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On the Borderline: Pakootas, NAFTA, and the Problem of Transboundary Pollution

The plaintiffs in Pakootas v. Teck Cominco faced a particularly challenging legal problem: not only was a large corporation polluting their local environment, but the corporation was located in Canada, while the plaintiffs lived in the United States. Although a variety of environmental agreements have been struck between the United States and its border neighbors over the last two hundred years, the plaintiffs chose not to invoke any of these (relatively toothless) compacts. Instead, they took their case to the courts. In 2018, the Ninth Circuit held that United States courts had properly exercised personal jurisdiction over the Canadian defendant—a success for the plaintiffs, and one that future plaintiffs in transboundary pollution cases may be able to use to their advantage. However, personal jurisdiction is far from the only hurdle facing plaintiffs in transboundary pollution lawsuits. This Note argues that the United States should address transboundary pollution through an enforceable multilateral agreement rather than leaving such cases to domestic courts; identifies the North American Free Trade Agreement as a particularly promising forum for such an agreement; and briefly sketches what such a solution could look like.

Feb 16, 2021
Natalie Collins

Unstable Elements: What the Fractured Decision in Virginia Uranium Means for the Future of Atomic Energy Act Preemption

In Virginia Uranium v. Warren, the Supreme Court wrestled with the question of whether Virginia was preempted from banning uranium mining with the goal of preventing milling and tailings disposal, activities that can only be regulated by the Federal Nuclear Regulatory Commission. While the Court upheld Virginia’s ban, it did so in a fractured decision that reveals divisions about obstacle preemption, a category of preemption that posits state laws that interfere with the objectives of federal statutes are preempted. This doctrine has been criticized for its vagueness and has created unlikely alliances between conservative and liberal Justices, who are unlikely to accept obstacle preemption claims. The outcome in Virginia Uranium suggests that the current Court is particularly unlikely to be receptive to obstacle preemption claims. This Note concludes that this reticence provides an opportunity for states to pass environmentally protective policies beyond what was previously thought possible in the field of nuclear energy.

Feb 16, 2021
Mary Rassenfoss

Urgenda: A How-To Guide for Enforcing Greenhouse Gas Emission Targets by Protecting Human Rights

The Supreme Court of the Netherlands ended 2019 as the first court in history to establish that protection from dangerous climate change is a human right thereby requiring the reduction of greenhouse gas emissions to align with internationally recognized climate targets. The State of the Netherlands v. Urgenda Foundation establishes that the European Convention on Human Rights (ECHR) requires the Netherlands to take adequate action to prevent the real and imminent risk of dangerous climate change. Specifically, the Urgenda decision enforces a national goal to reduce greenhouse gas emissions by at least 25 percent by 2020. This ruling adds teeth to several climate-focused reports and treaties such as the Intergovernmental Panel on Climate Change (IPCC) 2007 Fourth Assessment Report (AR4), the Kyoto Protocol, and the Doha Amendment. While the ECHR applies to all European nations, the Dutch Supreme Court’s interpretation of the ECHR in Urgenda is not binding outside the Netherlands. The European Court of Human Rights creates binding interpretations and precedent of the ECHR. Because the Urgenda decision was cemented in the Court of Human Rights’ case law and precedent, however, the decision may serve as a strategic template for how to achieve similar results using the ECHR to hold national governments legally accountable to climate change mitigation targets. For non-European nations outside the scope of these laws, Urgenda may provide a bode of confidence that there may yet be avenues available in the fight against dangerous climate change.

Feb 16, 2021
Naomi Spoelman

The California Supreme Court on the Significance of Emissions under CEQA: Read Between the Lines

For California to meet its climate goals, there must be swift, bold infrastructure changes that facilitate decarbonization of the transportation sector. The California Supreme Court’s decision in Cleveland National Forest Foundation v. San Diego Association of Governments (Cleveland) is a mixed bag for those who would use the California Environmental Quality Act (CEQA) to achieve such infrastructure changes. The case originated in 2011 after the San Diego Association of Governments (SANDAG) prepared its 2050 Regional Transportation Plan (RTP) and, pursuant to CEQA, accompanying draft Environmental Impact Report (EIR), prompting Cleveland National Forest Foundation and others to broadly challenge the EIR’s sufficiency. In 2017, the California Supreme Court took up and decided one, narrow issue in Cleveland: whether the EIR adequately discussed how the RTP’s projected emissions departed from California Executive Order S-03-05 (the Order) and its 2050 goal of reducing total state greenhouse gas emissions 80 percent below 1990 levels.

Feb 16, 2021
Alex Mesher