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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).

Federal Environmental Justice Legislation and Regulations

With passage of the Inflation Reduction Act and Water Resources Development Act of 2022, the statutory landscape has changed to reflect the Biden Administration’s emphasis on environmental justice. On February 27, 2023, the Environmental Law Institute (ELI) and ELI’s Pro Bono Clearinghouse co-hosted a panel of experts who explored how communities can leverage the statutory changes that have taken place, what decisions have been left up to agencies, and how proposed legislation, like the Environmental Justice for All Act, will affect future environmental justice efforts.

88 FR 42136

DOI, acting through the Bureau of Ocean Energy Management, proposed to modify its criteria for determining whether oil, gas, and sulfur lessees, right-of-use and easement grant holders, and pipeline right-of-way grant holders may be required to provide bonds or other financial assurance above the current regulatorily prescribed base bonds to ensure compliance with their Outer Continental Shelf Lands Act obligations.

88 FR 41541

The Pipeline and Hazardous Materials Safety Administration proposed amendments to its hazardous materials regulations to require all railroads to generate in electronic form, maintain, and provide to first responders, emergency response officials, and law enforcement personnel, certain information regarding hazardous materials in rail transportation to enhance emergency response and investigative efforts.

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 39845

EPA seeks comment on implementation of a plan to ensure that farmworkers have access to bilingual pesticide labeling by December 2025 under the Pesticide Registration Improvement Act of 2022.

88 FR 39424

EPA seeks comment on the draft Cumulative Risk Assessment (CRA) Guidelines for Planning and Problem Formulation, which describe steps for the planning and problem formulation of CRAs and offer guidelines for when they could be appropriate.

88 FR 38861

EPA announced a proposed consent decree that resolves Center for Food Safety v. U.S. Environmental Protection Agency, No. 4:22-cv-6001-JST (N.D. Cal.), alleging the Agency unreasonably delayed responding to a petition for rulemaking, submitted to EPA on or around July 10, 2017, relating to the revision of testing requirements of pesticides prior to registration.

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.