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, authorizes EPA to regulate GHG emissions. EPA’s subsequent efforts to carry out that authority have been sustained 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 from other sources, and, if EPA does, whether the CAA authorizes capand- trade programs. 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: January 3, 2012
Number of Pages: 37
Order Number: R42613
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Emergency Management: A Compendium

This Compendium provides details on the National Environmental Policy Act (NEPA) for disaster response, recovery, and mitigation projects. It discusses the role of the United States Fire Administration. A section on nuclear power plants point to their vulnerabilities. The Emergency Planning and Community Right-to-Know Act and the major regulatory programs that mandate reporting by industrial facilities of releases of potentially hazardous chemicals to the environment, as well as local planning to respond in the event of significant releases are summarized. The traditional funding for major disaster declarations, both through annual requested amounts and through supplemental appropriations to meet greater than anticipated costs. Also explained are the workings of the President’s Disaster Relief Fund, a “no-year” fund that finances spending under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (P.L. 93-288).

 Project Bioshield (P.L. 108-276), which provides the federal government with new authorities related to the development, procurement, and use of medical countermeasures against chemical, biological, radiological, and nuclear terrorism agents, is outlined.

 The agricultural sector is not exempt from disaster and this Compendium provides an overview of the current U.S. Department of Agriculture disaster assistance programs -- federal crop insurance, noninsured crop disaster assistance, and emergency disaster loans.

Date of Report: January 11, 2013
Number of Pages: 177
Order Number: C12013
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Hydraulic Fracturing and Safe Drinking Water Act Regulatory Issues

Mary Tiemann
Specialist in Environmental Policy

Adam Vann
Legislative Attorney

Hydraulic fracturing is a technique developed initially to stimulate oil production from wells in declining oil reservoirs. With technological advances, hydraulic fracturing is now widely used to initiate oil and gas production in unconventional (low-permeability) oil and gas formations that were previously inaccessible. This process now is used in more than 90% of new oil and gas wells. Hydraulic fracturing is done after a well is drilled and involves injecting large volumes of water, sand (or other propping agent), and specialized chemicals under enough pressure to fracture the formations holding the oil or gas. The sand or other proppant holds the fractures open to allow the oil or gas to flow freely out of the formation and into a production well. Its application, along with horizontal drilling, for production of natural gas (methane) from tight gas sands, unconventional shale formations, and coal beds, has resulted in the marked expansion of estimated U.S. natural gas reserves in recent years. Similarly, hydraulic fracturing is enabling the development of tight oil resources, such as the Bakken and Eagle Ford formations. The rapid growth in the use of fracturing has raised concerns over its potential impacts on groundwater and drinking water sources, and has led to calls for more state and/or federal oversight of this activity.

Historically, the Environmental Protection Agency (EPA) had not regulated the underground injection of fluids for hydraulic fracturing of oil or gas production wells. In 1997, the U.S. Court of Appeals for the 11th Circuit ruled that fracturing for coalbed methane (CBM) production in Alabama constituted underground injection and must be regulated under the Safe Drinking Water Act (SDWA). This ruling led EPA to study the risk that hydraulic fracturing for CBM production might pose to drinking water sources. In 2004, EPA reported that the risk was small, except where diesel was used, and that national regulation was not needed. However, to address regulatory uncertainty the ruling created, the Energy Policy Act of 2005 (EPAct 2005) revised the SDWA term “underground injection” to explicitly exclude the injection of fluids and propping agents (except diesel fuel) used for hydraulic fracturing purposes. Thus, EPA lacks authority under the SDWA to regulate hydraulic fracturing, except where diesel fuel is used. As the use of the process has grown, some in Congress would like to revisit this statutory exclusion. In EPA’s FY2010 appropriations act, Congress urged the agency to study the relationship between hydraulic fracturing and drinking water quality. In late 2012, EPA issued a research progress report. In May 2012, EPA issued draft permitting guidance for hydraulic fracturing operations using diesel.

Several relevant bills were offered in the 112th Congress, but none was enacted. H.R. 1084/S. 587 proposed repealing the hydraulic fracturing exemption established in EPAct 2005, and amending the term “underground injection” to include the injection of fluids used in hydraulic fracturing operations, thus authorizing EPA to regulate this process under the SDWA. The bills also would have required disclosure of the chemicals used in the fracturing process. In response to rules proposed by the Bureau of Land Management (BLM) in 2012, S. 2248/H.R. 4322 proposed that a state would have sole authority to regulate hydraulic fracturing on federal lands within state boundaries; H.R. 3973 would have prohibited the rule from having any effect on Indian lands; and H.R. 6235 would have barred a final rule for 10 years, pending an impact study. At the state level, many states have revised laws and rules to address high-volume hydraulic fracturing.

This report reviews past and proposed treatment of hydraulic fracturing under the SDWA, the principal federal statute for regulating the underground injection of fluids to protect groundwater sources of drinking water. It reviews current SDWA provisions for regulating underground injection activities, and discusses some possible implications of the enactment of legislation authorizing EPA to regulate hydraulic fracturing (beyond diesel) under this statute.


Date of Report: January 10, 2013
Number of Pages: 43
Order Number: R41760
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Water Quality Management: A Compendium

Dominating this 500+ page Compendium are extensive sections covering implementation of the Clean Water Act and the Safe Drinking Water Act. A third equally extensive section focuses on water infrastructure.

The two federal laws, the Clean Water Act and the Safe Drinking Water Act, provide the framework for the nation’s efforts to provide safe and healthy water to its citizens. Although much progress has been made towards the goals established in these laws, long-standing problems persist, and new problems have emerged. Specific areas of interest include whether additional steps are necessary to achieve the overall goals of these acts; how to meet the costs and technological challenges of providing safe drinking water and cleaning the flow of used water from a community; and what is the appropriate federal role in guiding and paying for safe and healthy water and other activities.

Over the last 35 years, federal, state and local governments, and private utilities have invested more than $100 billion in water infrastructure in order to attain the goals of the Clean Water Act and the Safe Drinking Water Act, yet remaining funding needs are projected to be as much as $660 billion over the next two decades. According to the Environmental Protection Agency (EPA), if there is no increase in investment, there will be about an $11 billion annual gap between current capital expenditures for water infrastructure (which total $23 billion annually) and projected spending needs. Analysts predict that, barring major breakthroughs in technology, investment costs will rise for decades to come as more of the existing water infrastructure deteriorates. Many systems simultaneously face the need to increase security measures and to construct treatment plants to remove newly regulated drinking water contaminants. At issue are how to meet funding needs and what are the appropriate public and private sector roles in doing so. State, municipal, and rural stakeholders have called for greater federal investment in water infrastructure, while others (including privately owned water utilities) have argued for greater self-reliance.


Date of Report: January 3, 2013
Number of Pages: 544
Order Number: C12020
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Enacted and Proposed Oil Spill Legislation in the 112th Congress

Jonathan L. Ramseur
Specialist in Environmental Policy

Recent oil spills, including the 2010 Deepwater Horizon oil spill in the Gulf of Mexico, generated an increased level of interest in oil spill legislation during the 112th Congress. This report identifies enacted and proposed legislation from the 112th Congress that pertains to oil spillrelated issues. For this report, oil spill-related issues include oil spill policy matters that concern prevention, preparedness, response, liability and compensation, and Gulf of Mexico restoration. In the context of this report, oil spill issues do not generally include matters pertaining to offshore leasing and drilling.

The 112th Congress enacted two statutes that contain oil spill-related provisions. On January 3, 2012, the President signed P.L. 112-90 (the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011), which

• increases civil penalties for violating safety requirements and requires automatic and remote-controlled shutoff valves on newly constructed transmission pipelines; 
• directs the Department of Transportation to analyze leak detection systems, and after a review by Congress, issue requirements based on this analysis; and 
• requires the Pipeline and Hazardous Materials Safety Administration to review whether current regulations are sufficient to regulate pipelines transmitting "diluted bitumen," and analyze whether such oil presents an increased risk of release. 

On July 6, 2012, the President signed P.L. 112-141 (MAP-21), which includes a subtitle referred to as the RESTORE Act. The RESTORE Act establishes the Gulf Coast Restoration Fund in the General Treasury. Eighty percent of any administrative and civil Clean Water Act Section 311 penalties paid by responsible parties in connection with the 2010 Deepwater Horizon oil spill will provide the revenues for the fund. Amounts in the fund will be available for expenditure without further appropriation.

The RESTORE Act distributes monies to various entities through multiple processes:

• 35% divided equally among the five Gulf of Mexico states to be applied toward one or more of 11 designated activities; 
• 30% provided to a newly created Gulf Coast Ecosystem Restoration Council to finance ecosystem restoration activities in the Gulf Coast region; 
• 30% disbursed by the Council to the five Gulf states, based on specific criteria: shoreline impact; oiled shoreline distance from the Deepwater Horizon rig; and coastal population. Each state must submit a plan for approval, documenting how funding will support one or more of the 11 designated activities; and 
• 5% to support marine research and related purposes.

Date of Report: January 7, 2013
Number of Pages: 37
Order Number: R41684
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