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Volume 40, Issue 9 — September 2010


Cap and Trade Under the Clean Air Act?: Rethinking §115

by Hannah Chang

Editors' Summary:

Section 115 of the CAA, addressing international air pollution, has been widely dismissed as a viable avenue for mitigation of GHGs because of a misplaced assumption that NAAQS must be established for GHGs before §115 authority can be exercised for GHGs. This Article explores the statutory language and legislative history of §115 to refute this conventional view, and argues that §115 can play a role in facilitating the establishment of a cap-and-trade program for GHGs without the establishment of NAAQS for GHGs.

The Evolving Path Toward Achieving Environmental Justice for Native America

by James M. Grijalva and Daniel E. Gogal

Editors' Summary

A lack of fully functioning regulatory programs has long been the primary obstacle to achieving environmental justice in Native America. EPA recognized that challenge some two decades before the environmental justice movement took hold, and has since built an Indian program based on initial federal implementation where feasible, with aspirations for later program assumption by Indian tribal governments. Much work on the latter goal remains, but for tribes that have assumed program roles, a new environmental justice issue has arisen: ensuring the parties affected--tribal citizens, tribal grassroots environmental organizations and others within the jurisdiction of tribal programs--receive fair treatment and have meaningful opportunities for influencing tribes' environmental decisionmaking processes. Collaborative approaches for resolving tensions that arise at times between tribal government decisionmaking and community desires for greater environmental protection may be the best means for preserving both the environment and the legitimacy--political and cultural--of tribal governments.

Federal Circuit's Economic Failings Undo the <i>Penn Central</i> Test

by William W. Wade, Ph.D.

Editors' Summary


Faulty understanding of standard economic and financial analysis within regulatory takings cases continues to set this jurisprudence apart from standard tort cases, where state of the art economic methods typically are applied within both liability and damages phases of the trial. Clear examples of economic nonsense can be found in three recent decisions by the U.S. Court of Appeals for the Federal Circuit that ignored competent economic evidence within the Penn Central test to overturn temporary takings decisions. The Federal Circuit's flip-flop between its 2003 decision in Cienega Garden VIII and its more recent decisions in Cienega Gardens X, Rose Acre Farms, and CCA reveals both misapplication of "parcel as a temporal whole" from Tahoe Sierra, a Lucas case, to Penn Central cases and faulty use of valuation methods appropriate for real property to evaluate the severity of economic impact of temporary business income losses. Confused legal theories cannot be shoehorned into standard economic methods essential to evaluate the Penn Central test.

(If) Things Fall Apart: Searching for Optimal Regulatory Solutions to Combating Climate Change Under Title I of the Existing CAA if Congressional Action Fails

by Timothy J. Mullins and M. Rhead Enion

Editors' Summary:

If legislative prospects for a national climate change bill fail, EPA retains a number of options under the existing CAA to create a cap-and-trade program that could, in many ways, mimic a congressionally created regime. Under Title I in particular, EPA could turn to the NAAQS program (§§107-110) or the new source performance standards (NSPS) and existing source regulation (§111(b) and (d)). Various legal constraints, however, may be imposed upon these different statutory hooks. Examining the interplay between these regulations suggests that EPA may need to move in an incremental fashion, given the uncertain statutory authority and legislative process.

International Greenhouse Gas Offsets Under the Clean Air Act

by Nathan Richardson

Editors' Summary

Offsets, and in particular international offsets, have been advanced as an important tool in climate policy, capable of significantly reducing the costs of emissions reductions. As attention turns to the existing CAA as a potential vehicle for general reduction of GHG emissions, an important question is whether regulation under the statute is compatible with international offsets. Certain regulatory programs under the CAA are likely candidates for GHG regulation, but many of them are legally incompatible with international offsets. Those programs that might permit use of international offsets have other problems that make them unpopular choices for GHG regulation. To the extent that CAA regulation depends on state action, state law and constitutional limitations appear to offer more barriers than opportunities for use of international offsets. These conclusions have implications for the costs and flexibility of climate policy under the CAA.


Challenges Plaintiffs Face in Litigating Federal Common-Law Climate Change Claims

by Kevin A. Gaynor, Benjamin S. Lippard, and Margaret E. Peloso

Since 2005, numerous plaintiffs have attempted to hold both the energy industry and vehicle manufacturers liable for the damages they have experienced and will experience as a result of climate change. Proceeding under common-law theories, particularly nuisance, these plaintiffs generally allege that the defendants they sue are major contributors to greenhouse gas (GHG) emissions, which ultimately lead to climate change and a myriad of associated harms ranging from increased coastal erosion in Alaska and Massachusetts to decreased snowpack in California. While the U.S. Environmental Protection Agency's (EPA's) recent regulatory actions may preempt claims under federal common law, there is nothing in the Clean Air Act (CAA) that prevents future tort claims under state law. Consequently, common-law climate change litigation is likely to continue in the coming years. This Article addresses the challenges that common-law climate change plaintiffs will face in litigating their claims, particularly with respect to standing and justiciability, proof of causation, and apportionment of damages.

I. Getting Into Court: Standing and Justiciability

An initial hurdle for all climate change plaintiffs is the satisfaction of both the constitutional and prudential standing requirements. Plaintiffs must demonstrate both that they have met the minimum threshold requirements of Article III of the U.S. Constitution and that none of the prudential standing doctrines are implicated by their claims. Thus far, the majority of common-law climate change litigation in federal court has focused on this latter issue, as courts struggle to determine whether climate change claims present nonjusticible political questions. This section briefly explains the requirements to obtain standing and then summarizes the analysis of the courts that have considered common-law climate change claims.

China and Climate Change: From Copenhagen to Cancun

by Paul G. Harris

There was a palpable sense of expectation around the world that the December 2009 Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC) held in Copenhagen, Denmark, would result in a binding agreement among governments to substantially reduce pollution-causing climate change. In contrast to that expectation, the outcome of the conference was little more than voluntary agreement on principles--albeit important ones, in the form of the Copenhagen Accord--and general consensus that a binding agreement might be achievable in time for the next Conference of the Parties in Cancun, Mexico, in December 2010. Many observers, and indeed some government officials in the West, blamed China for the failure of the Copenhagen meeting, in particular for China's opposition to a binding agreement to reduce global emissions of greenhouse gases (GHGs) by 50% by mid-century. China was especially strident in opposing any binding cuts in GHGs for developing countries, although it pledged voluntary efforts to improve its own energy efficiency. Whether China is to blame for the outcome at Copenhagen remains subject to debate, and of course the Chinese strongly deny the accusation. What is beyond question is that China is now the largest national source of pollutants causing global warming, thus making its policies and actions central to efforts by governments, industry, and individuals to limit and cope with climate change.