Congressional Research Service Report Released: Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future
The Congressional Research Service (CRS), the public policy research arm of Congress, just issued the report Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future (Oct. 25, 2012). The 26-page report authored by Robert Meltz discusses the following:
surveys existing law for legal issues that have arisen, or may arise in the future, on account of climate change and government responses thereto.
threshold of many climate-change-related lawsuits are two barriers—whether the
plaintiff has standing to sue and whether the claim being made presents a political
question. Both barriers have forced courts to apply amorphous standards in a
new and complex context.
mitigate climate change—that is, reduce greenhouse gas (GHG) emissions—have spawned
a host of legal issues. The Supreme Court resolved a big one in 2007—the Clean
Air Act (CAA), it said, does authorize EPA to regulate GHG emissions. Quite
recently, a host of issues raised by EPA’s efforts to carry out that authority
were resolved in the agency’s favor by the D.C. Circuit. Another issue is
whether EPA’s “endangerment finding” for GHG emissions from new motor vehicles
will compel EPA to move against GHG emissions under other CAA authorities. Still
other mitigation issues are (1) the role of the Endangered Species Act in
addressing climate change; (2) how climate change must be considered under the
National Environmental Policy Act; (3) liability and other questions raised by
carbon capture and sequestration; (4) constitutional constraints on land use
regulation and state actions against climate change; and (5) whether the public
trust doctrine applies to the atmosphere.
harms allegedly caused by climate change has raised another crop of legal issues.
The Supreme Court decision that the CAA bars federal judges from imposing their
own limits on GHG emissions from power plants has led observers to ask: Can
plaintiffs alleging climate change harms still seek monetary damages, and are
state law claims still allowed? The two rulings so far say no to the former,
but split on the latter. Questions of insurance policy coverage are also likely
to be litigated. Finally, the applicability of international law principles to
climate change has yet to be resolved.
shortages thought to be induced by climate change likely will lead to
litigation over the nature of water rights. Shortages have already prompted
several lawsuits over whether cutbacks in water delivered from federal projects
effect Fifth Amendment takings or breaches of contract.
Sea level rise
and extreme precipitation linked to climate change raise questions as to (1)
the effect of sea level rise on the beachfront owner’s property line; (2)
whether public beach access easements migrate with the landward movement of
beaches; (3) design and operation of federal levees; and (4) government failure
to take preventive measures against climate change harms.
adaptation responses to climate change raising legal issues, often property
rights related, are beach armoring (seawalls, bulkheads, etc.), beach
renourishment, and “retreat” measures. Retreat measures seek to move existing
development away from areas likely to be affected by floods and sea level rise,
and to discourage new development there.
disasters to which climate change contributes may prompt questions as to
whether response actions taken in an emergency are subject to relaxed requirements
and, similarly, as to the rebuilding of structures destroyed by such disasters
just as they were before.
immigration and refugee law appear not to cover persons forced to relocate
because of climate change impacts such as drought or sea level rise.
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