Climate Change, Property Rights, and Conservation: Highlights from a Decade of Environmental Law (2013-2023)

• Jurisdiction: United States,Federal
• Publication year: 2023
• Citation: Vol. 3 No. 3

[Page 237]

Victoria Kline ^*

Abstract: The author discusses nine recent decisions—all but one handed down by the Supreme Court—that demonstrate the ongoing debate over responsibility for the effects of climate change, how the courts are essentially asked to strike a balance between environmental protection and economic development, the intersection of property rights and conservation, and how litigants fared with their arguments over different aspects of this important and, many would say, existential dilemma. The author concludes with an update from the United Nations Framework Convention on Climate Change and the establishment of a loss and damage fund for countries harmed by climate change.

The past decade has seen numerous legal challenges and landmark rulings in environmental law, reflecting the growing recognition of the critical importance of protecting the environment for current and future generations. From the Supreme Court's decision in Michigan v. EPA to the recent Juliana v. United States case, the judicial branch has dramatically changed the way litigation can be used to protect the interests of the earth and its inhabitants. This article aims to provide an overview of ten significant environmental law rulings from the past decade, highlighting their implications for environmental policy and the legal landscape.

[Page 238]

Environmental Protection Agency (EPA) v. EME Homer City Generation (2014)

The U.S. Supreme Court held in its 2014 6-2 opinion for EPA v. EME that the EPA is mandated by the Clean Air Act to ensure the country's states are in compliance with the Act's federal standards. ¹ The suit was filed after the EPA created the "Transport Rule," which sought to increase accountability for states whose air pollution was being carried across their borders and into other states via winds. ² Justice Ruth Bader Ginsburg, who wrote the case's majority opinion, stated that it was within the EPA's discretion to determine whether a state's implementation plan for its air pollution was insufficient, rendering it necessary for the EPA to step in and require state compliance with a federal implementation plan. ³ Thus, "the Transport Rule was necessary for the EPA to fulfill its statutory requirement to balance the possibility of under-and over-control of emissions standards." ⁴

In his dissent, Justice Scalia called the majority's opinion "undemocratic," "reach[ing] its result ('Look Ma, no hands!') without benefit of text, claiming to have identified a remarkable 'gap' in the statute, which it proceeds to fill (contrary to the plain logic of the statute) with cost-benefit analysis—and then, with no pretended textual justification at all, simply extends cost-benefit analysis beyond the scope of the alleged gap." ⁵ Despite Scalia's textualist scorns, the case gave some of the Clean Air Act power back to the EPA to hold states accountable for their pollution after it was weakened by Whitman v. American Trucking in 2001. ⁶

Michigan v. EPA (2015)

Michigan v. EPA was a 2015 Supreme Court case that involved a challenge to the EPA's lack of cost consideration in its decision to regulate electric utility steam generating units (EGUs) due to their release of mercury and other hazardous air pollutants. In a 5-4 decision, a Scalia opinion explained that by not considering costs when determining that its regulation was "appropriate and necessary," the EPA engaged in "unreasonable" decision making. ⁷

[Page 239]

The case had practical implications for the power industry, as it required power plants to think about a future where they would have to invest in more stringent pollution control technology to comply with the EPA's regulations. ⁸ From an environmental perspective, "while Michigan v. EPA is not a case directly addressing GHG [greenhouse gas] emissions, it shows the Court is hesitant to grant the EPA broad powers under the Clean Air Act to fight climate change." ⁹ The Court's hesitance to tackle issues of climate change continues to be seen today in its apprehension to grant standing to litigate in the name of global warming and hold individuals and industries liable for their contributions to the widespread issue.

Weyerhaeuser Company v. United States Fish and Wildlife Service (FWS) (2018)

Historically, the Endangered Species Act has been one of the strongest environmental legal tools in existence. Weyerhaeuser Co. v. FWS was one of the largest ESA cases of the past decade that put that strength to the test. The case involved the FWS's inclusion of a private piece of Louisiana land with commercial development plans in its designation of a critical habitat for an endangered frog because of the frog's historical use of the land, despite the fact that no frogs remained there in the present day. ¹⁰ The Supreme Court, in a unanimous decision, reformed the way that environmentalists and the law views the critical habitat of endangered and listed species.

First, the Court held that in order to be deemed a critical habitat for a species, the species has to be currently habitating there, striking down the FWS argument that critical habitats included areas that could be modified in an effort to support dwindling species. ¹¹ Second, the Court held that it did have the authority to review an Agency decision about a species' critical habitat, such as existed here. ¹² From an environmental perspective, this holding is an obstacle for preserving historical habitats of species that have been forced out of their native environments by human development, as it will now be harder to give them their land back.

[Page 240]

Atlantic Richfield Co. v. Christian (2020)

Atlantic Richfield Co. v. Christian was a case decided by the United States Supreme Court in 2020. The case dealt with the question of whether private landowners could go beyond the cleanup plan established under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and seek additional cleanup of their property contaminated by a Superfund site. ¹³ The Court held that CERCLA does not prohibit such claims and that landowners could sue for restoration damages beyond what the EPA has ordered. ¹⁴ The Court's holding was in line with CERCLA's goal of "promot[ing] the timely cleanup of hazardous waste sites and . . . ensur[ing] that the costs of such cleanup efforts [are] borne by those responsible for the contamination." ¹⁵

The decision has significant implications for both environmental law and industry. It provides a pathway for private landowners to recover additional cleanup costs from polluters beyond what...