March 12, 2013
A recent decision by the United States Supreme Court has raised questions about the scope of plaintiffs’ standing to bring suit in federal court, a critical issue for environmental litigants.
Federal courts have long recognized that certain types of environmental harms can form the basis of standing under Article III of the United States Constitution, which requires plaintiffs to establish an “actual or imminent” injury that is “fairly traceable” to the challenged conduct and “likely to be redressed” by a favorable decision. In one of the earliest federal rulings on environmental standing, Scenic Hudson Preservation Conference v. Federal Power Commission, the Second Circuit held that “those who by their activities and conduct have exhibited a special interest” in the “aesthetic, conservational, and recreational aspects” of a site have Article III standing, even in the absence of a “personal economic interest” at stake. 354 F.2d 608, 615-616 (1965). Although it has been well established that environmental harms, and not just economic harms, can serve as the basis for a federal lawsuit, courts have struggled to define which types of environmental harms may give rise to standing. In particular, courts have questioned what level of risk, and over what time scale, rises to the level of a cognizable environmental injury.
In a recent 5-4 decision, the Supreme Court held that a coalition of lawyers, human rights activists and journalists lacked standing to challenge government surveillance activities because the threatened harm posed by potential surveillance was, in the view of the majority, too remote. Clapper v. Amnesty International, 2013 WL 673253 (U.S. February 26, 2013). In Clapper, the plaintiffs sought to challenge the constitutionality of § 1881a of the Foreign Intelligence Surveillance Act (FISA), which authorizes federal interception of certain communications between parties located in the United States and parties outside the United States. The Second Circuit found that the plaintiffs had established standing by demonstrating an “objectively reasonable likelihood” that they would eventually be subjected to the surveillance that they claimed was unconstitutional. Amnesty Int’l USA v. Clapper, 638 F.3d 118, 134 (2d Cir. 2011). The Supreme Court overturned this decision, holding that the plaintiffs needed to demonstrate that their future injuries were “certainly impending.”
Many environmental issues involve long-term risk of harm that may not materialize immediately, most notably, but not exclusively, in connection with climate change. In Massachusetts v. EPA, the Supreme Court confronted the question of whether claims by the State of Massachusetts that it would lose parts of its coast due to gradual sea-level rise resulting from climate change were too speculative or too far in the future to establish standing. 549 U.S. 497, 521 (2007). The Court found, in a 5-4 decision, that this injury could serve as a basis for standing, concluding that Massachusetts had already been harmed by the loss of coastal land and “[t]he risk of catastrophic harm, though remote, is nevertheless real.” Id. at 526.
The court also indicated that its finding of Article III standing was informed by a “special solicitude” derived from Massachusetts’ status as a sovereign and by the fact that Massachusetts sought, in the case, to exercise a “procedural right” granted by the Clean Air Act. Id. at 520. Yet the Court did not clarify the precise role that these considerations played in its analysis. In an opinion four years later, an evenly divided Supreme Court upheld the standing of the State of Connecticut to seek injunctive relief for harms caused by climate change, citing Massachusetts v. EPA. American Electric Power v. Connecticut, 131 S.Ct. 2527, 2535 (2011).
The Supreme Court’s recent decision in Clapper may signal a turn towards a higher threshold for standing predicated on claims of risk. While the “certainly impending” definition of “actual or imminent” harm has been cited in prior Supreme Court cases, applied strictly it could greatly limit standing based upon claims of future injury. As the Clapper dissent argued, “[t]he future is inherently uncertain … yet federal courts frequently entertain actions for injunctions and for declaratory relief aimed at preventing future activities that are reasonably likely or highly likely, but not absolutely certain, to take place.”
Some commentators have suggested that the Supreme Court’s decision in Clapper may have been motivated by deference towards the executive branch in matters of national security, and that its precedent may have little effect on litigation in other areas. As the majority opinion observed, “[W]e have often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs.” It remains to be seen if and how plaintiffs, defendants, and the courts will address Clapper in future environmental cases.
March 22, 2012
In a unanimous decision that could herald major changes in federal and state environmental enforcement, yesterday the Supreme Court upheld a property owner’s right to challenge the basis for a Clean Water Act compliance order alleging unlawful filling of wetlands, before the Environmental Protection Agency (“EPA”) had filed suit to enforce it. Previously, EPA and every Circuit Court to consider the issue had denied pre-enforcement review of such orders, requiring landowners to apply for a fill permit in order to challenge EPA’s assertion of jurisdiction or risk substantial penalties for violating EPA’s directives.
The significance of the Supreme Court’s ruling in Sackett v. EPA is likely to extend beyond the Clean Water Act, however, as administrative agencies frequently issue interim decisions – similar to the EPA’s compliance order in Sackett – while claiming that such actions are either non-final or statutorily precluded from pre-enforcement review. Writing for the Court, Justice Scalia found that the order “has all the hallmarks of … finality” and “there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review — even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.” Similar reasoning could apply to other federal environmental statutes as well, aside from the federal Superfund law which is “uniquely designed” in its express preclusion of certain pre-enforcement review.
Sackett arose out of an Idaho couple’s filling of part of a residential lot, which the EPA later determined to be regulated wetlands. EPA issued a compliance order directing the landowners to remove the fill and implement a Restoration Work Plan, and threatening penalties of up to $75,000 per day of non-compliance.
The landowners sued, arguing that EPA had incorrectly classified their property as a wetland and its compliance order was arbitrary and capricious as a result. Both the District Court and the 9th Circuit Court of Appeals dismissed their challenge for lack of jurisdiction, holding that the Clean Water Act precluded pre-enforcement review of compliance orders, and that such limitation did not violate the Due Process Clause because the landowners could still apply for a wetlands fill permit from the U.S. Army Corps of Engineers (“Army Corps”) or ignore the order and challenge EPA’s wetlands determination in defense of an EPA civil enforcement action.
The Supreme Court reversed. As a threshold matter, the Court ruled that the compliance order was “final agency action” subject to challenge under the Administrative Procedure Act (“APA”), because it determined the landowners’ legal obligations and marked EPA’s final determination as to the scope of its jurisdiction. The Court rejected the argument that the landowners were required to apply for and challenge the denial of a wetlands fill permit, instead holding: “The remedy for denial of action that might be sought from one agency does not ordinarily provide an ‘adequate remedy’ for action already taken by another agency.”
Finally, the Court found that the Clean Water Act does not limit the courts’ pre-enforcement jurisdiction, finding no evidence in the statutory text or legislative history to overcome the APA presumption of judicial review. It thus did not determine whether denial of review would have violated the landowners’ Due Process rights, but a concurrence from Justice Alito suggests that he would have upheld the Sacketts’ constitutional argument that without the opportunity for judicial review they would have been deprived of property rights without due process.
In addition to the compliance orders at issue in Sackett, the Supreme Court’s reasoning may expand judicial review over a broad range of interim administrative decisions. For instance, federal and state agencies often issue “jurisdictional determinations” defining the boundaries of regulated wetlands, limiting the use of such property where no alleged violation has yet occurred. Future litigation will likely determine whether such determinations can be challenged under the APA and its state counterparts, as well as whether Clean Air Act Administrative Compliance Orders – which EPA has historically interpreted as not subject to pre-enforcement review – are affected by the Supreme Court’s ruling.
For more information on the Sackett decision and judicial review of agency actions, contact Daniel Riesel.
July 11, 2011
On June 28, the Supreme Court granted a petition to review a Ninth Circuit decision holding, as other circuits have also held, that administrative compliance orders issued by the Environmental Protection Agency (“EPA”) under the Clean Water Act are not judicially reviewable until EPA brings an enforcement action in federal court.
The petitioners in this case, Sackett v. EPA, sought judicial review after EPA issued an order applying to property that the agency had determined was within its wetlands jurisdiction. The EPA order prevented the petitioners from building a house and also directed the petitioners to restore the land to its original condition or face heavy penalties.
The Supreme Court granted review on two critical questions: (1) whether pre-enforcement judicial review of administrative compliance orders is available under the Administrative Procedure Act, and (2) if not, whether the unavailability of such review violates the due process clause of the Fifth Amendment.
EPA argued that Supreme Court review was unnecessary because the four other circuit courts which have considered this same issue have all agreed that the absence of pre-enforcement review of orders under the Clean Water Act is authorized and permissible. The Supreme Court appears to have accepted the petitioner’s view that the inability to immediately challenge EPA orders is an issue of significant nationwide importance.
It remains to be seen whether the Supreme Court’s decision in this case will be confined to matters arising under the Clean Water Act. The Supreme Court recently declined to review a decision by the D.C. Circuit upholding the absence of pre-enforcement judicial review under the Superfund law.
Mark Lebel is a Summer Associate at Sive, Paget & Riesel, P.C.
June 20, 2011
Dealing a blow to climate change tort litigants, the Supreme Court ruled 8-0 on June 20, 2011 that Congressional authorization of greenhouse gas (“GHG”) limits has displaced federal common law suits seeking GHG reductions. The Court’s decision in American Electric Power v. Connecticut reversed the Second Circuit Court of Appeals’ ruling that allowed a group of states, cities and land trusts – including New York State and New York City – to pursue federal public nuisance claims against the nation’s largest electric utility GHG emitters.
Justice Sotomayor, who sat on the Second Circuit panel that initially heard the case, recused herself from the Supreme Court’s deliberations. Although the ruling on displacement of federal common law claims was unanimous, the remaining justices were equally divided over whether federal jurisdiction even existed. Four members of the Court (presumably Justices Alito, Roberts, Thomas and Scalia) would have barred the suit on standing or other jurisdictional grounds, while four others (presumably Justices Kagan, Breyer, Ginsburg and Kennedy) affirmed plaintiffs’ standing. (Slip. Op. at 6.) This split – which upholds the Second Circuit’s finding of the plaintiffs’ standing – dates back to the Supreme Court’s 2007 climate change decision, Massachusetts v. EPA, where by a 5-4 margin the Court affirmed the state petitioners’ standing and upheld EPA authority to regulate GHGs under the Clean Air Act.
Justice Ginsburg – part of the five-member majority in Massachusetts v. EPA – authored the latest climate decision. Without deciding whether federal common law could redress GHG-related claims in the absence of Congressional action, she wrote that “any such claim [in this case] would be displaced by the federal legislation authorizing EPA to regulate carbon-dioxide emissions.” (Slip. Op. at 9.) Rejecting the states’ argument that displacement should not apply until EPA actually regulated the sources in question, which it has yet to do, Ginsburg answered: “The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law.” (Slip. Op. at 12.)
The Supreme Court decision does not necessarily foreclose all future climate change tort suits. The Court did not determine whether federal law has preempted state common law remedies, as this issue was not decided below or briefed before the Supreme Court. (Slip. Op. at 15-16.) That issue was left open for consideration on remand. Moreover, the Court’s displacement-based decision could be revisited should Congress withdraw or otherwise interfere with EPA’s existing climate change authority, as several opponents of EPA regulation have proposed in recent years.
On Thursday, June 30th, the New York City Bar Association’s Environmental Law Committee and International Environmental Law Committee, the Environmental Law Institute, and the Center for Climate Change Law at Columbia Law School are sponsoring a debate on the Supreme Court’s decision at 6:00 p.m. in the Great Hall of the New York City Bar Association. Event information and registration are currently available online.
December 6, 2010
On December 6, the Supreme Court granted review of the climate tort suit Connecticut v. American Electric Power (“AEP”), setting the stage for a major decision on the availability of common law remedies for climate-related harms.
Justice Sonia Sotomayor, who presided over oral arguments in the case while a judge on the Second Circuit, did not participate in the Supreme Court’s consideration of the petition for review. Justice Sotomayor is expected to recuse herself when the case comes before the Court.
The case arises out of a 2004 suit filed by eight states (including New York), three land trusts and New York City against five electric utilities and one of their subsidiaries, alleged to be the “five largest emitters of carbon dioxide in the United States.” The plaintiffs claimed that the power companies’ greenhouse gas (GHG) emissions constituted a public nuisance under federal common law and the common law of 20 states where the defendants operated power plants, and sought an injunction requiring “each defendant to … cap its carbon dioxide emissions and then reduce them by a specified percentage each year ….”
In 2005, United States District Judge Loretta A. Preska dismissed the suit under the political question doctrine, reasoning that the policy determinations required to set and implement a GHG emissions cap were of the type reserved for Congress and the President. Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 272 (S.D.N.Y. 2005), vacated and remanded 582 F.3d 309 (2d Cir. 2009). In a footnote, the Court withheld judgment on whether the plaintiffs would have been able to establish standing to bring their suit. Id. at 271, n. 6.
The Second Circuit heard an appeal from the dismissal order in 2006, with then-Circuit Court Sotomayor sitting on the three-judge panel. Following a three-year delay and Sotomayor’s nomination to the Supreme Court, the remaining two judges reversed the District Court and remanded the case for further consideration, ruling that: (a) the suit was not barred by the political question doctrine, (b) the plaintiffs had standing to litigate the dispute, and (c) the common law claims had been not been displaced by EPA’s then-unfinalized proposals to regulate GHGs under the Clean Air Act. Connecticut v. Am. Elec. Power Co., 582 F.3d 309 (2d Cir. 2009).
The defendants petitioned for Supreme Court review of the Second Circuit decision last August. In a move that took many by surprise, the Obama Administration filed a brief in support of the utilities’ petition, arguing that the plaintiffs lacked “prudential standing” and that the finalization of the EPA climate regulations which were pending at the time of the Second Circuit decision had displaced the federal common law relief sought by the states.
The Supreme Court’s decision could set key precedent for other pending climate tort suits and for environmental litigation more broadly. The standing doctrine – which requires litigants to establish a particularized injury caused by the opposing party and redressable by judicial action – is often highly contested in environmental cases, especially those involving harms like global warming which have broad impacts and multiple causes. While the Supreme Court found that a similar set of state plaintiffs met the constitution’s standing requirements in its 2007 climate change decision Massachusetts v. EPA, a rejection of the current suit on “prudential standing” grounds could give lower courts broad discretion to dismiss pending and future climate litigation. If Justice Sotomayor recuses herself, the Court may end up deadlocked between the four Massachusetts v. EPA dissenters and the four remaining justices, a split which would leave the Second Circuit decision on the books but would not set binding precedent for other courts.
The Supreme Court could also conclude that EPA climate regulations finalized since the Second Circuit decision have displaced the common law remedies sought by the plaintiffs. Many of those regulations are currently facing their own legal challenges, however, creating the possibility that the rules central to this displacement argument could themselves be overturned.
Oral arguments and a decision in the Connecticut v. AEP case are expected over the coming year. For more information on pending global warming litigation and EPA’s climate rules, please contact Jeffrey Gracer.
May 26, 2009
This morning, President Barack Obama announced his decision to nominate Second Circuit Court of Appeals Judge Sonia Sotomayor to fill the seat on the Supreme Court being vacated by Justice David Souter, who has announced his retirement. If confirmed, Sotomayor will represent an important vote on a variety of legal issues, including the scope and application of our nation’s environmental laws.
In 2007, Sotomayor authored the Second Circuit opinion in Riverkeeper v. EPA, holding that the Environmental Protection Agency could not rely on cost-benefit analysis in determining the “best available technology” required to minimize nuclear power plants’ cooling towers’ impacts on aquatic life. 475 F.3d 83 (2007). Riverkeeper arose under the Clean Water Act, but it follows a diverse line of cases on whether agencies can base environmental decisions on cost-benefit analysis when the underlying statute is silent. Last year, the Supreme Court reversed this opinion, with Justice Souter in the three-member dissent.
In US v. Giordano, a non-environmental case, Sotomayor rejected an attempt to limit Congress’s regulatory power under the Commerce Clause, holding that a national telephone network was an instrumentality of interstate commerce even if the calls in question occurred within a single state. 442 F.3d 30 (2006). In recent years, a number of federal environmental laws, including the application of the Clean Water Act to “isolated” wetlands and the use of the Endangered Species Act to protect purely intrastate species, have been challenged as exceeding Congress’ commerce powers, leading to a 2007 Supreme Court opinion that set forth a new test for federal wetlands protections. The Obama administration recently expressed support for legislative clarification of the scope of CWA jurisdiction.
If her opinions in Riverkeeper and Giordano are any guide, it is likely that Sotomayor, if confirmed, will bring to the Supreme Court a deference to Congressional determinations requiring environmental protection, even in the face of potentially high economic costs. She also may hold a relatively broad view of Congress’ interstate commerce authority, which may stymie further attempts to challenge environmental statutes on those grounds.