19TH CENTURY INDIAN TREATIES AND 21ST CENTURY ENVIRONMENTAL AND NATURAL RESOURCES ISSUES: IS THERE A CONNECTION?
DIARMUID F. O’SCANNLAIN
The Stevens Treaties of 1854 and 1855 guaranteed, among other things, tribal rights to hunt and fish. In recent years, court enforcement of the Stevens Treaties has led to complex injunctions that, as in United States v. Washington, resemble environmental regulations. This Article discusses some of the questions raised when environmental policy is made through the judicial enforcement of the Stevens Treaties, particularly questions of interpretation, institutional competence, and State–Tribal relations.
PREEMPTION AT MIDFIELD: WHY THE CURRENT GENERATION OF STATE-LAW-BASED CLIMATE CHANGE LITIGATION VIOLATES THE SUPREMACY CLAUSE
DAMIEN M. SCHIFF & PAUL BEARD II
In American Electric Power Co. v. Connecticut, the United States Supreme Court ruled that the federal Clean Air Act displaces any otherwise available federal common law cause of action seeking remedies for harms derived from coal-fired power plants’ contribution to climate change. The Court expressly declined, however, to address whether the Clean Air Act preempts analogous state-law-based causes of action. Hoping that it does not, several state and local governments and environmental organizations have over the last few years filed state-law-based actions throughout the country, seeking abatement against the nation’s largest energy producers.
This latest round of climate litigation is preempted. In International Paper Co. v. Ouellette, the Supreme Court ruled that the Clean Water Act preempts state-law-based causes of action against alleged water polluters, unless those actions are founded on the law of the state whence the water pollution originates. Based on the textual and structural similarities between the Clean Water Act and Clean Air Act, the lower courts have consistently interpreted Ouellette to dictate the preemptive scope of both statutes.
Applying the rule of Ouellette to the current generation of state- law-based climate litigation yields a clear answer of preemption. To be sure, consumers’ use of energy company defendants’ legal products results in greenhouse gas emissions in the states in which the defendants have been sued. But that quantum of emissions is insufficient to establish a causal link between the companies’ activities and any harm derivable from climate change. In fact, the climate litigation plaintiffs can make out a plausible cause of action to support their state-law-based tort theories only if they rely upon worldwide emissions attributable to the defendants’ production and marketing of their products. But such reliance effectively projects one jurisdiction’s air pollution law onto others, precisely what Ouellette says is forbidden.
This application of Ouellette’s preemption rule makes good policy sense. Courts are poorly equipped to address the technical and scientific debates surrounding climate science and the pinning of liability for contributions to global warming. Moreover, the formulation of any governmental response to climate change entails significant trade-offs and non-legal judgment. This policy development is best left to the politically responsible branches of government. Deemphasizing litigation as a tool to obtain remedies to climate change especially makes sense given that the judiciary is institutionally limited to a case-by-case mode of operation, which is ill-suited to producing the comprehensive solution that climate activists demand.
For more than twenty years, the Federal Energy Regulation Commission (FERC) has sought to increase open access to electricity transmission infrastructure owned by incumbent monopolistic utilities. While these efforts have produced some benefits, incumbent transmission line owners continue to exercise market power that allows them to deter and delay streamlined open transmission access. In an effort to minimize the incumbents’ anticompetitive force, FERC passed a law eliminating a federal right of first refusal (ROFR), which had given incumbents preferential rights to build and profit from new regional transmission infrastructure. States responded to FERC’s actions by creating their own state ROFR, which will allow incumbent utilities to expand the scope of their monopolies. Frustrated by FERC’s acquiescence to the new state laws, an independent transmission developer has challenged a Minnesota ROFR on Dormant Commerce Clause grounds. The resolution of the lawsuit could have profound impacts on the transition to a decarbonized, multi-scalar, competitive energy system.
EDWARD SULLIVAN & A. DAN TARLOCK
The withdrawal by the United States from the Paris Climate Accords leaves American cities and states as the agents for change in reaching the world goal of less than two-degrees Celsius increase over the pre-industrial levels. While some states, notably California, have stepped up, climate change response has largely been taken by cities, which will also bear the brunt of climate change effects.
This Article surveys the efforts of six Western American cities,namely Los Angeles, San Francisco, Phoenix, Salt Lake City, Seattle and Portland to deal with climate change and uses four “markers” (i.e., transportation, land use, public services, and facilities and energy generation) to evaluate those responses.
None of the cities reviewed achieve an outstanding grade in allfour categories, and correlatively, none do poorly in all four categories. Instead, there are programs to be emulated in each of these cities.
The conclusions suggest that other cities may wish to adoptselective programs from these cities as their own economic circumstances and political will may allow.
2018 Ninth Circuit Environmental Review
CONTRACTUAL RELATIONSHIPS UNDER CERCLA: RESTORING CERCLA’S INNOCENT LANDOWNER DEFENSE, ONE CIRCUIT AT A TIME
First passed in 1980, the Comprehensive Environmental Response Compensation Act (CERCLA) has served as a robust tool for responding to environmental contamination and promoting remediation efforts. Because the singular purpose of the statute is to address and remediate hazardous contamination, the statute as written applies strict liability broadly with only a few narrow exceptions. Two of these exceptions, the third-party liability defense and related “innocent landowner defense,” allow landowners to avoid liability for contamination if the landowner satisfies specific criteria. These defenses will not apply if the polluting activities occur “in connection with a contractual relationship[.]” Starting in 1992, this language was interpreted to require that the contractual relationship relate directly to the polluting activity, not any contractual relationship between polluter and landowner generally. This served to greatly expand the availability of these landowner defenses by allowing any purchaser or landowner to avoid liability by simply omitting polluting activity from any contract. Recently, the Ninth Circuit in California Department of Toxic Substances Control v. Westside Delivery, correctly held that this interpretation was not in accordance with the statute and rightly determined that the “in connection with a contractual relationship” language required a contractual relationship generally, whether or not it specifically pertained to the contamination. This interpretation restored the third-party liability defense and the innocent landowner defense in particular to their original narrow application, in line with the plain meaning of the statute, CERLCA’s purpose, the statute taken as a whole, and Congress’s intent.
Can a polluter evade Clean Water Act regulation by moving their discharge pipe a few feet from the riverbank? In 2018 three circuit courts addressed this question in cases involving point source discharges of pollutants that moved through hydrologically connected groundwater before reaching navigable waters. The Ninth Circuit, in Hawai’i Wildlife Fund v. County of Maui, and the Fourth Circuit, in Upstate Forever v. Kinder Morgan Energy Partners, found such discharges were covered under the Clean Water Act, while the Sixth Circuit, in Tennessee Clean Water Network v. Tennessee Valley Authority and Kentucky Waterways Alliance v. Kentucky Utilities Co., found they were not. This Chapter examines two approaches to interpreting the Clean Water Act, comparing the Ninth and Fourth Circuits’ practical-textual approach with the Sixth Circuit’s hypertextual approach. In comparing these two forms of textualism, this Chapter aims to exemplify why rigid, hypertextual approaches to interpreting environmental statutes can have disastrous practical impacts and lead to absurd results.