation of 'pollutants subject to regulation,' the CAA trigger for requiring best available control technology (BACT) for such pollutants in 'prevention of significant deterioration' areas; its guidance for determining BACT for GHG emissions; the 'tailoring rule' (limiting the stationary sources that initially will have to install BACT and obtain CAA Title V permits based on their GHG emissions); and settlements of litigation seeking to compel new source performance standards (NSPSs) for GHG emissions from electric power plants and petroleum refineries. A few agency actions were included solely because of their relevance to climate change and their post- Massachusetts occurrence--for example, EPA's responses to California's request for a waiver of CAA preemption allowing that state to set its own limits for GHG emissions from new motor vehicles, and EPA's monitoring rule for GHG emissions."
Library of Congress. Congressional Research Service
Meltz, Robert
2013-08-29
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Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future [August 28, 2013]
"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. The reader interested in proposals for 'new' laws to deal with climate change is referred to other works. 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. Inclusion of some legal issues was based further on the predominant scientific view that human activities are contributing to climate change. 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."
Library of Congress. Congressional Research Service
Meltz, Robert
2013-08-28
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2010 'Deepwater Horizon' Oil Spill: Natural Resource Damage Assessment Under the Oil Pollution Act [July 24, 2013]
"The 2010 'Deepwater Horizon' oil spill leaked an estimated 4.1 million barrels of oil into the Gulf of Mexico, damaging the waters, shores, and marshes, and the fish and wildlife that live there. The Oil Pollution Act (OPA) allows state, federal, tribal, and federal governments to recover damages to natural resources in the public trust from the parties responsible for the oil spill. Under the public trust doctrine, natural resources are managed by the states for the benefit of all citizens, except where a statute vests such management in the federal government. In particular, OPA authorizes Trustees (representatives of federal, state, and local government entities with jurisdiction over the natural resources in question) to assess the damages to natural resources resulting from a spill, and to develop a plan for the restoration, rehabilitation, replacement or acquisition of the equivalent, of the natural resources. The types of damages that are recoverable include the cost of replacing or restoring the lost resource, the lost value of those resources if or until they are recovered, and any costs incurred in assessing the harm. OPA caps liability for offshore drilling units at $75 million for economic damages, but does not limit liability for the costs of containing and removing the oil."
Library of Congress. Congressional Research Service
Vann, Adam; Meltz, Robert
2013-07-24
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Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future [March 25, 2013]
"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--that is, 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 [Environmental protection Agency] to regulate GHG emissions. EPA's subsequent efforts to carry out that authority have been sustained by the D.C. Circuit. Another issue is whether EPA's 'endangerment finding' for GHG emissions from new motor vehicles will compel EPA to move against GHG emissions from other sources, and, if EPA does, whether the CAA authorizes cap- and- trade programs. 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) liability and other questions raised by carbon capture and sequestration; (4) constitutional constraints on land use regulation and state actions to control GHG emissions; and (5) whether the public trust doctrine applies to the atmosphere."
Library of Congress. Congressional Research Service
Meltz, Robert
2013-03-25
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Endangered Species Act (ESA) in the 113th Congress: New and Recurring Issues [February 1, 2013]
"Increasing numbers of animal and plant species face possible extinction. Endangered and threatened species--and the law that protects them, the 1973 Endangered Species Act (ESA, P.L. 93-205, as amended; 16 U.S.C. §§1531-1543)--are controversial, in part, because dwindling species are often harbingers of resource scarcity. The most common cause of species' decline is habitat loss or alteration. Habitat loss occurs due to development, climate change, changes in land management practices, competition from invasive species, and other factors, nearly all related to economic, political, or social interests. ESA has been among the most contentious environmental laws because its substantive provisions can affect the use of both federal and nonfederal lands and resources. Congress faces the issue of how to balance these interests with the protection of endangered and threatened species and, as stated in ESA, 'the ecosystems upon which endangered species and threatened species depend.' Because of strong support and strong opposition, ESA has not been reauthorized since the last authorization expired in 1992. In the 109th Congress, there were several unsuccessful attempts to enact comprehensive legislation that would have reauthorized ESA. Congressional efforts in the 110th, 111th, and 112th Congresses focused on addressing specific controversial features of ESA and on oversight of concerns such as the science used for making decisions and designating critical habitat, but little legislation related to ESA was enacted."
Library of Congress. Congressional Research Service
Buck, Eugene H.; Corn, M. Lynne (Mary Lynne), 1946-; Alexander, Kristina . . .
2013-02-01
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Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future [January 3, 2013]
"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--that is, 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 [Environmental Protection Agency] to regulate GHG emissions. EPA's subsequent efforts to carry out that authority have been sustained by the D.C. Circuit. Another issue is whether EPA's 'endangerment finding' for GHG emissions from new motor vehicles will compel EPA to move against GHG emissions from other sources, and, if EPA does, whether the CAA authorizes capand- trade programs. 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) liability and other questions raised by carbon capture and sequestration; (4) constitutional constraints on land use regulation and state actions against climate change; and (5) whether the public trust doctrine applies to the atmosphere."
Library of Congress. Congressional Research Service
Meltz, Robert
2013-01-03
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Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future [November 15, 2012]
"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--that is, 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, does authorize EPA [Environmental Protection Agency] to regulate GHG emissions. Quite recently, a host of issues raised by EPA's efforts to carry out that authority were resolved in the agency's favor by the D.C. Circuit. Another issue is whether EPA's 'endangerment finding' for GHG emissions from new motor vehicles will compel EPA to move against GHG emissions under other CAA authorities. 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) liability and other questions raised by carbon capture and sequestration; (4) constitutional constraints on land use regulation and state actions against climate change; and (5) whether the public trust doctrine applies to the atmosphere."
Library of Congress. Congressional Research Service
Meltz, Robert
2012-11-15
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Constitutionality of Retroactive Tax Legislation [October 25, 2012]
"The question is frequently asked whether Congress can enact retroactive tax legislation. It can be an important one for Congress because (1) an ever-growing number of tax provisions have expiration dates and some may not always be extended in a timely manner; (2) an interest in finding new revenue can encourage making a provision retroactive in order to increase the amount raised; and (3) an intent to influence behavior by means of a tax provision can sometimes include a desire to 'penalize' past conduct. It is clear there is no absolute constitutional bar to retroactive tax legislation. Nonetheless, it is possible, albeit rare, for retroactive tax legislation that increases a taxpayer's tax liability to violate the Constitution. For example, some cases where retroactive taxes have been struck down suggest that extended periods of retroactivity and lack of notice of a wholly new tax can raise due process concerns under the Fifth Amendment. While it is often asked whether such legislation would violate another of the Fifth Amendment's provisions--the Takings Clause--it seems unlikely this would be the case. The Supreme Court has long ruled that the sovereign's taxing power and its power to take private property upon payment of just compensation are distinct. Most of the retroactivity challenges to taxes have been litigated on a substantive due process rather than takings theory. On the other hand, if a court can be convinced that what looks like a tax is, in reality, an arbitrary confiscation of property, then a taking might be found."
Library of Congress. Congressional Research Service
Thomas, Kenneth R.; Meltz, Robert; Lunder, Erika
2012-10-25
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Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future [October 25, 2012]
"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--that is, 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, does authorize EPA [Environmental Protection Agency] to regulate GHG emissions. Quite recently, a host of issues raised by EPA's efforts to carry out that authority were resolved in the agency's favor by the D.C. Circuit. Another issue is whether EPA's 'endangerment finding' for GHG emissions from new motor vehicles will compel EPA to move against GHG emissions under other CAA authorities. 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) liability and other questions raised by carbon capture and sequestration; (4) constitutional constraints on land use regulation and state actions against climate change; and (5) whether the public trust doctrine applies to the atmosphere."
Library of Congress. Congressional Research Service
Meltz, Robert
2012-10-25
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Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future [September 10, 2012]
"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--that is, reduce greenhouse gas (GHG) emissions--have spawned a host of legal issues. […] [O]ther 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) liability and other questions raised by carbon capture and sequestration; (4) constitutional constraints on land use regulation and state actions against climate change; and (5) whether the public trust doctrine applies to the atmosphere. Liability for harms allegedly caused by climate change has raised another crop of legal issues. […] 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. […] 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."
Library of Congress. Congressional Research Service
Meltz, Robert
2012-09-10
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When Congressional Legislation Interferes with Existing Contracts: Legal Issues [August 20, 2012]
"Laws enacted by Congress on occasion interfere with contracts entered into before enactment, prompting suits against the United States by disappointed contract parties. In a few of them, courts have awarded billions of dollars to the United States' contracting partners. This report surveys the legal theories invoked in such suits. Note that litigation on the grounds covered herein can be avoided entirely if the congressional enactment is construed to apply only to future contracts. Two competing interests underlie this report's topic. On the one hand, protection of settled expectations, at least to some degree, is essential to ordered society. Contract law has this goal for expectations embodied in contracts. On the other hand, government needs latitude to address new problems, so contracts generally are said to confer no immunity against future legislation. The balance struck by the case law is that while Congress legitimately can thwart performance under existing contracts, the United States may in some instances have to pay compensation."
Library of Congress. Congressional Research Service
Meltz, Robert
2012-08-20
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Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future [July 27, 2012]
"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--that is, 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, does authorize EPA to regulate GHG emissions. Quite recently, a host of issues raised by EPA's efforts to carry out that authority were resolved in the agency's favor by the D.C. Circuit. […] Other adaptation responses to climate change raising legal issues, often property rights related, are beach armoring (seawalls, bulkheads, etc.), beach re-nourishment, and '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."
Library of Congress. Congressional Research Service
Meltz, Robert
2012-07-27
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Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future [July 23, 2012]
"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--that is, 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, does authorize EPA [Environmental Protection Agency] to regulate GHG emissions. Quite recently, a host of issues raised by EPA's efforts to carry out that authority were resolved in the agency's favor by the D.C. Circuit. Another issue is whether EPA's 'endangerment finding' for GHG emissions from new motor vehicles will compel EPA to move against GHG emissions under other CAA authorities. 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) liability and other questions raised by carbon capture and sequestration; (4) constitutional constraints on land use regulation and state actions against climate change; and (5) whether the public trust doctrine applies to the atmosphere."
Library of Congress. Congressional Research Service
Meltz, Robert
2012-07-23
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Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future [July 2, 2012]
"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--that is, 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, does authorize EPA to regulate GHG emissions. Quite recently, a host of issues raised by EPA's efforts to carry out that authority were resolved in the agency's favor by the D.C. Circuit. Another issue is whether EPA's 'endangerment finding' for GHG emissions from new motor vehicles will compel EPA to move against GHG emissions under other CAA authorities. 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) liability and other questions raised by carbon capture and sequestration; (4) constitutional constraints on land use regulation and state actions against climate change; and (5) whether the public trust doctrine applies to the atmosphere."
Library of Congress. Congressional Research Service
Meltz, Robert
2012-07-02
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When Congressional Legislation Interferes with Existing Contracts: Legal Issues [May 31, 2012]
"Laws enacted by Congress on occasion interfere with contracts entered into before enactment, prompting suits against the United States by disappointed contract parties. In a few of them, courts have awarded billions of dollars to the United States' contracting partners. This report surveys the legal theories invoked in such suits. Note that litigation on the grounds covered herein can be avoided entirely if the congressional enactment is construed to apply only to 'future' contracts. Two competing interests underlie this report's topic. On the one hand, protection of settled expectations, at least to some degree, is essential to ordered society. Contract law has this goal for expectations embodied in contracts. On the other hand, government needs latitude to address new problems, so contracts generally are said to confer no immunity against future legislation. The balance struck by the case law is that while Congress legitimately can thwart performance under existing contracts, the United States may in some instances have to pay compensation. […] For private contracts, the main legal theory is the Fifth Amendment Takings Clause. Plaintiffs argue that since contract rights generally are deemed 'property' under the Takings Clause, a congressional enactment that thwarts performance under a contract in essence takes property, requiring compensation. The government's defense is often the 'Omnia' rule, a Supreme Court holding under which government actions that only incidentally interfere with performance of private contracts are deemed to constitute but a frustration, not a taking, of contract rights. Per this definition, the 'Omnia' rule does not apply when the congressional action expressly 'targets' an existing contract right, though even here the taking claim usually is rejected."
Library of Congress. Congressional Research Service
Meltz, Robert
2012-05-31
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Federal Agency Actions Following the Supreme Court's Climate Change Decision in 'Massachusetts v. EPA': A Chronology [May 2, 2012]
"On April 2, 2007, the Supreme Court rendered one of its most important environmental decisions. In 'Massachusetts v. EPA', the Court held 5-4 that greenhouse gases (GHGs), widely viewed as contributing to climate change, constitute 'air pollutants' as that phrase is used in the Clean Air Act (CAA). As a result, said the Court, the U.S. Environmental Protection Agency (EPA) had improperly denied a petition seeking CAA regulation of GHG emissions from new motor vehicles by saying the agency lacked authority over such emissions. This report offers a chronology of major federal agency actions, mainly by EPA, that involve GHGs or climate change and that occurred in the wake of 'Massachusetts v. EPA'. Most of the listed actions trace directly or indirectly back to the decision. Examples include EPA's 'endangerment finding' for GHG emissions from new motor vehicles; the agency's standards for GHG emissions from new motor vehicles; its interpretation of 'pollutants subject to regulation,' the CAA trigger for requiring best available control technology (BACT) for such pollutants in 'prevention of significant deterioration' areas; its guidance for determining BACT for GHG emissions; the 'tailoring rule' (limiting the stationary sources that initially will have to install BACT and obtain CAA Title V permits based on their GHG emissions); and settlements of litigation seeking to compel new source performance standards (NSPSs) for GHG emissions from electric power plants and petroleum refineries. A few agency actions were included solely because of their relevance to climate change and their post-'Massachusetts' occurrence-for example, EPA's responses to California's request for a waiver of CAA preemption allowing that state to set its own limits for GHG emissions from new motor vehicles, and EPA's monitoring rule for GHG emissions."
Library of Congress. Congressional Research Service
Meltz, Robert
2012-05-02
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Supreme Court Allows Pre-enforcement Review of Clean Water Act Section 404 Compliance Orders: 'Sackett v. EPA' [March 26, 2012]
"On March 21, 2012, the Supreme Court resolved a long-simmering issue of federal environmental enforcement. The issue in 'Sackett v. Environmental Protection Agency' involved the 'administrative compliance order' (ACO), frequently used by the Environmental Protection Agency (EPA) to enforce statutes it administers. The Court held that the Administrative Procedure Act makes available 'pre-enforcement review' of ACOs under Section 404 of the Clean Water Act (CWA), which establishes the federal wetlands permitting program. Recipients of Section 404 ACOs no longer have to wait, while penalties accrue, until EPA files an action to enforce the ACO before they can have jurisdictional objections to the order heard by a court."
Library of Congress. Congressional Research Service
Meltz, Robert
2012-03-26
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Federal Agency Actions Following the Supreme Court's Climate Change Decision in 'Massachusetts v. EPA': A Chronology [November 17, 2011]
"On April 2, 2007, the Supreme Court rendered one of its most important environmental decisions. In 'Massachusetts v. EPA [Environmental Protection Agency]', the Court held 5-4 that greenhouse gases (GHGs), widely viewed as contributing to climate change, constitute 'air pollutants' as that phrase is used in the Clean Air Act (CAA). As a result, said the Court, the U.S. Environmental Protection Agency (EPA) had improperly denied a petition seeking CAA regulation of GHG emissions from new motor vehicles by saying the agency lacked authority over such emissions. This report offers a chronology of major federal agency actions, mainly by EPA, that involve GHGs or climate change and that occurred in the wake of 'Massachusetts v. EPA'. Most of the listed actions trace directly or indirectly back to the decision. Examples include EPA's 'endangerment finding' for GHG emissions from new motor vehicles; the agency's standards for GHG emissions from new motor vehicles; its interpretation of 'pollutants subject to regulation,' the CAA trigger for requiring best available control technology (BACT) for such pollutants in 'prevention of significant deterioration' areas; its guidance for determining BACT for GHG emissions; the 'tailoring rule' (limiting the stationary sources that initially will have to install BACT and obtain CAA Title V permits based on their GHG emissions); and settlements of litigation seeking to compel new source performance standards (NSPSs) for GHG emissions from electric power plants and petroleum refineries. A few agency actions were included solely because of their relevance to climate change and their post-'Massachusetts' occurrence--for example, EPA's responses to California's request for a waiver of CAA preemption allowing that state to set its own limits for GHG emissions from new motor vehicles, and EPA's monitoring rule for GHG emissions."
Library of Congress. Congressional Research Service
Meltz, Robert
2011-11-17
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Federal Agency Actions Following the Supreme Court's Climate Change Decision in 'Massachusetts v. EPA': A Chronology [August 16, 2011]
"On April 2, 2007, the Supreme Court rendered one of its most important environmental decisions. In 'Massachusetts v. EPA ', the Court held 5-4 that greenhouse gases (GHGs), widely viewed as contributing to climate change, constitute 'air pollutants' as that phrase is used in the Clean Air Act (CAA). As a result, said the Court, the U.S. Environmental Protection Agency (EPA) had improperly denied a petition seeking CAA regulation of GHG emissions from new motor vehicles by saying the agency lacked authority over such emissions. This report offers a chronology of major federal agency actions, mainly by EPA, that involve GHGs or climate change and that occurred in the wake of 'Massachusetts v. EPA'. Most of the listed actions trace directly or indirectly back to the decision. Examples include EPA's 'endangerment finding' for GHG emissions from new motor vehicles; the agency's standards for GHG emissions from new motor vehicles; its interpretation of 'pollutants subject to regulation,' the CAA trigger for requiring best available control technology (BACT) for such pollutants in 'prevention of significant deterioration' areas; its guidance for determining BACT for GHG emissions; the 'tailoring rule' (limiting the stationary sources that initially will have to install BACT and obtain CAA Title V permits based on their GHG emissions); and settlements of litigation seeking to compel new source performance standards (NSPSs) for GHG emissions from electric power plants and petroleum refineries. A few agency actions were included solely because of their relevance to climate change and their post-'Massachusetts' occurrence--for example, EPA's responses to California's request for a waiver of CAA preemption allowing that state to set its own limits for GHG emissions from new motor vehicles, and EPA's monitoring rule for GHG emissions."
Library of Congress. Congressional Research Service
Meltz, Robert
2011-08-16
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Litigation Seeking to Establish Climate Change Impacts as a Common Law Nuisance [May 9, 2011]
From the Document: "Congressional inaction on climate change has led various entities to pursue climate change measures off Capitol Hill. Either in hopes of realizing substantive measures or to pressure Congress to act, such entities have looked to international forums, treaty negotiations, Environmental Protection Agency (EPA) action under the Clean Air Act, state and regional efforts, and-the topic here-common law suits, principally seeking to establish climate change impacts as a nuisance. Many argue that courts will (and should) be unreceptive to dealing with a global problem such as climate change through individual common law suits. [...] As well, nuisance law offers no clear standards to apply, asking courts, for example, to weigh vague policy factors. This is a recipe, it is argued, for inconsistent and confusing results from different courts. Questions of causation are also substantial: even if the court accepts that man-made greenhouse gas (GHG) emissions contribute to climate change, how can a plaintiff show that a particular adverse impact was caused by climate change, and further was caused by the GHG emissions of the defendants? And should the defendants' contribution to worldwide GHG emissions be viewed as de minimis--too small for a court to bother with? Questions of remedy are likely to be particularly intractable: what amount of emission reduction, or monetary compensation, should be required of a defendant given the likely miniscule fraction of worldwide GHG emissions contributed by that defendant? Finally, the law affords courts several easy ways of blocking nuisance-based climate change litigation, discussed in Part II, should courts decide it is inappropriate. At a minimum, no one argues that piecemeal litigation is preferable to a coherent legislative scheme."
Library of Congress. Congressional Research Service
Meltz, Robert
2011-05-09
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Endangered Species Act (ESA) and Claims of Property Rights 'Takings' [April 21, 2011]
"The federal Endangered Species Act (ESA) has long been one of the major flash points in the 'property rights' debate. This report outlines the ESA provisions most relevant to the act's impacts on private property and surveys the major ESA-relevant principles of Fifth Amendment takings law. The report then proceeds to summarize the court decisions on whether particular government actions (or inaction) based on the ESA 'take' private property under the Fifth Amendment. The cases to date address several kinds of ESA impacts on private property: (1) restrictions on land uses that might adversely affect species listed as endangered or threatened, and mitigation conditions to offset the impacts of development; (2) administrative delays; (3) reductions in water delivery or allowable water diversion to preserve lake levels or instream flows needed by listed fish (currently the most active area of ESA takings litigation); (4) restrictions on the defensive measures a property owner may take to protect his/her property from listed animals; and (5) restrictions on commercial dealings in listed species."
Library of Congress. Congressional Research Service
Meltz, Robert
2011-04-21
