Environmental Law Quiz 1

STEPS

• stated policy scenario

• more conservative

• 2100: 2.5 degrees C

APS & NZE

• more defined goal of emissions

• more ambitious

• 2100: 1.7 - 1.5 degrees C

  • NZE focus on clean energy

Private Environmental Governance (PEG)

private actions

• firms

• non-profits/NGOs

• industry associations

ESG

Environmental social governance

Project Gigaton

• Walmart 2010 commitment to reduce emissions

  • new goal in 2017 to reduce 1 billion tons by 2030

• Helps suppliers find more renewable options & financings

Greenhushing

• intentionally downplaying or withholding information about a company's genuine sustainability efforts

  • fear of backlash

Greenwashing

• deceptive marketing practice where companies and organizations exaggerate or falsify their environmental credentials to appear more sustainable or environmentally friendly

Who should/can govern?

• public actors

• federal, state, local

• non-traditional

• courts

• legislatures

• regulatory agencies

• private actors

What tools/instruments of governance are best under different circumstances?

• prescriptive rules

• market-leveraging instruments

• informational governance

• insurance

• property rights

What ends should governance serve? Why govern?

• efficiency

• distributive justice

• democratic participation

• shareholder profit

• shareholder welfare

• stakeholder values

Royal Bank of Canada (RBC)

• question of whether banks and other financial institutions should play a role in attempting to reduce/increase emissions

• RBC financially backed oil-sands development in Alberta

  • Contrasts their commitment statement

• major GHG emissions and waste of water

Rainforest Action Network (RAN)

• passed statement to banks to limit emissions & unsustainable projects

  • reports, policy, goals

• established a binding & uniform legal framework for banks to report on the CO2 emissions from their loans/investments

  • NGOs & stakeholders ability to file complaints on what they see as unacceptable transactions

Banks’ Arctic Financing Retreat

• major U.S. banks pledged to stop financing new Arctic drilling projects

  • state governments responded with laws threatening to cut businesses with these banks

• “net-zero banking retreat”: banks withdraw from climate alliances under pressure

Basic structure of U.S. Government

Executive Agencies

• EPA

• Interior

• Transportation

• Defense

cabinet level security, guide of president

Independent Agencies

• SEC

• FDIC

• etc

many heads, appointed, harder to “rid” employees

Stare Decisis

• latin for “let stand that which has been decided”

  • courts are bound by the legal rules announced in earlier cases by courts in controlling jurisdictions

    • SC can overrule precedent

  • no reopening case

U.S. (Federal) Court System

• Supreme Court

• Courts of Appeals

• District Courts

U.S. Supreme Court

• Writ of certiorari (legal order to review case) U.S. Courts of Appeals or State Supreme Court

• Original jurisdiction over suits among states

U.S. Courts of Appeals

• 12 Regional Courts of Appeals (“Circuits”)

• 1 Court of Appeals for Federal Circuit

  • appeals from certain special courts

• appeal as of right from U.S. District Courts

U.S. District Courts

• 94 Judicial Districts

• Bankruptcy Courts

• U.S. Court of International Claims

• U.S. Court of Federal Claims

Geographic boundaries of Courts of Appeals and District Courts

• circuit = region / geographic boundaries of court of appeals

  • SC handle disagreement in decisions by different circuits

State Court System (hierarchy)

• State Supreme Court

  • PA Supreme Court — 7 Justices

• Intermediate Appellate Court(s)

  • PA Superior Court

  • PA Commonwealth Court

• Trial Courts / Courts of General Jurisdiction

  • PA Courts of Common Pleas

• Courts of Limited Jurisdiction, Municipal, Juvenile, Family Courts

  • PA Minor Courts

Anatomy of a Civil Lawsuit

Civil cases vocab

• Plaintiff files a suit

• Complaint

• Burden of Proof: Preponderance of the evidence

• Settlements

• Judgements

• Money or Injunction

Criminal case vocab

• Prosecutor files suit

• Indictment or Information

• Burden of Proof: Beyond a Reasonable Doubt

• Plea Bargains

• Verdict

• Incarceration

Questions I will be asked / how to brief a case 1

Questions I will be asked / how to brief a case 2

Edmunds V. Duff - Pa. 1924

• Plaintiffs: Franklin Edmunds and other local homeowners

• Defendants: Willow Grove Park Co., Philadelphia Rapid Transit Co., John Duff

• Allegation: Defendants planned to build and operate a large amusement park in a quiet residential area

  • music pavilions

  • merry-go-rounds

  • swings, etc

• Cause of Action: public nuisance

• Relief Sought: Injunction to stop construction and operation of the amusement park

• Procedural Posture: Court of Common Pleas (Delaware County) granted injunction to plaintiffs

  • Defendants appealed to the Supreme Court of Pennsylvania

• Issue: Question of whether park constitutes a nuisance justifying an injunction

• Holding: yes, nuisance —> injunction

• Reasoning: evidence showed park’s noise would interfere with homeowners’ enjoyment of their property

  • Even before construction, there was a reasonable certainty of nuisance

• Landowner cannot interfere with others’ enjoyment of their property

Madison V. Ducktown Sulfur, Copper & Iron Co. - Tenn. 1904

• Plaintiffs: Madison and other local farmers/landowners

• Defendants: Ducktown Sulphur, Copper & Iron Company, a large copper smelting operation in Tennessee

• Allegation: Company’s smelters released sulfur dioxide fumes that destroyed crops, timber, and rendered land less valuable

• Cause of Action: Private nuisance

• Relief Sought: Injunction to stop the smelting operations and damages for harm caused

• Procedural Posture: Tennessee trial court awarded monetary damages but refused to issue an injunction

  • Plaintiffs appealed, seeking an injunction to halt operations

• Issue: Whether the court should enjoin the company’s copper smelting operations, despite proven nuisance and property damage

• Holding: No injunction —> the court awarded money damages but allowed the smelters to continue operating

• Reasoning: While the smoke clearly damaged plaintiffs’ land (a nuisance), shutting down the smelters would destroy a major regional industry and harm the broader public interest

  • The economic importance of the operations outweighed the private injury

• “Balancing of hardships”

Hierarchy of Remedies

Private Nuisance

• A wrongful invasion

• Of a legal right or interest

  • Conduct is unreasonable or unlawful

• Causation

• Damage (harm)

Missouri V. Illinois - U.S. Supreme Court 1901 & 1906

• Plaintiffs: State of Missouri

• Defendants: State of Illinois and the Sanitary District of Chicago

• Allegation: Chicago reversed the flow of the Chicago River through the new Sanitary & Ship Canal, sending untreated sewage into the Mississippi River system, which Missouri claimed polluted the Mississippi and endangered the health of St. Louis residents

• Cause of Action: Public nuisance

• Relief Sought: Injunction to stop Illinois from discharging sewage through the canal

• Procedural Posture: Original jurisdiction case before the U.S. Supreme Court

  • Case argued first in 1901 on whether Missouri stated a valid claim; the Court allowed the case to proceed.

  • Final decision in 1906 after trial-like fact-finding

• Issue: Whether Illinois’ discharge of sewage via the canal created a public health nuisance that justified the Supreme Court ordering an injunction

• Holding: No injunction —> the Supreme Court held Missouri did not prove by clear and convincing evidence that Illinois’ sewage caused the alleged disease and harm in Missouri

  • Reasoning: Although Missouri showed pollution existed, the evidence was insufficient to directly link Illinois’ sewage to the typhoid outbreaks in St. Louis

• The Court emphasized the need for clear and convincing proof when one state seeks to restrain another state’s public works

• The decision stressed caution in using federal power to interfere with another state’s internal improvements without solid evidence

In interstate nuisance claims, a state must provide clear and convincing evidence of direct harm to obtain an injunction; mere suspicion or indirect correlation is insufficient for Supreme Court intervention

Public Nuisance

• Involves a common right of the public to use or enjoy the land

• elements of Cause of Action for Public nuisance:

  • an unreasonable interference with

  • the public’s right to use and enjoy land (“King’s highway”)

  • Causation

  • Damages/harm

• Plaintiff can be either the government or private parties “uniquely affected” by the harm

Georgia V. Tenn. Copper, US Supreme Court 1907

• Plaintiffs: State of Georgia

• Defendants: Tennessee Copper Company and related copper smelters operating just over the border

• Allegation: Sulfur dioxide fumes from the smelters drifted into Georgia, damaging forests, crops, and residents’ health

• Cause of Action: Public nuisance

  • Georgia claimed harm to its environment and the welfare of its citizens

• Relief Sought: Injunction to restrain the smelters from emitting harmful fumes into Georgia

• Procedural Posture: Brought directly in the U.S. Supreme Court under its original jurisdiction

• Georgia sought an injunction to stop the pollution

• Issue: Whether the Supreme Court should grant an injunction against a private company in another state whose pollution was causing environmental damage across state lines

• Holding: Yes —> The Court granted Georgia an injunction to limit the sulfur dioxide emissions

• Reasoning: Justice Holmes emphasized that a state has quasi-sovereign interests in protecting the health and property of its citizens.

• Georgia, as a sovereign, is not merely a private litigant; it may demand relief to safeguard its natural resources and the well-being of its people

• The Court held that when one state’s activities cause proven harm to another state’s territory, federal equity can enjoin the conduct

The Supreme Court can issue an injunction to stop interstate environmental harm when a state shows a direct and substantial injury

Intergovernmental Panel on Climate Change (IPCC)

• Founded 1988

• Organized by the UN Environmental Program (UNEP) and World Meteorological Organization

• Aim: Provide world with best scientific evidence on climate change

The Greenhouse Effect

Greenhouse gas emissions

Greenhouse gas emissions by sector

Climate science effects

• Physical and biological systems

• Increases in ocean acidification

• Changes in polar temperatures

• Changes in global precipitation

• Sea level rise

• More rapid than expected thawing of ice sheets in Arctic, Antarctic, and Greenland permafrost

Changing Climate in the Arctic

Kivalina V. ExxonMobil - 9th Cir. 2012

• Plaintiffs: Native Village of Kivalina

• Defendants: ExxonMobil and two dozen other major oil, energy, and utility companies

• Allegation: Defendants’ greenhouse gas emissions contributed to global warming, which caused sea ice loss and severe coastal erosion, threatening the village’s existence

• Cause of Action: Federal common law public nuisance

• Relief Sought: Monetary damages to cover the cost of relocating the entire village

• Procedural Posture: Federal district court dismissed the case

• Ninth Circuit Court of Appeals affirmed dismissal

• Issue: Whether plaintiffs could bring a federal common law public nuisance claim for damages against private companies for their contributions to climate change

• Holding: No —> the Ninth Circuit held that the claim was barred

• Reasoning: The Clean Air Act authorizes the EPA to regulate greenhouse gases; under American Electric Power v. Connecticut, this displaces federal common law nuisance claims about greenhouse gas emissions

• Additionally, plaintiffs lacked standing: the alleged harms were too generalized and not “fairly traceable” to specific defendants in a way the courts could redress

Federal common law public nuisance claims for greenhouse gas emissions are displaced by the Clean Air Act

American Electric Power Co. v. Connecticut -U.S. Supreme Court 2011

• Plaintiffs: Several states (including Connecticut, New York, and others), New York City, and three land trusts

• Defendants: Major electric power companies (e.g., AEP, TVA)

• Allegation: Defendants’ greenhouse gas emissions contributed to climate change and created a federal common-law public nuisance by causing widespread environmental harm

• Relief Sought: Injunction requiring the utilities to cap and reduce carbon dioxide emissions

• Procedural Posture: District court dismissed as a political question; Second Circuit reversed and allowed the suit

• U.S. Supreme Court granted certiorari

• Issue: Whether federal common-law nuisance claims can be used to force utilities to reduce greenhouse gas emissions, given the Clean Air Act

• Holding: No —> the Clean Air Act displaces federal common-law nuisance claims regarding greenhouse gas emissions.

• Reasoning: Congress delegated authority to the EPA to regulate greenhouse gases, and after Massachusetts v. EPA (2007) the EPA can set standards for CO2

• When Congress provides a comprehensive statutory scheme, federal common law is displaced

• Plaintiffs can instead pursue remedies through the EPA’s regulatory process

Once Congress creates a detailed regulatory framework for greenhouse gases, federal common-law public nuisance suits to control those emissions are barred

Hoboken V. Chevron Corp - 3rd Cir. 2022

• Plaintiffs: City of Hoboken, NJ, and State of Delaware

• Defendants: Major oil and gas companies including Chevron, ExxonMobil, and others

• Allegation: Fossil fuel companies misled the public for decades about the risks of climate change, while their products drove rising seas and extreme weather, causing local damage

  • flooding

  • infrastructure harm

• Claims: Public nuisance, trespass, consumer fraud, and related torts—seeking money damages and abatement costs

• Relief Sought: Compensation and funding to mitigate climate-related harms

• Procedural Posture: Oil companies removed the case from state court to federal court, arguing federal jurisdiction (because claims implicated federal common law and climate policy)

  • District court remanded to state court.

• Defendants appealed to the Third Circuit

• Issue: Whether the climate-damage lawsuits, framed under state law, should be heard in federal court

• Holding: No —> tThe Third Circuit affirmed the remand to state court

• Reasoning: The plaintiffs pleaded only state-law claims, and the defendants failed to show a valid basis for federal jurisdiction

• The court rejected arguments that federal common law or federal officer removal automatically converts these claims into federal questions

Climate-related tort suits that are explicitly state-law based cannot be forced into federal court merely because they involve issues of interstate pollution or climate change

Suncor Energy V. Boulder, US SCT

• Plaintiffs: City of Boulder

• Defendants: Suncor Energy and other energy firms

• Allegation: Defendants’ fossil-fuel production, marketing, and alleged deception about climate risks contributed to climate change, causing costly local impacts such as wildfires, drought, and flooding

• Claims: Colorado state-law tort claims—public nuisance, trespass, unjust enrichment, and violations of the Colorado Consumer Protection Act

• Relief Sought: Money damages and abatement funds to offset climate-related harms

• Procedural Posture: Defendants sought to remove the case from Colorado state court to federal court, arguing federal jurisdiction

  • The federal district court remanded to state court

• The Tenth Circuit affirmed the remand in 2022

• Defendants petitioned the U.S. Supreme Court for certiorari

• Issue: Whether these state-law climate-damage suits belong in federal court on the theory that they are inherently federal because they implicate interstate and international emissions regulation

• Holding: The Tenth Circuit held removal was improper and affirmed that the cases belong in state court

  • Supreme Court denied certiorari

• Reasoning: Plaintiffs carefully pleaded only state-law causes of action; federal common law does not automatically convert them to federal questions.

• Defendants failed to show a valid federal jurisdictional hook

State-law climate tort suits can remain in state court even when they target global fossil-fuel emissions

Tragedy of the Commons

• Individuals in the group receive a higher payoff for defecting than for cooperating, regardless of others’ choices

• Higher total payoffs result from universal cooperation, but variation in who claims the value

Tragedy of the Commons Hardin’s Solutions

• “Mutual coercion mutually agreed upon”

• Privatize the commons (divide the land into parcels)

• Coercive laws imposed by external “Leviathan” (Government control)

• Population control

Tragedy of the Commons Ostrom’s Response

• Pluralist: many solutions are possible

• Insider solutions, self-regulation

• Collective action: Clearly defined boundaries, monitoring (sometimes by insiders), conflict-resolution mechanism, graduated sanctions

Bicameralism

Both Chambers of Congress (House and Senate) must agree on the text

Presentment

The proposed law must be presented to the President to sign

Law by Congress

• statutes

• legislation

Law by President

• executive orders

Law by Courts

• Decisions

• Judgments

• Rulings

Agencies issue:

• Regulations

  • “Rulemaking”

• Agency interprets what the statue means when it adopts a regulation

Agency Rulemaking

governed by Administrative Procedure Act (APA)

• To challenge, must comment then if dissatisfied by response, lawsuit

3 ways statute can settle legal standards (by Congress)

• Sets standard itself

• Expressly delegates standard-setting to an agency

• Leaves gap/ambiguity

Chevron V. NRDC (1984)

• Plaintiffs: Natural Resources Defense Council (NRDC) and other environmental groups

• Defendants: Environmental Protection Agency (EPA) and Chevron U.S.A. (intervenor)

• Allegation: EPA’s new rule interpreted “stationary source” under the Clean Air Act to mean an entire plant (“bubble concept”), letting companies treat all smokestacks in one facility as a single source.

• Claims: Challenge to validity of EPA’s regulation under the Clean Air Act

• Relief Sought: Invalidate EPA’s rule and require a stricter, smokestack-by-smokestack interpretation

• Procedural Posture: D.C. Circuit struck down EPA’s “bubble” rule.

  • EPA and Chevron appealed to the U.S. Supreme Court

• The Tenth Circuit affirmed the remand in 2022

• Issue: Whether the term “stationary source” refers to each smokestack or the whole facility, and whether courts must defer to EPA’s interpretation when the statute is ambiguous

• Holding: The Supreme Court upheld EPA’s “bubble” interpretation and established the principle of Chevron deference

• Reasoning: Created a two-step framework:

  1. If Congress has spoken clearly, courts must follow Congress’s intent.

  2. If the statute is ambiguous, courts defer to the agency’s reasonable interpretation.

• The Clean Air Act’s definition of “stationary source” was ambiguous, and EPA’s “bubble” rule was a reasonable policy choice

Chevron deference: When Congress leaves a statutory gap or ambiguity, a reasonable agency interpretation controls, even if a court might prefer another reading

Loper-Bright V. Raimondo (S. Ct. 2024)

• Plaintiffs: Loper Bright Enterprises and other family-owned fishing companies

• Defendants: U.S. Secretary of Commerce (Raimondo) and the National Marine Fisheries Service (NMFS)

• Allegation: NMFS required certain Atlantic herring vessels to pay the salaries of federal observers who monitor fishing activities for compliance with federal law

• Claims: Plaintiffs argued the Magnuson-Stevens Fishery Conservation and Management Act does not authorize NMFS to force industry to fund federal observers

• Relief Sought: Invalidate the NMFS rule and stop the agency from imposing the cost

• Procedural Posture: D.C. Circuit upheld NMFS’s rule, applying Chevron deference to the agency’s interpretation of the statute.

• Supreme Court granted certiorari to consider whether to overrule or limit Chevron

• Issue: Whether Chevron deference should continue to govern when courts review agency interpretations of ambiguous statutes

• Holding: The Supreme Court overruled Chevron. Courts must independently interpret statutes without deferring to an agency’s view simply because the statute is ambiguous

• Reasoning: Statutory interpretation is the duty of the judiciary under Article III; courts may consider an agency’s expertise for guidance but cannot abdicate their role

• Deference under Chevron allowed agencies to effectively make law, undermining separation of powers

  • Agencies can still receive respect (Skidmore deference) when their reasoning is persuasive, but not automatic controlling weight

Chevron deference is no longer controlling: Courts now interpret ambiguous statutes de novo, giving agency interpretations only whatever persuasive weight they deserve

Salzman’s Five P’s

• Prescriptive Regulation

• Property Rights

• Financial Penalties

• Financial Payments

• Persuasion

Caption

case title

Case citation

letters/numbers indicating the court, reporter, and year

Concurring opinion (concurrence)

judge agrees with the outcome but uses different reasoning

Dissenting opinion (dissent)

judge disagrees with the majority’s decision

Appeal

legal proceeding reviewing a lower court’s decision

Appellant

losing party in lower court, filing the appeal

Remand

send case back to lower court for further proceedings

Vacate

nullify lower court decision

Common Law

body of judicial decisions, derived from English law

Holding

the essential rule of law necessary to decide the case

Dicta

statements not essential to the ruling; commentary “by the way”