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Judicial Remedies for Climate Disruption

This Article, adapted from the Climate Science and Law for Judges Curriculum, examines the status and viability of judicial remedies in climate change litigation. It focuses on climate cases that are seeking science-based remedies specifically related to climate mitigation (actions to reduce greenhouse gas emissions or draw down atmospheric carbon) and climate-change adaptation (actions to reduce the negative impacts of climate disruption on human and natural communities).

West Virginia, the Inflation Reduction Act, and the Future of Climate Policy

In June 2022, in West Virginia v. Environmental Protection Agency, the U.S. Supreme Court announced that on “major questions” the U.S. Congress must legislate with far more clarity and specificity than previously demanded. The Court held the U.S. Environmental Protection Agency (EPA) may regulate power plant carbon emissions in traditional ways, but the novel approach taken in the Clean Power Plan required clearer authorization than Congress had provided. Six weeks later, Congress enacted the Inflation Reduction Act (IRA).

88 FR 41983

United States v. Messer LLC, No. 5:23-cv-0023-JPB (N.D.W. Va. June 22, 2023). A settling CWA defendant that violated NPDES permit numeric effluent limits with respect to wastewater discharges from its industrial gas manufacturing plant in New Cumberland, West Virginia, must perform injunctive relief, including operation of a newly installed copper treatment system by certain deadlines, implementation of a tiered effluent limit response plan, and revision and routine performance of stormwater best management practice measures; and pay a $1.9 million civil penalty.

88 FR 41262

FERC directed the North American Electric Reliability Corporation to develop a new or modified reliability standard to address reliability concerns pertaining to transmission system planning for extreme heat and cold weather events that impact the reliable operation of the bulk-power system.

88 FR 40868

United States v. Suffolk, County of, No. 23-CV-4369 (E.D.N.Y. June 14, 2023). Settling SDWA defendants must close prohibited large capacity cesspools and motor vehicle waste disposal wells in accordance with a specified timetable in connection with violations of relevant regulations.

88 FR 37878

EPA Region 4 proposed to reissue the NPDES general permit for the outer continental shelf of the Gulf of Mexico for discharges in the offshore subcategory of the oil and gas extraction point source category.

88 FR 37994

EPA finalized clarifications to its NPDES Stormwater Phase II regulations due to recent changes made by the Census Bureau, clarifying that the designation criteria for small municipal separate storm sewer systems will remain the same.

88 FR 37518

CEQ requested input to inform the development of an Ocean Justice Strategy, which will describe the vision, goals, and high-level objectives for coordinating and guiding ocean justice activities across the federal government.

88 FR 36349

The White House Office of Science and Technology Policy notified the Earth Observations community that a draft of the congressionally-mandated National Plan for Civil Earth Observations will be released for a short national review period in Summer 2023.

Climate Compliance Versus Action 2023

The Inflation Reduction Act and Federal Buy Clean Initiative have each inspired states and municipalities to regulate embodied carbon (Scope 3) using “Buy Clean” policies and legislation. Reducing embodied carbon has become mainstream, and environmental product declarations (EPDs) have surfaced as the tool. Are EPDs alone enough? Is the compliance timeline sufficient? On February 1, 2023, the Environmental Law Institute hosted a panel of experts that provided an update on Buy Clean policy, green funding, the status of carbon emissions, and a primer on EPDs.