Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future

Robert Meltz
Legislative Attorney

This report surveys existing law for legal issues that have arisen, or may arise in the future, on account of climate change and government responses thereto.

At the 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.

Efforts to 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.

Liability for 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.

Water 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.

Other 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.

Natural 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.

Finally, immigration and refugee law appear not to cover persons forced to relocate because of climate change impacts such as drought or sea level rise.


Date of Report: November 15, 2012
Number of Pages: 35
Order Number: R42613
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Pesticide Registration and Tolerance Fees: An Overview

Robert Esworthy
Specialist in Environmental Policy

The Pesticide Registration Improvement Extension Act of 2012 (PRIA 3; P.L. 112-177), enacted September 28, 2012, amended the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA) to reauthorize and revise, through FY2017, the collection and use of fees to enhance and accelerate the U.S. Environmental Protection Agency’s (EPA’s) pesticide licensing (registration) activities. Among other provisions, P.L. 112-177 increases the amounts of certain fees, revises the schedule for fee assessment and review deadlines for reviewing specific registration decisions, modifies provisions for small business reductions of fees, adds provisions for the enhancement of pesticide decision information tracking systems and for initial content preliminary screening activities, and eliminates pre-PRIA reregistration fee (1988) authorities. The Pesticide Registration Improvement Renewal Act (PRIA 2; P.L. 110-94), enacted October 9, 2007, and which was set to expire at the end of FY2012, reauthorized and revised fee collection provisions first established under the Pesticide Registration Improvement Act (PRIA 1), included in the Consolidated Appropriations Act, 2004 (P.L. 108-199), enacted January 23, 2004.

EPA is responsible for regulating the sale, use, and distribution of pesticides under the authority of two statutes. FIFRA (7 U.S.C. §136-136y), a licensing statute, requires EPA to review and register the use of pesticide products. FFDCA (21 U.S.C. §346a) requires the establishment of maximum limits (tolerances) for pesticide residues on food in interstate commerce. EPA was also required to reevaluate older, registered pesticides (i.e., “reregistration” for pesticides registered prior to 1984, and more recently, “registration review”) and to reassess existing tolerances to ensure they meet current safety standards. Although U.S. Treasury revenues cover much of the costs for administering these acts, various fees paid by pesticide manufacturers and other registrants have supplemented EPA appropriations for many years as a means intended to, in part, increase the pace of the agency’s activities under FIFRA and FFDCA.

In March 2012, EPA reported the completion of 1,554 pesticide registration-related decisions subject to PRIA 2 during FY2011, for a total of 10,591 decisions since the enactment of PRIA 1 in 2004. For FY2011, EPA reported expending $14.3 million of the $19.0 million available revenues comprised of $11.6 million in net receipts of new registration service fees collected in FY2011 and $7.4 million carried forward from FY2010. Expenditures decreased by 21% in FY2011 compared to $18.2 million in FY2010, primarily as a result of reductions in PRIA receipts received in FY2011. FY2010 net receipts of new registration fees were $18.6 million.

Authority for collecting pesticide fees dates back to the 1954 FFDCA amendments (P.L. 518; July 22, 1954), which, as passed, required the collection of fees “sufficient to provide adequate service” for establishing maximum residue levels (tolerances) for pesticides on food. Authority to collect fees was expanded with the 1988 FIFRA amendments (P.L. 100-532). The 1996 amendments to FIFRA and FFDCA, or the Food Quality Protection Act (FQPA; P.L. 104-170), extended EPA’s authority to collect certain fees through FY2001. Congress extended this authority annually through appropriations legislation prior to the enactment of PRIA 1 (P.L. 108- 199) in 2004. Since 1998, Presidents’ budget requests have included proposals to modify existing fee structures to further increase revenues for pesticide activities, but were not adopted in legislation and in some cases specifically prohibited by Congress. The FY2013 President’s budget request, submitted to Congress February 13, 2012, did not include similar proposals for supplemental fees, but instead acknowledged the need for reauthorization of the current fees at increased levels to cover a greater portion of relevant program operating costs.


Date of Report: Novemberr 8, 2012
Number of Pages: 40
Order Number: RL32218
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Safe Drinking Water Act (SDWA): A Summary of the Act and Its Major Requirements

Mary Tiemann
Specialist in Environmental Policy

This report summarizes the Safe Drinking Water Act (SDWA) and its major programs and regulatory requirements. It excerpts, with several additions, the SDWA chapter of CRS Report RL30798, Environmental Laws: Summaries of Major Statutes Administered by the Environmental Protection Agency, which provides summaries of the principal environmental statutes administered by the Environmental Protection Agency (EPA). This report includes the drinking water security provisions added to the SDWA by the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (P.L. 107-188).

The SDWA, Title XIV of the Public Health Service Act, is the key federal law for protecting public water supplies from harmful contaminants. First enacted in 1974 and substantially amended in 1986 and 1996, the act is administered through programs that establish standards and treatment requirements for public water supplies, control underground injection of wastes, finance infrastructure projects, and protect sources of drinking water. The 1974 law established the current federal-state arrangement in which states may be delegated primary implementation and enforcement authority for the drinking water program. The state-administered Public Water Supply Supervision (PWSS) Program remains the basic program for regulating the nation’s public water systems, and 49 states have assumed this authority.

The last major reauthorization of the act was done through the Safe Drinking Water Act Amendments of 1996 (P.L. 104-182), which generally authorized appropriations for SDWA programs through FY2003. As with other EPA-administered statutes having expired funding authority, Congress has continued to appropriate funds for the ongoing SDWA programs.

In addition to reviewing key programs and requirements of the SDWA, this report includes statistics on the number and types of regulated public water systems. It also provides tables that list all major amendments, with the year of enactment and public law number, and that crossreference sections of the act with the major U.S. Code sections of the codified statute.


Date of Report: October 25, 2012
Number of Pages: 22
Order Number: RL31243
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Climate Change and Existing Law: A Survey of Legal Issues Past, Present, and Future

Robert Meltz
Legislative Attorney

This report surveys existing law for legal issues that have arisen, or may arise in the future, on account of climate change and government responses thereto.

At the 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.

Efforts to 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.

Liability for 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.

Water 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.

Other 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.

Natural 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.

Finally, immigration and refugee law appear not to cover persons forced to relocate because of climate change impacts such as drought or sea level rise.


Date of Report: October 25, 2012
Number of Pages: 34
Order Number: R42613
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2006 National Ambient Air Quality Standards (NAAQS) for Fine Particulate Matter (PM2.5): Designating Nonattainment Areas

Robert Esworthy
Specialist in Environmental Policy

The Environmental Protection Agency (EPA) published its final revisions to the Clean Air Act (CAA) National Ambient Air Quality Standards (NAAQS) for particulate matter (particulates, or PM) on October 17, 2006. EPA’s actions leading up to and following promulgation of the 2006 standard have been the subject of considerable congressional oversight. EPA and states’ ongoing implementation of the standard, beginning with the designation of those geographical areas not in compliance, likewise has been an area of concern and debate among some Members of Congress, states, and other stakeholders for some time. EPA’s most recent round of periodic review of the particulates NAAQS and proposal to revise the PM NAAQS, published June 29, 2012, have prompted further scrutiny of the ongoing implementation of the standards. EPA has agreed to issue final revised PM NAAQS by December 14, 2012.

Promulgation of NAAQS sets in motion a process under which the states and EPA identify areas that exceed the standard (“nonattainment areas”) using multi-year air quality monitoring data and other criteria, requiring states to take steps to reduce pollutant concentrations in order to achieve it. The publication of the final designations for the 2006 NAAQS—and thus the effective date of the final designations—had initially been delayed pending review by the current Administration. On November 13, 2009, EPA published its final designations for the 2006 PM NAAQS that included 120 counties and portions of counties in 18 states as nonattainment areas based on 2006 through 2008 air quality monitoring data. The final designations, which include tribal land of 22 tribes, were effective as of December 14, 2009. States have three years from the effective date to submit nonattainment area State Implementation Plans (SIPs), which identify specific regulations and emission control requirements that would bring a nonattainment area into compliance.

The 2006 NAAQS strengthened the pre-existing (1997) standard for “fine” particulate matter 2.5 micrometers or less in diameter (PM2.5) by lowering the allowable daily concentration of PM2.5 in the air. The daily standard averaged over 24-hour periods was reduced from 65 micrograms per cubic meter (μg/m3) to 35 μg/m3. However, the annual PM2.5 standard, which addresses human health effects from chronic exposures to the pollutants, was unchanged from the 1997 standard of 15 μg/m3. The 2006 NAAQS did not substantially modify the daily standard for slightly larger, but still inhalable, particles less than or equal to 10 micrometers (PM10), retaining the 24-hour standard but revoking the annual standard for PM10.

EPA’s final nonattainment designations are only for the revised 2006 24-hour PM2.5 standard. EPA did not require new nonattainment designations for the PM2.5 annual standard and for PM10. The final designations for the 2006 PM2.5 NAAQS included a few areas designated nonattainment for PM2.5 for the first time, but, as expected, the majority of the counties identified overlapped with EPA’s final nonattainment designations for the 1997 PM2.5 NAAQS. EPA’s designations for the 1997 PM2.5 NAAQS included all or part of 204 counties in 20 states and the District of Columbia. Most of them were only exceeding the annual standard; only 12 counties were exceeding both the 24-hour and the annual standards. Thus, the 2006 tightening of the 24-hour standard resulted in an increased number of areas being designated nonattainment based on exceedances of both the 24-hour and the annual standards.


Date of Report: October 25, 2012
Number of Pages: 41
Order Number: R40096
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