Does the Clean Water Act Cover Discharges To Or Through Groundwater, Part II?

Posted on June 15, 2017 by David Buente

One year ago, I published a blog post for the American College of Environmental Lawyers discussing a recent topic of interest in Clean Water Act (“CWA”) jurisprudence—whether the discharge of pollutants into groundwater which is hydrologically connected to a surface water is regulated under the CWA.  I observed that recent district court opinions had come out on either side of this issue, and argued that the line of cases rejecting jurisdiction over discharges to hydrologically connected groundwater correctly interpreted the CWA. 

Today, this issue is still very much a developing area of CWA doctrine.  First, additional district courts have issued decisions both in favor of and against CWA jurisdiction over discharges to hydrologically connected groundwater.  For example, in March 2017, in Sierra Club v. Virginia Electric and Power Co., a CWA citizen suit over alleged discharges from coal ash basins, the Eastern District of Virginia held that “[t]he CWA regulates the discharge of arsenic into navigable surface waters through hydrologically connected groundwater.”   However, a few weeks later, in April 2017, the District of South Carolina came to the opposite conclusion in Upstate Forever v. Kinder Morgan Energy Partners, L.P., a CWA citizen suit regarding alleged discharges resulting from an oil pipeline spill, holding, “[T]he CWA does not apply to claims involving discharge of pollution to groundwater that is hydrologically connected to surface waters.”

These two cases should result in another circuit court weighing in on this important jurisdictional issue.  As noted in my previous post, only the Fifth and Seventh Circuits have issued opinions on this topic, both determining that discharges to groundwater which is hydrologically connected to waters of the United States are not regulated under the CWA or the Oil Pollution Act (courts have typically interpreted the term “navigable waters” to have the same meaning under both acts).  The plaintiffs have already appealed the Upstate Forever decision to the Fourth Circuit, and the Virginia Electric and Power Co. decision has likewise been appealed, although a decision is pending on whether the latter district court decision is yet ripe for appeal.  The Fourth Circuit’s stance will be especially enlightening given that the Ninth Circuit’s Hawai’i Wildlife Fund v. County of Maui case has not advanced in any substantial manner since briefing took place last Summer.

Another important development on this front since my last post is the January 2017 transition from the Obama Administration to the Trump Administration.  On February 28, 2017, President Trump issued an executive order requiring the Environmental Protection Agency (“EPA”) and the Army Corps of Engineers to review the agencies’ definition of “navigable waters” in their 2015 rule and to “consider interpreting the term” to reflect Justice Antonin Scalia’s narrower definition in his plurality opinion in Rapanos v. United States.  As noted in my last post, the 2015 rule already expressly excluded isolated groundwater as a water of the United States.  80 Fed. Reg. at 37073.  Any revised rule would almost certainly keep that exclusion, and could even expand upon it to explicitly exclude hydrologically connected groundwater from the definition of waters of the United States. 

On the other hand, it is worth noting that the Town of Marion, Massachusetts, recently filed a petition for review with the EPA’s Environmental Appeals Board of a National Pollutant Discharge Elimination System permit EPA Region 1 issued to Marion for its wastewater treatment plant in April 2017.  EAB Docket No. MA0100030.  That permit, issued by the EPA since President Trump’s inauguration, regulates groundwater contamination from sewage sludge lagoons and arguably adopts the broader view of Clean Water Act jurisdiction over hydrologically connected groundwater, so the Trump Administration’s position on this crucial jurisdictional issue is not yet clear.         

The issue of whether the Clean Water Act regulates discharges to groundwater which is hydrologically connected to a water of the United States continues to be an important, developing area of the law.  Hopefully, with cases pending before the Fourth and Ninth Circuits, some more clarity on this topic will emerge in the not-too-distant future.

Does the Clean Water Act Cover Discharges To Or Through Groundwater?

Posted on June 15, 2016 by David Buente

An issue that has recently come to the forefront of Clean Water Act (“CWA”) jurisprudence in numerous district courts across the country and which is currently before the Ninth Circuit is whether the discharge of pollutants into groundwater which is hydrologically connected to a surface water is regulated under the CWA.  The CWA prohibits discharges from point sources to navigable waters, defined as “waters of the United States,” unless they are in compliance with another provision of the Act, such as the National Pollutant Discharge Elimination System (“NPDES”) permitting program.  Whether discharges to groundwater hydrologically connected to a surface water body fall under this prohibition is a question with far-reaching consequences for facilities as varied as coal ash basins, slurry pits, retention ponds, and hydraulic fracturing wastewater ponds, all of which could theoretically be deemed to be in violation of the CWA under this hydrological-connection theory if they leak into groundwater at all.

As a preliminary matter, there is no question that isolated groundwater itself is not a water of the United States regulated under the CWA.  First, multiple courts, including several circuit courts of appeals, have held that groundwater is not “waters of the United States.”  Second, the legislative history surrounding the CWA indicates clearly that Congress considered setting standards for groundwater or explicitly including it in the NPDES permitting program and decided against such an approach.  Finally, in the rule, now stayed by the Sixth Circuit, which EPA and the Army Corps of Engineers promulgated last year defining the term “waters of the United States,” the agencies explicitly stated that they had “never interpreted” groundwater “to be a ‘water of the United States’ under the CWA.”  80 Fed. Reg. 37073

The hydrological connection issue is not a new one; both the Seventh Circuit in 1994 and the Fifth Circuit in 2001 determined that discharges to groundwater which is hydrologically connected to waters of the United States are not regulated under the CWA or the Oil Pollution Act (“OPA”) (courts have typically interpreted the term “navigable waters” to have the same meaning under both acts).  In the past few years, however, the frequency of opinions on this topic has increased, and district courts have been very much split on this issue.  Some courts and commentators have dubbed this theory of regulation the “conduit theory,” with the idea being that the groundwater serves as a conduit between the point source and the water of the United States. 

Three district courts have recently rejected the conduit theory.  In 2014, in Cape Fear River Watch, Inc. v. Duke Energy Progress, Inc., the Eastern District of North Carolina confronted the issue of whether seepage from coal ash basins at one of the defendant’s power plants, alleged to contain contaminants and to carry those contaminants through groundwater into a lake, was a discharge prohibited by the CWA.  The court emphatically held that “Congress did not intend for the CWA to extend federal regulatory authority over groundwater, regardless of whether that groundwater is eventually or somehow ‘hydrologically connected’ to navigable surface waters.”  As justifications for its holding, it cited the CWA’s dearth of language actually referring to groundwater, its legislative history, and the 2006 Supreme Court case on the meaning of waters of the United States, Rapanos v. United States, in which the plurality opinion and Justice Kennedy’s concurrence appeared to reflect a limited construction of the term.  The following year, in 2015, the District of Maryland came to a similar conclusion in Chevron U.S.A., Inc. v. Apex Oil Co., Inc.  The court held that “even if it is hydrologically connected to a body of ‘navigable water,’” groundwater is not regulated under the OPA, also citing the language of the CWA, its legislative history, and Rapanos.  Likewise, in 2013, in Tri-Realty Co. v. Ursinus College, the Eastern District of Pennsylvania concluded that “Congress did not intend either the CWA or the OPA to extend federal regulatory authority over groundwater, regardless of whether that groundwater is eventually or somehow ‘hydrologically connected’ to navigable surface waters.”

Other recent district court opinions, however, have come to the opposite conclusion.  In 2014, in Hawai’i Wildlife Fund v. County of Maui, the District of Hawaii confronted the issue of whether the County would need a NPDES permit to discharge waste into underground injection wells when plaintiffs contended that some of the injected wastewater eventually finds its way to the Pacific Ocean.  The district court concluded that “liability arises even if the groundwater…is not itself protected by the Clean Water Act, as long as the groundwater is a conduit through which pollutants are reaching navigable-in-fact water.”  The district court also cited Rapanos in support of its argument.  That case is now before the Ninth Circuit on appeal, and the Department of Justice recently filed an amicus brief supporting the argument that there is CWA jurisdiction where pollutants move through groundwater to jurisdictional surface waters if there is a “direct hydrological connection” between the groundwater and surface waters.  Likewise, in 2015, in Yadkin Riverkeeper v. Duke Energy Carolinas, LLC, the Middle District of North Carolina held that it had jurisdiction over claims where “pollutants travel from a point source to navigable waters through hydrologically connected groundwater serving as a conduit between the point source and the navigable waters.”  That court based its determination in part on the idea that taking an expansive view of the types of discharges which the CWA prohibits is most in line with the statute’s purpose.  A few weeks later in Sierra Club v. Virginia Electric and Power Co., the Eastern District of Virginia, citing Yadkin Riverkeeper, held that a CWA citizen suit against Dominion Virginia Power using the conduit theory should survive a motion to dismiss.

The line of cases rejecting CWA jurisdiction over discharges to groundwater which is hydrologically connected to surface waters of the United States gets it right.  As the legislative history proves, Congress considered regulating discharges to groundwater and rejected such an approach.  This decision is reflected in the language of the statute.  Moreover, in Rapanos, the Supreme Court restricted the factual scenarios under which a wetland could be considered a water of the United States, thus revealing that a majority of the justices on the Court favored a narrower jurisdictional reach under the CWA.  Finally, to accept the “conduit theory” would be to write the “point source” requirement out of the statute.  As described above, a discharge must come from a point source, which the CWA defines as a “discernible, confined and discrete conveyance.”  Groundwater seepage seems to be about as far from a “discernible, confined and discrete” source as it gets, resembling nonpoint source pollution like stormwater runoff.

The Uprising or Downfall of the Clean Water Act’s Permit Shield

Posted on July 31, 2014 by David Buente

            Section 402(k) of the Clean Water Act (CWA) is commonly known as the “permit shield.”  It has been part of the CWA since 1972.  Even seasoned environmental lawyers would not likely need even one hand to count the number of permit shield cases that mattered to one’s practice.  If you fall into this category, it is time to listen up! 

Background.  Section 402(k) states that compliance with a National Pollutant Discharge Elimination System (NPDES) Permit “shall be deemed compliance, for purposes of,” among others, various government enforcement actions and citizens’ suits.  EPA’s regulations make clear that where a party has been issued a permit, if the permit holder complies with the express limits of the permit, the permittee has “the security of knowing that . . . it will not be enforced against for violating some requirements of the [CWA] which was not a requirement of the permit. 45 Fed. Reg. 33,290, 33,311 (May 19, 1980). Federal Register.

            Almost 40 years ago, the Supreme Court in E.I. Du Pont De Nemours & Co. v. Train, confirmed that the purpose of the permit shield is to “insulate permit holders from changes in various regulations during the period of a permit and to relieve them of having to litigate in an enforcement action the question of whether their permits are sufficiently strict.  In short, Section 402(k) serves the purpose of giving permits finality.”

            Train, however, was not the last word on the permit shield.  In 1994, EPA issued a Guidance Memorandum providing its interpretations of the scope of the permit shield.  EPA’s 1994 Guidance explains that:

A permit provides authorization and therefore a shield for the following pollutants             resulting from facility processes, wastestreams and operations that have been clearly identified in the permit application process . . .: (1) Pollutants specifically limited in the   permit or pollutants which the permit, fact sheet, or administrative record explicitly          identify as controlled through indicator parameters.; (2) Pollutants for which the permit authority has not established            limits or other  permit conditions, but which are specifically identified as present in facility discharges during the permit application process; and (3) Pollutants not identified as present [in the facility discharges] but which are constituents of wastestreams, operations, or processes that were clearly identified during the permit application process.

Policy Statement on Scope of Discharge Authorization and Shield Associated with NPDES Permits at 2-3 (July 1, 1994) quoted in In re Ketchikan Pulp Co., CWA Appeal No. 96-7, p. 624 (May 15, 1998).

Shortly thereafter, in 1995, EPA re-issued the July 1994 memorandum entitled Revised Policy of Scope of Discharge Authorization and Shield Associated with NPDES Permits(now known as the “1995 Policy Statement”). The 1995 Policy Statement added qualifying text to the second and third conditions in EPA’s 1994 Guidance document.  In both cases, EPA required that the pollutants for which the permit authority has not established limits or other permit conditions or that were not identified as present but which are constituents of wastestreams, operations or processes had to be “specifically” or “clearly” identified in writing and contained in the administrative record which is available to the public.”  Id. at 2-3.  

Thirteen years later, in Piney Run Pres. Ass’n v. City Comm’rs, 268 F.3d 255 (4th Cir. 2001), the Fourth Circuit held that the permit shield applies to discharges of pollutants not listed in a permit as long as the permittee had adequately disclosed the unlisted pollutants  to the permitting authority.  If the discharger, however, “has not adequately disclosed the nature of its discharges to permit authorities, and as a result thereof the permitting authorities are unaware that unlisted pollutants are being discharged, the discharge of unlisted pollutants has been held to be outside the scope of the permit.”    

            The Piney decision held the day for 13 years with no significant permit shield decisions in the interim. 

Times Are Changing.  After more than a decade of dormancy, the scope of the permit shield is now being tested.  In 2013 and 2014, the DOJ on behalf of EPA has filed – under very quick time frames – two briefs as amici curiae addressing NPDES individual and general permits and providing a more nuanced interpretation of Section 402(k).  DOJ now takes the position that a NPDES permit can shield its holder from liability only where the permit holder (1) complies with the express terms of the permit and with the EPA/State permit application rules; and (2) the permit holder does not make a discharge of pollutants that was not within the reasonable contemplation of the permitting authority at the time the permit was granted.  DOJ made clear that any reliance on prong three from the 1995 EPA guidance “is misplaced” because, in the government’s view, the third prong of the guidance deals with  an entirely different situation – namely, it is intended to cover pollutants where there is no affirmative duty to disclose them during the permit application but where, nonetheless, the applicant has made a complete and adequate disclosure with respect to constituents of wastestreams, operations, or process” that “are clearly identified in writing and contained in the administrative record.  Southern Appalachian Mountain Stewards v. A&G Coal Corp., Case No. 13-2050 (4th Cir.), DOJ Brief at 27.

            Then, earlier this year, the Fourth Circuit issued a sharply-worded decision in  Southern Appalachian  Mountain Stewards v. A&G Coal Corp. upholding a lower court’s decision that A&G was not entitled to the permit shield because nowhere in the NPDES application did A&G state that it would be discharging selenium.  The Fourth Circuit did an about face from its decision in Piney based on upon DOJ’s amicus brief and its new disjunctive test, and held that unlike in Piney,  A&G did not disclose the unlisted pollutant adequately and, thus the permit shield was not available. 

            There are two cases pending before the Sixth and the Ninth Circuits that will address the scope of the permit shield.   The Sixth Circuit case – Sierra Club v. ICG Hazard, Inc. – was argued in April, 2013, and the Ninth Circuit case -- Alaska Community Action on Toxics v. Aurora Energy Services, LLC and Alaska Railroad Corp. --  has just recently concluded the briefing process.  DOJ has filed an amicus brief in the Alaska Community Action case which is substantially similar to the one submitted in the A&G Coal litigation.

            Once these decisions are rendered, there may well be a circuit split giving the Supreme Court the opportunity to become the final arbiter of the scope and meaning of Section 402(k)’s permit shield.

Grant of Certiorari in Greenhouse Gas Regulation Litigation: Limited But Important

Posted on October 30, 2013 by David Buente

Of the 21 separate questions presented in the 9 petitions for writ of certiorari filed in the U.S. Supreme Court in Utility Air Regulatory Group et al. v. Environmental Protection Agency et al., challenging nearly every aspect of the Environmental Protection Agency’s recent greenhouse gas regulations—from the initial “endangerment” finding to the restriction on motor vehicle emissions to the stationary-source permitting requirements—the Court granted review of only a single issue:  “[w]hether [EPA’s] regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.”  Several commentators have interpreted this decision (reported in a prior post by Theodore Garrett) as an implicit affirmation of EPA’s regulatory regime, insofar as the Court chose not to address some of the broader challenges to the agency’s basic authority to regulate greenhouse gas emissions under the Clean Air Act.  But, whatever implications might be drawn from the Court’s decision not to grant review of certain issues, far more telling is the Court’s deliberate rewriting of the question presented, narrowly tailored to address the validity of the stationary-source permitting regulations.

Those regulations rest on an exceedingly questionable interpretation of the Clean Air Act.  The stationary-source provisions of the Act require any industrial facility that emits an “air pollutant” in “major” amounts—defined by the statute as 250 or more tons of the pollutant per year—to obtain pre-construction and operating permits from the local permitting authority.  42 U.S.C. § 7475.  EPA acknowledges that it would be “absurd” to apply these provisions by their terms to sources of greenhouse gas emissions, since nearly every business in the country (including even small commercial enterprises and residential facilities) emit greenhouse gases at more than 250 tons per year, and the agency can offer no reason why the statute should not be interpreted instead to apply only to the large industrial facilities that emit “major” amounts of a pollutant otherwise subject to regulation under the permitting provisions—i.e., one of the so-called “criteria pollutants” for which a national ambient air quality standard has been issued.  Nevertheless, EPA has interpreted the statute to apply to sources of greenhouse gas emissions and, to address the acknowledged “absurd results” created thereby, has decided that for these purposes the threshold for a “major” emissions source should be increased from 250 tons per year—as stated in the statute—by 400-fold, to 100,000 tons per year.  The agency has, in other words, literally rewritten the express terms of the statute in order to justify its preferred interpretation.

The dissenting judges in the D.C. Circuit severely criticized the result.  That is most likely the reason the Supreme Court granted review of the case, to correct the agency’s  interpretation of the Act and ensure that neither EPA nor other agencies attempt to redo legislative power in this way in the future.  Whether or not the limited nature of the certiorari grant can be viewed as an approval of EPA’s authority to regulate greenhouse gases from mobile sources, it almost certainly reflects suspicion—if not disapproval—of the agency’s stationary-source regulations.  The definitive answer should come by June 2014, when the Court is expected to rule. 

FRACKING FRACAS IN A LOCAL LABYRINTH

Posted on February 19, 2013 by David Buente

Oil and gas development has traditionally been regulated by the states, and the majority of the states with viable shale reserves have adopted laws or regulations that directly address hydraulic fracturing.  However, several local governments have responded to concerns over potential health and environmental impacts by banning hydraulic fracturing within their jurisdictions.  To date, local bans have been enacted in Colorado, Maryland, New Jersey, New York, North Carolina, Ohio, Pennsylvania, and West Virginia.  In several cases these local bans have been challenged as being preempted by comprehensive state regulation of oil and gas development.  While there is very little appellate case law addressing the legality of local bans, two preemption cases are currently on appeal in New York.  Norse Energy Corp. USA v. Town of Dryden, No. 2012-1015 (N.Y. App. Div.); Cooperstown Holstein Corp. v. Town of Middlefield, No. 2012-1010 (N.Y. App. Div.).  In each case, the local trial court upheld a local ban on hydraulic fracturing, finding that preemption language in the state’s Oil, Gas, and Solution Mining Law (“OGSML”) did not apply to local land use regulations. 

Appellant natural gas developers rely primarily on the OGSML’s preemption provision, arguing that its broad language was intended to preempt all local ordinances and regulations related to oil and gas development unless they are directed toward local roads or real property taxes.  They also emphasize the broad scope of DEC’s oil and gas regulations which go beyond regulating how oil and gas development is conducted and also address spacing requirements and other limitations on where oil and gas development can occur.  Thus, they assert that any local ordinance that limits where hydraulic fracturing can occur is superseded by the OGSML.  The natural gas developers also argue that under implied preemption principles and New York’s constitutional limits on home rule authority, local governments cannot prohibit hydraulic fracturing because such regulations are in direct conflict with the OGSML’s provisions that dictate where oil and gas development can occur.  Finally, the natural gas developers argue that the trial court’s reliance on supersedure provisions from other statutes was misplaced due to key differences in the language of the supersedure provisions as well as the relatively broader scope of DEC’s regulatory authority under the OGSML.   

In contrast, the towns of Dryden and Middlefield assert that local prohibitions on hydraulic fracturing can be harmonized with the OGSML and its preemption provision.  They argue that the local bans on hydraulic fracturing were not enacted for the purpose of regulating natural gas development, but instead are part of comprehensive land use plans designed to protect the public health, safety, and general welfare of the local community.  Because the purpose of the prohibitions are not to “regulate” natural gas development, the towns contend that the prohibitions are not subject to the OGSML’s preemption provision.  Instead, they argue that such local bans can be harmonized with the OGSML by limiting the OGSML’s well spacing and setback provisions to those areas where oil and gas development is otherwise permitted.  Further, the towns argue that the trial court properly relied on earlier cases interpreting the supersedure provisions of the Mined Lands Reclamation Law (“MLRL”).  The towns assert that the supersedure provisions in the MLRL and OGSML are substantially similar and, therefore, should be given similar effect.  Thus, the towns assert that the prior cases that upheld local ordinances banning mining practices that were subject to regulation under the MLRL are binding precedent here. 

Oral argument has been scheduled for March 21, 2013 and a final decision is not expected for several months, at the earliest.  However, these cases will be closely watched in other jurisdictions where local bans on hydraulic fracturing have been enacted and where additional litigation is expected.  Given the diversity among state laws addressing both home rule authority and oil and gas development, the legality of local bans on hydraulic fracturing is likely to remain a hotly debated issue for several years to come, particularly as oil and gas development using hydraulic fracturing continues to expand to new shale reserves around the country.

Update on Climate Change Tort Litigation

Posted on June 29, 2012 by David Buente

The body of caselaw rejecting climate change tort claims seeking judicially-imposed restrictions on greenhouse gas emissions, which I reviewed in a prior post on January 3, 2012, continues to grow.  That post predicted that (i) none of these suits were likely to succeed, given the U.S. Supreme Court’s holding last year in Connecticut et al. v. American Electric Power Co. et al. (“AEP”) that common law “nuisance” claims seeking such restrictions are displaced by the Clean Air Act, but nevertheless (ii) plaintiffs would continue to repackage and pursue the claims in different courts under different common law labels.  Both predications have proved accurate.

Two of the cases summarized in that post, Comer et al. v. Murphy Oil USA et al. and Alec L. et al. v. Jackson et al., have since been dismissed by the presiding district courts.  In Comer, where a group of Mississippi landowners sued scores of national electric utilities and other companies for damages caused by Hurricane Katrina, claiming that the defendants’ greenhouse gas emissions constituted a common law “nuisance,” the court held that the claims were preempted by the Clean Air Act and, further, that they presented non-justiciable political questions and plaintiffs lacked standing.  In Alec L., where a group of plaintiffs sued several federal agencies under the “public trust” doctrine, seeking an order mandating greenhouse gas regulations, the court likewise held that the claims could not be recognized as a matter of federal law and, in any event, would be displaced by the Clean Air Act.  A third case, Native Village of Kivalina v. ExxonMobil Corp. et al., remains pending before the Ninth Circuit, following the district court’s dismissal of the complaint on grounds that the “nuisance” claims were non-justiciable and plaintiffs lacked standing. 

In addition, “public trust” claims have now been filed in nearly all fifty states.  Some of these take the form, like Alec L., of common law tort litigation, with non-profit groups and individuals suing state officials and agencies in state courts, seeking injunctive orders directing the promulgation of greenhouse gas regulations.  Several of these cases have already been dismissed, including in Alaska and Oregon (both on political question and justiciability grounds); none has proceeded past the pleading stage.  Other claims take the form of administrative petitions, asking the relevant state agencies to issue greenhouse has regulations.  Many of these petitions, in more than 30 states so far, have already been denied; none has been granted.

The unanimous rejection of these claims should presumably, at some time, begin to deter the filing of further climate change litigation.  But that tipping point does not seem yet to have occurred.  At least for the immediate future, it appears likely that plaintiffs will continue to use – and, to many minds, distort – the common law tort system to pursue the political goal of greenhouse gas regulation. 

Alec L. and the Tortious Development of Climate Change Litigation

Posted on January 3, 2012 by David Buente

For some advocates of greenhouse gas regulation, tort law has become the primary vehicle to achieve their goal.  Dissatisfied with their progress in the political branches, they’ve begun presenting their claims to courts as tort lawsuits.  When the claims are rejected, they repackage them in different common-law wrappings and sue again. 

The first of these suits was Connecticut et al. v. American Electric Power Co. et al. (“AEP”) (dismissed by the U.S. Supreme Court earlier this year), in which several States and land trusts sought to declare greenhouse gas emissions a common law “nuisance” and secure an injunction capping emissions from a small group of national electric utilities at levels the plaintiffs deemed “reasonable.”  Next came Comer et al. v. Murphy Oil USA et al., where a group of Mississippi landowners sued the same utilities, and scores of other companies, for damages caused by Hurricane Katrina, claiming that the defendants’ greenhouse gas emissions constituted a common law “nuisance,” a “trespass,” and “negligence.”  (After dismissal by the district court and Fifth Circuit, the plaintiffs simply refiled the case—motions to dismiss again are in briefing).  Next, in Native Village of Kivalina v. ExxonMobil Corp. et al., an Alaskan village relied on many of these same common law theories, with allegations of a “conspiracy” added for good measure, suing many of the same defendants for costs the village would purportedly incur protecting itself from storms and other risks they attributed to climate change.  (The district court’s dismissal was recently argued to the Ninth Circuit.)  While courts have thus far rejected all of these suits at the pleading stage, the complaints reflect a continuing trend towards regulation by litigation, in which individual groups of plaintiffs endeavor to advance policy goals through common law actions.

The most recent case is Alec L. et al. v. Jackson et al.  Casting aside even the pretense of a traditional tort case, where one party seeks relief for damages caused by another party’s conduct, the plaintiffs in Alec L. are suing five federal Executive Branch agencies (the Environmental Protection Agency, Department of Defense, Department of the Interior, Department of Commerce, and Department of Agriculture), and explicitly seek an order directing those agencies to promulgate regulations addressing greenhouse gas emissions.  Relying on the “public trust doctrine,” an archaic common law concept rarely cited in modern court decisions, the plaintiffs assert that the federal government holds the atmosphere “in trust” for the public, and that these agencies therefore have a fiduciary obligation to protect the atmosphere from greenhouse gas emissions.  In particular, they ask the court to order the agencies to impose immediate and drastic restrictions on greenhouse gas emissions in this country (6% annually), with the ultimate goal of virtually eliminating the use of conventional fuels by the end of the century.

There is no reason to think that the claims in Alec L. will fare any better than those in the other tort cases discussed above.  All of these claims seek to impose liability for global climatic conditions that are attributable (if at all) to greenhouse gas emissions from billions of sources around the planet over the course of centuries, not to any particular, small group of defendants.  Moreover, they would all put a federal court in the position of making fundamental policy determinations regarding the proper regulatory approach to issues of national and international importance, ordinarily reserved for the political branches.  Indeed, in this respect, the claims in Alec L. are even more difficult to rationalize than those in AEP, as Alec L. asks the court to commandeer and control agencies of the federal government in a manner directly contrary to pre-existing statutory mandates and executive directives.  However, what Alec L. does show is that advocates for greenhouse gas regulation, undiscouraged by their lack of reception at the Supreme Court earlier this year, will continue re-wrapping their claims to send them to more courts.