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Volume 39, Issue 3 — March 2009


Getting Back to Basics: Why Nuisance Claims Are of Limited Value in Shifting the Costs of Climate Change

by Jim Gitzlaff

Editors' Summary

Climate change is a global problem to which everyone contributes and from which everyone suffers in unequal proportions. Therefore, common-law nuisance is not a strong theory for plaintiffs to use to shift their costs because any victim's private interests will be widely shared. Should the alleged injuries suffered by these disparate people be subject to private damages suits, and how much interference with strategic industries are we willing to tolerate? Clearly there comes a point where so many people are interested in the outcome that a political solution is preferred over a judicial one. Nuisance claims mistakenly take the analysis in precisely the wrong direction.

Global Warming: The Ultimate Public Nuisance

by Matthew F. Pawa

Editors' Summary:

In 2004, eight states filed suit against five major U.S. electric power companies. Together, these companies contribute 25% of the United States' total carbon dioxide emissions. The states' complaint, based on the common law of public nuisance, alleged that global warming poses threats of severe harm to human health from increased heat and air pollution. With the case now on appeal in the U.S. Court of Appeals for the Second Circuit, the legal community waits for insight into the effectiveness of using common law public nuisance to combat global warming.

The ECOS Proposal for Expanded State Assumption of the CWA

by Lance D. Wood

Editors' Summary

The Environmental Council of the States (ECOS) recently proposed that Clean Water Act §404 be amended to "remove the barriers" to state assumption of the §404 program. ECOS' specific proposals are unnecessary, unwise, and unworkable. The best and most reliable approach for protecting aquatic resources involves a vigorous federal §404 program along with effective state use of state §401 water quality certifications, Coastal Zone Management Act consistency certifications, and supplemental state law to fill in any gaps in the federal program.


Wasting Away: Why Federal Environmental Statutes Are Currently Unable to Regulate Radio Frequency Identification Chip Disposal and Prevent Widespread Environmental Harm

by B Jennifer Lemieux

Imagine a world in which retailers and manufacturers know where every consumer item is at all times. From manufacture to the point of sale, every consumer item can be tracked individually along the supply chain. Out-of-stocks are virtually eliminated. Imagine finding every item on your list, every time you go into a store--any store. Would you spend less? According to the retail industry you would. Retailers claim that radio frequency identification (RFID) technology will transform the way business is done and the shopping experience itself by reducing out-of-stock merchandise and tracking inventory throughout the supply chain. Accordingly, shoppers will pay less for items, because the cost of doing business will be less.

RFID technology allows retailers to track manufacturers' items from a distribution center, through transit, and on to individual stores. Once at the store, RFID tells managers how many items are in stock and exactly where those items are, right down to the particular shelf the item is sitting on. To that end, retailers are promoting "item-level tagging," where every item's packaging is affixed with an RFID tag.

McDonald v. Sun Oil: The Ninth Circuit's Constitutionally Questionable Expansion of CERCLA's Toxic Tort Discovery Rule

by Peter E. Seley and Coral A. Shaw

When Congress enacted the Superfund Amendments and Reauthorization Act (SARA) in 1986, it included a provision to address what was perceived as a significant shortcoming in state law. Many states' statutes of limitation at the time began to run when a plaintiff was first injured, whether or not the plaintiff was aware of the injury or its cause. In the case of a long-latency disease, allegedly caused by past exposure to hazardous substances, the limitation period could expire long before the plaintiff was aware that he or she even had a claim.

Congress sought to address this shortcoming by using SARA to add a federal "discovery rule" to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980.4 The new provision added to CERCLA, in §309, ensured that state statutes of limitation would not begin to run until "the date the plaintiff knew (or reasonably should have known) that the personal injury or property damages... were caused or contributed to by the hazardous substance or pollutant or contaminant concerned." This federally required commencement date ensured that a plaintiff allegedly injured by exposure to hazardous substances would not be procedurally barred from bringing a claim before the plaintiff was aware of his or her injury and its cause.

Clean Water Act NPDES Water Transfer Issue: The Implications for the Water Supply and Water User Communities

by Lawrence R. Liebesman and Steve Kelton

The Clean Water Act (CWA) prohibits "the discharge of any pollutant" into waters of the United States, except as otherwise authorized under the Act. A "discharge of a pollutant" is defined as "any addition of any pollutant to navigable waters from any point source." The national pollutant discharge elimination system (NPDES) permit program regulates point source discharges of pollutants into waters of the United States. The issue of whether water transfers are subject to NPDES permit requirements has been surrounded by considerable controversy. The question is of particular concern to the water supply and user communities because transbasin transfers of water from one water body to another for municipal, agricultural, and commercial purposes, among other activities, are essential for meeting those needs.

The U.S. Environmental Protection Agency (EPA) first addressed this issue in 1975 with an interpretation stating that an NPDES permit was required when irrigation ditches discharge into navigable water, even if the irrigation ditches also qualify as navigable waters. The opinion was based on EPA's interpretation of the plain meaning and legislative intent of the CWA. However, that opinion dealt with a narrow issue and did not address transfers that merely convey navigable waters. The opinion also stated that to the extent the opinion could be interpreted to apply more broadly to water transfers, it was superseded by EPA's subsequent interpretations specifically addressing such transfers.


Equal Protection, Strict Scrutiny, and Actions to Promote Environmental Justice

by David F. Coursen

It once might have seemed that the federal policy of promoting environmental justice was on a collision course with limitations the Equal Protection Clause imposes on federal actions to benefit minorities. In February 1994, Executive Order (EO) 12898 directed federal agencies to take special steps to ensure environmental protection for low-income and minority communities. In June of the following year, the U.S. Supreme Court effectively outlawed using race in federal decisionmaking by subjecting such uses to strict judicial scrutiny, a standard so rigorous and demanding that it has been described as "strict in theory, fatal in fact."

No such collision occurred. Not only have there been no significant reported decisions applying strict scrutiny to government actions to promote environmental justice, but the U.S. Congress has enacted legislation mandating affirmative steps to ensure preferential treatment regarding financial assistance for minority communities. This Article discusses four reasons why federal actions to promote environmental justice are not subject to strict judicial scrutiny: (1) the EO applies to actions by executive branch agencies exercising the core governmental function of executing federal law, and Article III limitations on the judicial power preclude federal courts from applying strict scrutiny to other branches' performance of core governmental functions; (2) equal protection applies to governmental actions that "deprive" individuals of a "legally protected interest," but no individual has such an interest in a type or level of environmental protection; (3) environmental justice protects groups--"minority... or low income populations"--but equal protection is an individual, not a group right; and (4) a claimant challenging government action to promote environmental justice would likely be unable to establish standing to pursue such a claim.