Type: Development Article

Vol. No. 56-2 Water Rights

By Emily Rogers and Chloe Fisher

Introduction

During Hurricane Harvey in 2017, the San Jacinto River Authority (SJRA) released water from its Lake Conroe reservoir into a portion of the San Jacinto River.1 Downstream property owners alleged their properties flooded as a result, asserting takings claims against SJRA under the Private Real Property Rights Preservation Act (the Act).2 The Court of Appeals held in favor of SJRA, reversing the trial court’s denial of SJRA’s plea to the jurisdiction and dismissing the plaintiffs’ statutory takings claim.3 This decision is likely to affect private property owners in Texas bringing statutory takings claims under the Act arising out of dam management during weather emergencies.

The Private Real Property Rights Preservation Act

The Private Real Property Rights Preservation Act authorizes private property owners to sue to determine whether a governmental action of a political subdivision results in a “taking” under Texas law.4 The Act defines “taking” to include governmental actions (1) affecting private real property that are compensable under the state or federal constitutions or (2) resulting in a reduction of at least 25% of market value of the affected real private property.5

Private property owners who succeed in obtaining “takings” determinations are entitled to judgment invalidating the governmental action at issue, including an assessment for money damages suffered and attorney’s fees.6 However, the Act does not require the governmental entity to pay those damages in all situations.7 Rather, the Act expressly provides governmental immunity for many categories of governmental action.8

Notably, one category of action triggering exclusion from payment based on governmental immunity is found in § 2007.003(b)(7) of the Act: “an action taken out of a reasonable good faith belief that the action is necessary to prevent a grave and immediate threat to life or property.”9 Though the Court of Appeals previously considered the applicability of this exclusion based on the pleadings, the Court had not previously considered § 2007.003(b)(7)’s general meaning or applied it to evidence.10 Chapter 2007 does not define the terms in § 2007.003(b)(7).11

San Jacinto River Authority v. Ross: An Overview

Created in 1937, SJRA is a political subdivision and a conservation and reclamation district of the State of Texas.12 SJRA’s responsibilities include “storing, controlling, and conserving storm and floodwaters of the San Jacinto River and its tributaries.”13 SJRA operates and maintains the dam across the West Fork of the San Jacinto River.14

Hurricane Harvey made landfall near Port Aransas on August 25, 2017, before re-entering the Gulf.15 As Harvey returned inland, its forward motion nearly stagnated, with the storm moving just five miles per hour.16 Severe flash flooding occurred through much of Harris and Montgomery Counties.17 On August 27, 2017, SJRA began releasing storm waters from Lake Conroe to the West Fork of the San Jacinto River.18 Many property owners in the Kingwood and Humble areas experienced devastating flooding.19 Following Harvey, the appellees (the Property Owners) sued SJRA in Harris County district courts, alleging that SJRA’s water release “inundated their properties with water and caused substantial damage.”20 The Property Owners asserted takings claims under the Texas Constitution and the Act.21 However, the Property Owners’ statutory takings claims under § 2007.003 of the Act were the only claims at issue for the purposes of this appeal.22

The Court’s Decision in Ross to Exempt SJRA from Takings Liability

SJRA argued that the trial court erred in denying its plea to jurisdiction in part because its actions were exempt from takings liabilities under § 2007.003(b)(7)’s emergency exclusion. In its analysis, the Court of Appeals began by defining the words of § 2007.003(b)(7) by looking to their ordinary meanings.23 The Court’s definitions are as follows:

“Action”

The term “action” refers to the challenged act or acts put into issue by the plaintiffs’ pleadings.24

“Reasonable Good Faith”

The term “reasonable good faith”—as applied to a dam operator like SJRA—means that “the governmental entity believed that the challenged action was necessary to prevent a grave and immediate threat to life or property, and that its belief was objectively reasonable under the circumstances when viewed from the perspective of a reasonable dam operator.”25

“Necessary”

The word “necessary” includes something that is essential or needed for some purpose.26

“Grave and Immediate”

“Grave” means “likely to produce great harm or danger” or “significantly serious.”27 “Immediate” means “near to or related to the present” or “of or relating to the here and now.”28

Application

Mindful of these definitions, the Court considered whether the record established the exclusion. The Court looked to SJRA employee testimonies in the record on risk, adherence to floodgate policy, and goals when releasing water from the lake; hydrology expert testimony; and engineering expert testimony in making its determination.29

The Court held that SJRA met its burden to establish the exclusion.30 The Court first examined whether Harvey presented a “grave and immediate threat.” It pointed to uncontroverted evidence filed by the Property Owners that illustrated Harvey’s severity, including that, according to the Harris County Flood Control District’s final report, four-day rainfall totals over the Kingwood area were likely to occur only once every 2,000-5,000 years.31 Given this evidence, the Court concluded that Harvey presented a grave and immediate threat to life and property.32

Next, the Court examined whether SJRA presented evidence (1) that it believed that releasing water in accordance with its floodgate policy was necessary to prevent the threat posed and, if so, (2) whether its belief was objectively reasonable. Here, the Court looked to SJRA’s general manager’s testimony on its intent and objectives when deciding to release water during storm events, as outlined in the organization’s floodgate policy.33 Given that the floodgate policy was designed to reduce downstream flooding, comport with applicable laws, and ensure that the dam does not fail or cause catastrophic flooding downstream, the Court determined that SJRA had the requisite belief.34 The Court then concluded that SJRA’s belief was objectively reasonable, given that, generally, “governmental entity’s actions taken with intent to comply with valid laws and legal authority are objectively reasonable.”35

The Court rejected the Property Owners’ argument that fact questions existed as to whether SJRA reasonably and in good faith believed that releasing the water was necessary to prevent a grave and immediate threat to life or property.36 Specifically, the Court noted that the Property Owners’ allegations regarding SJRA’s (1) intent to avoid upstream flooding; (2) failure to meet floodgate policy goals; (3) reliance on a case the Property Owners contend was decided incorrectly and that the Court had declined to follow; and (4) release of more water than essential did not present fact issues.37

Consequently, the Court concluded that the § 2007.003(b)(7) exclusion applied. Given that the exclusion applied, the Court held that the trial court erred in denying SJRA’s plea to the jurisdiction.38 The Court reversed the trial court’s order and rendered judgment dismissing the Property Owners’ statutory takings claims under § 2007.003(b)(7), with prejudice.39

The Impact of the Court of Appeals’ Decision in Ross

Though the Court’s holding is binding only within its jurisdictional limits, the decision has statewide implications on statutory takings liability arising under the Act out of dam management during weather emergencies. The decision provides insight into how other appellate courts or the Supreme Court of Texas might construe § 2007.003(b)(7) following similar claims. It may therefore be harder for private property owners to receive compensation under § 2007.003(b)(7), as the Court in Ross was reluctant to find fact issues in the face of expert and employee testimony showing a reasonable good faith belief that releasing the water was necessary to prevent a grave and immediate threat to life or property.

 

Emily Rogers is the managing partner at Bickerstaff Heath Delgado Acosta LLP and practices in the areas of water and environmental law. She has extensive experience representing cities, river authorities, and water districts in matters involving surface and groundwater rights, water and wastewater utility matters, and industrial and municipal solid waste disposal cases. Emily earned her B.A. in History from the University of Texas, her M.A. in History from Southwest Texas State University, and her J.D. from the University of Houston Law Center.

Chloe Fisher is a recent graduate of the University of Texas School of Law. Chloe is from Houston, Texas, and she received her B.A. in Sustainability Studies & Philosophy from UT Austin. She joined TELJ during her first year of law school and served as Editor-in-Chief of Volume 56.

 

  1. San Jacinto River Auth. v. Ross, No. 14-23-00923-CV, 2025 WL 2934051, at *1 (Tex. App.—Houston [14th Dist.] Oct. 16, 2025, no pet. filed.).
  2. Id. at *2.
  3. Id. at *16.
  4. Tex. Gov’t Code § 2007.021(1).
  5. Id. § 2007.002(5).
  6. See San Jacinto River Auth. v. Medina, 627 S.W.3d 618, 622 (Tex. 2021) (citing Tex. Gov’t Code §§ 2007.006(a), 2007.021, 2007.023(b), 2007.024(b), 2007.026(a)).
  7. Tex. Gov’t Code § 2007.024(c).
  8. Id. § 2007.003(b).
  9. Id. § 2007.003(b)(7).
  10. Ross, 2025 WL 2934051, at *4 (citing Medina, 627 S.W.3d, at 628–31).
  11. Id. at *5.
  12. Id. at *1 (citing Medina, 627 S.W.3d at 621).
  13. Id. (citing Medina, 627 S.W.3d at 621) (internal quotes omitted).
  14. Id.
  15. Ross, 2025 WL 2934051, at *1.
  16. Id.
  17. Id.
  18. Id.
  19. Id.
  20. Id. at *2.
  21. Id.
  22. Id.
  23. Id. at *5.
  24. Ross, 2025 WL 2934051, at *5.
  25. Id. at *6.
  26. Id.
  27. Id. (quoting Grave, Merriam-Webster Online Dictionary (2026), https://www.merriam-webster.com/dictionary/grave [https://perma.cc/F85Y-55E2]).
  28. Id.
  29. Ross, 2025 WL 2934051, at *6–*9.
  30. Id.
  31. Id. at *9.
  32. Id. at *10.
  33. Id.
  34. Id.
  35. Ross, 2025 WL 2934051, at *10 (citing City of Houston v. Newsom, 858 S.W.2d 14, 18 (Tex. App.—Houston [14th Dist.] 1993, no writ); Aacen v. San Juan Cnty. Sheriff’s Dep’t, 944 F.2d 691, 701 (10th Cir. 1991)).
  36. Ross, 2025 WL 2934051, at *13.
  37. Id. at *13–*15.
  38. Id. at *16.
  39. Id.

Vol. No. 56-2 Water Quality

Regulating Forever Chemicals: The Clean Water Act and PFAS

By: Alisha Adams and Blair Buchanan

Introduction

The Clean Water Act (“CWA” or “the Act”) has served as the primary federal statute for protecting the waters of the United States for over fifty years. The Act’s primary objective “is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”[1] Although the Act has proven effective in mitigating traditional pollutants, it now confronts a contemporary, and particularly challenging, class of contaminants: per- and polyfluoroalkyl substances (“PFAS”).

Commonly referred to as “forever chemicals” due to their ability to persist in the environment and human body, PFAS are a class of synthetic chemicals used in industrial and consumer products that aid with resistance to moisture, grease, stains, and fire.[2] These substances have been linked to a range of adverse health outcomes and have been widely detected in soil, surface water, and drinking water.[3] Despite the CWA providing the Environmental Protection Agency (“EPA”) with robust regulatory mechanisms, such as National Pollutant Discharge Elimination System (“NPDES”) permits and Effluent Limitation Guidelines (“ELGs”), federal action that meaningfully addresses PFAS has historically been limited.[4]

This article examines the application of the CWA to PFAS and assesses recent regulatory developments regarding these substances. Part I provides background on the chemical properties, uses, and risks associated with PFAS. Part II analyzes the CWA’s mechanisms as they pertain to PFAS. Part III highlights recent federal regulatory activities and policy developments concerning PFAS under the CWA framework.

1. PFAS

PFAS are a large group of synthesized chemical compounds characterized by a fluoroalkyl chain in which carbon atoms are bonded to fluorine atoms.[5] This carbon-fluorine bond is one of the strongest bonds in nature, making these chemicals exceptionally resistant to heat, water, grease, and stains, while simultaneously making them immune to biodegradation.[6] As a result, PFAS remain highly persistent in their environment.

PFAS’ ability to resist moisture, grease, and fire has made them enticing chemicals for use in a variety of products. For example, since the 1940s, PFAS have been used in non-stick cookware, food packaging, mobile phones, cosmetics, and the aqueous film-forming foams used in firefighting.[7] Today, PFAS are used in many everyday household products, including kitchen and food packaging, household cleaners and paints, water-resistant clothing, carpets, furniture fabrics, mattresses, and personal care products like dental floss, waterproof cosmetics, sunscreen, and nail polish.[8]

PFAS have also become nearly ubiquitous in the environment, appearing in soil, surface water, the atmosphere, and the blood of more than 97 percent of Americans.[9] Specifically, the PFAS released into the environment during manufacturing, use, and disposal persist for decades.[10] Notably, these substances are also mobile in water, and surface waters have been found to contain some of the highest PFAS concentrations.[11]

Exposure to PFAS has been linked to an array of adverse health effects, including cancer, liver damage, immune system suppression, and growth defects in children.[12] Research has also linked PFAS exposure to obesity, insulin resistance, and thyroid malfunction.[13] These cumulative health risks, combined with PFAS’s persistence and bioaccumulation potential, underscore the urgency of addressing their presence in the environment. The environmental distribution of PFAS also raises significant environmental justice concerns, as the industrial facilities and airports that serve as point sources for these substances are disproportionately located near low-income communities and communities of color.[14]

2. Applying the Clean Water Act to PFAS

Enacted in 1972, the CWA establishes the basic federal framework for regulating pollutant discharges into United States waters. The Act defines “pollutant” broadly to include substances, such as chemical and industrial wastes, sewage, and biological materials, that are discharged into the nation’s water,[15] granting EPA the authority to regulate diverse point-source discharges from industrial, municipal, and other facilities.[16] The CWA also establishes two primary regulatory mechanisms: the National Pollutant Discharge Elimination System (“NPDES”) permit program and Effluent Limitation Guidelines (“ELGs”).[17]

The NPDES program requires facilities to obtain permits before discharging pollutants from point sources into United States waters.[18] NPDES permits establish enforceable limits on the type and quantity of pollutants that may be discharged, while also typically including monitoring, recordkeeping, and reporting requirements that are designed to ensure compliance, protect water quality, and maintain human health.[19] These permits may also outline ideal management practices or other operational requirements aimed to minimize environmental harms.[20]

In addition to permitting requirements, the CWA employs technology-based ELGs, which set the maximum levels of pollutants that facilities within specific industrial categories may discharge.[21] ELGs are based on the performance of available pollution control technologies and are incorporated into individual NPDES permits.[22] While facilities are not required to implement the specific technologies identified in ELGs, they must comply with these guidelines’ established discharge limits.[23]

Although the CWA’s regulatory system has significantly reduced conventional industrial pollution, the Act faces structural limitations that hinder its responsiveness to emerging contaminants like PFAS. For example, developing or revising ELGs can be a slow and resource-intensive process.[24] Before establishing new limits, EPA must gather data regarding the prevalence and sources of specific pollutants, evaluate available treatment technologies, and assess the economic implications of those technologies.[25]

These challenges are particularly acute for PFAS, which present distinct regulatory hurdles. Unlike more discrete pollutants, PFAS comprise a class of over 9,000 chemicals, many of which are proprietary and remain poorly understood.[26] As a result, regulators often lack comprehensive data[27] and must then rely on industry-reported information, complicating efforts to establish uniform standards.[28] Historically, the absence of standardized testing methods and consistent federal requirements has also produced a fragmented, state-by-state reporting regime, leaving significant gaps in nationwide data.[29] Together, these factors delay the development of comprehensive regulatory standards and illustrate how difficult it is to apply the CWA framework to complex and evolving chemical classes, like PFAS.

Additionally, the CWA requires EPA to balance the costs of achieving effluent reductions with the corresponding environmental benefits when setting technology-based ELGs.[30] While this approach reflects Congress’s effort to balance environmental protection with economic feasibility, it can further slow regulatory action when costs are uncertain or politically contested.[31] In the case of PFAS, industry opposition and debate over the economic implications of broad controls have significantly shaped regulatory efforts, particularly given the widespread use of these chemicals across multiple sectors and the potential costs of compliance.[32] These structural and informational constraints explain why the CWA may struggle to address emerging contaminants like PFAS.

3. Recent Regulatory Developments on PFAS under the CWA

As synthetic chemical compounds that can enter waterways through industrial and wastewater discharges, PFAS fall squarely within the CWA’s broad definition of “pollutant.” However, the lack of PFAS-specific ELGs has constrained EPA’s use of the CWA as a regulatory tool to combat PFAS pollution.[33] Although EPA possesses the authority to regulate PFAS, meaningful regulatory action has been limited, reflecting both the slow pace of ELG development and limited data on PFAS’s occurrence and toxicity.[34]

In 2019, EPA initiated a series of efforts aimed at addressing PFAS-related informational and regulatory gaps, signaling a shift toward greater engagement with the substances under the CWA. EPA’s 2019 PFAS Action Plan outlined short- and long-term goals,[35] which were subsequently elaborated on in the agency’s 2021 PFAS Strategic Roadmap.[36] These strategies emphasized research, monitoring, and regulatory development, and they were eventually completed with a 2022 guidance memorandum addressed to the states, which explicitly described how NPDES permits could be used to reduce PFAS pollution.[37]

Consistent with this emphasis on data generation and monitoring, EPA finalized analytical methods for detecting PFAS in wastewater and other environmental media in 2024, and the agency published its science-based water quality concentrations and benchmarks for ten PFAS to guide state and tribal efforts to protect aquatic life.[38] These water quality concentrations encompass EPA’s recommended criteria; however, they are not regulatory and do not impose legally binding requirements.[39]

EPA has since taken additional steps to translate these priorities into practice, primarily by continuing to expand its monitoring and data collection requirements. In 2025, the agency issued a draft Multi-Sector General Permit (“MSGP”) that would require operators in twenty-three industrial sectors to monitor forty PFAS compounds in areas where EPA has NPDES permitting authority.[40] Simultaneously, EPA developed methods to detect forty PFAS compounds in wastewater, surface water, groundwater, soil, and sludge, supporting future permit requirements and regulatory revisions.41] The agency also signaled its intent to update NPDES permits to require the monitoring and reporting of PFAS in November 2025, but this proposal has not yet been issued.[42] Moving forward, EPA plans to propose revisions to the Organic Chemicals, Plastics, and Synthetic Fibers (“OCPSF”) ELGs in 2026, a category that will include PFAS.[43]

Taken together, these efforts reflect a regulatory strategy that prioritizes information gathering and incrementally integrating PFAS into existing CWA mechanisms, rather than immediately establishing enforceable discharge limits. While this approach has expanded the scientific and technical foundation for future regulation, it has also prolonged the absence of binding ELGs, leaving significant PFAS discharges unregulated. Accordingly, EPA’s recent actions illustrate the CWA framework’s adaptability and limitations: although the statute can accommodate emerging contaminants, its reliance on data- and resource-intensive processes may delay meaningful regulatory intervention despite widespread and persistent pollution.

Conclusion

The regulation of PFAS under the CWA illustrates the structural and practical challenges EPA faces in addressing emerging contaminants. Although the Act provides EPA with the broad authority and flexible regulatory tools capable of addressing PFAS, the absence of enforceable effluent limits, combined with historically limited data, has constrained meaningful intervention and allowed contamination to persist. EPA’s recent shift toward a more monitoring-intensive approach reflects an important effort to build the scientific foundation necessary for regulation. However, this change underscores the limitations of an incremental strategy that prioritizes data collection over immediate controls. Without the timely development of binding discharge limits and due to their widespread use, PFAS pollution is likely to continue. To fulfill the CWA’s core objective of protecting the integrity of the nation’s waters, EPA should move beyond monitoring and guidance and toward the establishment of concrete, enforceable limits on PFAS discharges.

 

Alisha Adams is an attorney in the Environmental and Regulatory section of Jackson Walker’s Austin office. She is experienced in regulatory and complex environmental litigation matters in both state and federal courts and in arbitration proceedings, including identification and mitigation of environmental risks, navigating the permitting processes, and defending clients in administrative enforcement actions.

Blair Buchanan is a recent graduate of the University of Texas School of Law. While in law school, Blair researched many topics related to environmental and administrative law, including NEPA litigation and policy under Prof. David Adelman.

 

 

[1] 33 U.S.C. § 1251(a).

[2] Jackson D. Vause, PFAS in Charleston S.C.: A Review of Pollution, Regulatory Issues and Potential Solutions, 75 S.C.L. Rev. 759, 761 (2024). The Environmental Protection Agency’s PFAS datasets have identified and labeled over 12,000 substances as PFAS in the United States. Gar N. Lauerman & Scott M. Seaman, An Updated Primer on PFAS/Forever Chemical Claims: Regulation, Litigation, Large Losses, and Insurance Coverage Issues, Hinshaw & Culbertson LLP (Nov. 14, 2024), https://www.hinshawlaw.com/newsroom-updates-insights-for-insurers-pfas-forever-chemical-regulation-litigation-insurance-coverage.html [https://perma.cc/GYK3-MVVH]; Maria-Eleni Dimitrakopoulou et al., Comprehensive Analysis of PFAS Presence from Environment to Plate, 8 npj Sci. Food art. no. 80, at 2 (2024), https://doi.org/10.1038/s41538-024-00319-1.

[3] Our Current Understanding of the Human Health and Environmental Risks of PFAS, Env’t Prot. Agency (July 14, 2026), https://www.epa.gov/pfas/our-current-understanding-human-health-and-environmental-risks-pfas [https://perma.cc/6LZU-V6KB].

[4] Recent EPA actions signal a shift toward a more assertive use of CWA authority to regulate PFAS discharges. However, EPA has not designated any PFAS as toxic pollutants or hazardous substances. Vause, supra note 2, at 770.

[5] Lauerman & Seaman, supra note 2.

[6] See What Are PFAS Compounds and How Can We Test for Them?, Enviroforensics (Apr. 30, 2026), https://www.enviroforensics.com/blog/what-are-pfas-compounds-and-how-can-we-test-for-them/ [https://perma.cc/WJ3U-FG6Z].

[7] Env’t Prot. Agency, supra note 3.

[8] Id.

[9] Nat’l Inst. of Env’t Health Scis., Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS) (Mar. 6, 2026), https://www.niehs.nih.gov/health/topics/agents/pfc [https://perma.cc/3PY7-XL77].

[10] PFAS and Food Packaging – FAQ, CHEMTrust, https://chemtrust.org/pfas-food-packaging-faq/ [https://perma.cc/4WPC-ELEE] (last visited Sept. 8, 2026).

[11] Dimitrakopoulou et al., supra note 2, at 1.

[12] Carol Kwiatkoski et al., Scientific Basis for Managing PFAS as a Chemical Class, 7 Env’t Sci. & Tech. Lett. 532 (2020), https://doi.org/10.1021/acs.estlett.0c00255.

[13] Lore Jane L. Espartero et al., Health-Related Toxicity of Emerging Per- and Polyfluoroalkyl Substances: Comparison to Legacy PFOS and PFOA, 212 Env’t Rsch. art. no. 113431, at  3 (2022), https://doi.org/10.1016/j.envres.2022.113431.

[14] Vause, supra note 2, at 765–66.

[15] 33 U.S.C. § 1362(6) (2018).

[16] See 33 U.S.C. § 1342.

[17] NPDES Permit Basics, Env’t Prot. Agency (July 22, 2026), https://www.epa.gov/npdes/npdes-permit-basics [https://perma.cc/YFD2-NQYW]; Effluent Guidelines Plan, Env’t Prot. Agency (Nov. 25, 2025),  https://www.epa.gov/eg/effluent-guidelines-plan [https://perma.cc/53UE-EYU9].

[18] Summary of the Clean Water Act, Env’t Prot. Agency (Feb. 23, 2026), https://www.epa.gov/laws-regulations/summary-clean-water-act [https://perma.cc/88DJ-8W3A].

[19] Env’t Prot. Agency, NPDES Permit Basics, supra note 17.

[20] Id.

[21] PFAS manufacturers and formulators fall under the Organic Chemicals, Plastics, and Synthetic Fibers (OCPSF) category. Organic Chemicals, Plastics, and Synthetic Fibers Effluent Guidelines, Env’t Prot. Agency (May 8, 2026), https://www.epa.gov/eg/organic-chemicals-plastics-and-synthetic-fibers-effluent-guidelines [https://perma.cc/T8H9-WV48].

[22] Where EPA has not established ELGs for a particular pollutant or industry category, permitting authorities may impose limits on a case-by-case basis using their “best professional judgment.” Cong. Rsch. Serv., R45998, Contaminants of Emerging Concern Under the Clean Water Act 14 (2019).

[23] Federal PFAS Regulation: 2025 Activities and 2026 Anticipated Actions, BCLP (Feb. 17, 2026), https://www.bclplaw.com/en-US/events-insights-news/federal-pfas-regulation-2025-activities-and-2026-anticipated-actions.html [https://perma.cc/D3R8-B8DM].

[24] Vause, supra note 2, at 777.

[25] Id.

[26] Espartero et al., supra note 13, at 2, 4.

[27] While certain legacy compounds, such as perfluorooctanoic acid (“PFOA”) (used in non-stick cookware, stain-resistant fabrics, and firefighting foams) and perfluorooctanesulfonic acid (“PFOS”) (used to make products stain-, grease-, and water-resistant) have been heavily studied, most of the emerging PFAS substitutes remain understudied. Espartero et al., supra note 13, at 4.

[28] See Vause, supra note 2, at 777.

[29] PFAS Analytic Tools, Env’t Prot. Agency (Feb. 4, 2026), https://echo.epa.gov/trends/pfas-tools [https://perma.cc/BWP3-24NX].

[30] The determination of whether to revise ELGs is subject to a cost benefit analysis on “the reasonableness of the relationship between the costs of attaining a reduction in effluents and the effluent reduction benefits derived.” 33 U.S.C. § 1314(b).

[31] Vause, supra note 2.

[32] See, e.g., Natalie Balbuena and Mia DiFelice, The Multi-Million-Dollar Effort to Sway Lawmakers on PFAS, Food & Water Watch (Nov. 7, 2023), https://www.foodandwaterwatch.org/2023/11/07/pfas-lobbying/ [https://perma.cc/MM4T-GF8R].

[33] See Cong. Rsch. Serv., IF12148, Regulating PFAS Under the Clean Water Act (2026).

[34]  See Richard Leahy, PFAS and the EPA Strategic Roadmap: Progress and Challenges, Harv. L. Sch., Env’t. & Energy L. Program (Jan. 13, 2025), https://eelp.law.harvard.edu/pfas-and-the-epa-strategic-roadmap-progress-and-challenges/ [https://perma.cc/4L54-XFTE].

[35] Env’t Prot. Agency, EPA’s Per- and Polyfluoroalkyl Substances (PFAS) Action Plan 2–7 (Feb. 2019), https://19january2021snapshot.epa.gov/sites/static/files/2019-02/documents/pfas_action_plan_021319_508compliant_1.pdf [https://perma.cc/L5VB-AQSE].

[36] Env’t Prot. Agency, PFAS Strategic Roadmap: EPA’s Commitments to Action 2021–2024 (Oct. 2021), https://www.epa.gov/system/files/documents/2021-10/pfas-roadmap_final-508.pdf [https://perma.cc/3UGP-38BC].

[37] See Memorandum from Env’t Prot. Agency Assistant Administrator Radhika Fox on PFAS Discharges in NPDES Permits and the Pretreatment Program and Monitoring Programs to Env’t Prot. Agency Regional Water Division Directors (Dec. 5, 2022), https://www.epa.gov/system/files/documents/2022-12/NPDES_PFAS_State%20Memo_December_2022.pdf [https://perma.cc/5UAE-FRBW].

[38] Final Recommended Aquatic Life Criteria and Benchmarks for Select PFAS, 89 Fed. Reg. 81077 (Oct. 7, 2024).

[39] Key EPA Actions to Address PFAS, Env’t Prot. Agency (July 1, 2026), https://www.epa.gov/pfas/key-epa-actions-address-pfas [https://perma.cc/G5EY-FFJG].

[40] BCLP, supra note 23.

[41] Env’t Prot. Agency, supra note 39; BCLP, supra note 23.

[42] BCLP, supra note 23.

[43] BCLP, supra note 23.

 

Vol. No. 56-1 Natural Resources

Eminent Domain, Public Use, and the Texas Data Center Boom

By: Katie Jeffress & Nicholas Paganini

Introduction

In the United States, eminent domain refers to the government’s power to take private property for public use, provided that the owner receives fair compensation.1 However, “public use” significantly limits the government’s authority.2

The public use requirement ensures that entities that are authorized to take land (e.g., cities and utilities) can only do so if there is a genuine public purpose, rather than a private benefit disguised as a public one.3 This article discusses the public use limitation on eminent domain as it relates to artificial intelligence (AI) data centers. Can eminent domain be used to benefit data centers, and, if so, in what situations?

Modern AI data centers present novel public use issues to the United States’ legal system. In both form and function, data centers are categorically different from any preceding commercial development. These data centers’ utility to the public is also in question, especially when examined alongside the scale and magnitude of their resource consumption.

It is unlikely that private land can be taken and given directly to an AI company to build a data center, as Texas and federal law forbid exclusively private takings.4 However, the sudden, massive demand for data centers in Texas and across the United States draws greater attention to using eminent domain in facilitating their construction. This article defines the limits of eminent domain’s use in aiding data center construction and explores the ways data centers could be considered to have a public use.

Data Centers Have Grown Rapidly

The emergence of generative AI seems poised to change the dynamics of land use in America. In 2025, the amount of money spent on data centers’ operations and computing capabilities surpassed the amount spent on all other commercial building development combined.5 Data centers and information processing technology accounted for approximately 92% of U.S. Gross Domestic Product (GDP) growth in the first half of 2025.6 This growth shows no signs of stopping, as major players, like Google, Amazon, Meta, and Microsoft, are expected to invest hundreds of billions more in 2026.7

Developing AI data centers is a resource-intensive process. A mid-sized data center consumes roughly as much water as a small town, and larger centers require as much water as a city of 50,000 people.8 The average data center uses as much electricity as 10,000 to 25,000 households, and the most extreme examples can draw more electricity than entire cities, and in some cases, states.9 These are neither small nor scarce projects. Axios reports that nearly 3,000 new data centers are currently under construction or planned across the U.S., adding to the more than 4,000 centers operating right now.10 Politicians, including Senator Bernie Sanders and Governor Ron DeSantis, have called for a temporary moratorium or the slowing of AI data center production to allow for legislators to catch up with demand.11

In Texas, developers are planning to cover hundreds of acres of land with energy and water-intensive warehouses. This expansive infrastructure growth would have devastating effects on the land itself, making it no longer suitable for agriculture, housing, or nature-related purposes. Thus, the use of eminent domain to develop AI data centers will contribute to significant ripple effects, affecting Texas’ environment and economy for years to come.

Eminent Domain Will Be an Essential Tool in Enabling Data Center Production

The inevitable growth of AI depends, largely in part, on data centers and the infrastructure required to support them. Eminent domain has been an essential tool for the proliferation of AI data centers in Texas and across the United States, as many of these centers could not have been built without pervasive eminent domain takings.12 Electricity transmission lines, substations, and water infrastructure—all essential for data center development—are candidates for the use of condemnation authority.

Consequentially, electricity providers are planning transmission projects that are explicitly justified by AI data center demands, and will likely involve eminent domain takings.13 The Electric Reliability Council of Texas (ERCOT), the state’s grid operator, has acknowledged that large data centers’ rapid expansion dramatically increases electricity demand and puts pressure on transmission planning.14 ERCOT has also noted that Texas needs 3,000 miles of new long-distance transmission lines, largely “to host more power-intensive cryptocurrency mines and data centers” as tech companies race to develop their AI capabilities.15

These long-distance lines will be built by transmission service providers, such as Oncor or CenterPoint.16 Under Texas law, those utilities have the authority to acquire easements for transmission lines and substations under eminent domain if voluntary deals fail.17

Based on these developments, it appears that eminent domain is being used to develop the infrastructure required to build out data centers. However, eminent domain’s ability to spur data center development is not unlimited. Any taking must satisfy the constitutional requirement of “public use”—a constraint that has been both expanded and policed through decades of judicial interpretation and legislative response—to be lawful.

Eminent Domain Power Is Limited by “Public Use”

Kelo v. City of New London is the most prominent, modern case addressing what public use in eminent domain means under the Takings Clause of the Fifth Amendment. In Kelo, the City of New London sought to redevelop a 32-acre area, which consisted of 115 privately-owned parcels, to stimulate economic growth after a new Pfizer pharmaceutical facility was built.18 Susette Kelo and other property owners sued New London after their properties were taken.19 These property owners argued that the city violated the Fifth Amendment’s takings clause—specifically, that the taking and selling of private property to private developers was not considered public use.20 However, SCOTUS held that these takings qualified as “public use,” despite the fact that the land was not going to be used by the public.21 The Court defined “public use” broadly to include not only direct use or ownership by the public, but also takings that serve a “public purpose.”22 The Court found that the government was not taking land solely to benefit a certain group of private individuals, but was rather following a comprehensive economic development plan with tax and job benefits, and that such justifications deserve deference to legislative judgments on what public needs justify takings.23

While the Kelo decision allows entities to use eminent domain for economic development under the federal Constitution, the Texas Constitution and state statute prohibit such an approach. According to the Texas Constitution, “public use” is the “ownership, use, and enjoyment of the property” by the government or another entity with eminent domain power (i.e., a common carrier).24 Explicitly rejecting the Kelo decision, the Texas Legislature passed Texas Government Code Section 2206.001, which prohibits takings that confer private benefits, are pretexts for private gain, or are primarily for economic development purposes.25 The language of the statute states, in pertinent part, that:

(b) A governmental or private entity may not take private property through the use of eminent domain if the taking:

(1) confers a private benefit on a particular private party through the use of the property;

(2) is for a public use that is merely a pretext to confer a private benefit on a particular private party;

(3) is for economic development purposes . . .26

The Supreme Court of Texas has further defined the public use test in Denbury Green Pipeline-Texas, LLC v. Texas Rice Land Partners, Ltd. Specifically, the Texas Supreme Court determined in this case that a common carrier’s use is considered public when there is a reasonable probability that, at some point after development, the use will assist one or more individuals unaffiliated with the condemner.27 In this case, Denbury Green Pipeline intended to condemn an easement across Texas Rice Land Partners’ land for a carbon dioxide pipeline.28 Texas Rice Land Partners denied Denbury access to survey its land on the grounds that the development would only serve the pipeline company’s private interests.29 Denbury asserted that it had eminent domain authority because the Texas Railroad Commission granted the entity common carrier status, and provided evidence that the gas would be utilized by two companies unaffiliated with Denbury. Ultimately, the Court sided with Denbury, holding that “there was a reasonable probability that, at some point after construction, the [CO2 pipeline] would serve the public by transporting CO2 for one or more customers who will either retain ownership of their gas or sell it to parties other than the carrier.”30

Three Different Roads to “Public Use”

The controlling law for “public use” and modern trends for AI data center construction raises three important considerations. First, how can the “broad” Denbury verdict on assistance to unaffiliated individuals be reconciled with the narrow constitutional and statutory limits on “public use?” Second, could an AI company qualify as a common carrier, expanding eminent domain power, to benefit data center construction? Third, regarding projects outside of Texas, could AI data centers serve an economic development purpose, thereby granting the projects a “public use?”

1. Contextualizing Denbury

The rule from Denbury does not necessarily greenlight any taking by a common carrier that benefits another entity. Although Denbury appears to allow such takings, the case and the Court’s holding must also be understood in the context of the Texas Constitution and Government Code.

The pipeline in Denbury served a common carrier purpose, as it was intended to move the CO2 associated with the two companies and the condemner.31 In contrast, while AI data centers may transmit data, they do not move the tangible products that are traditionally associated with common carriers, such as industrial gas. Instead, these centers consume resources, like water and electricity, to function, without supplying a physical product directly to customers.32 Whether a utility can condemn an easement to supply water or electricity directly to a data center is being debated, as the actions raises questions of public use since the easements would be primarily serving the data center and not local customers.33 According to the Texas Government Code, takings that benefit only one private user are an impermissible use of eminent domain authority.34 Any argument that the AI data center itself serves a public purpose would present a first impression case, requiring fact-specific inquiries on how the center operates.

2. Assessing if AI Companies can Be Common Carriers

Granting AI companies common carrier status could allow AI data centers to condemn land themselves, easing public use inquiries, and solving the apparent contradiction in the Denbury problem described above. If data centers were to gain common carrier status, they may be more likely to act on behalf of the public good and might be less liable to claims of particularized private benefit from a taking. However, it is unlikely that AI companies would be classified as common carriers because their activities fall outside the traditional scope of common carrier status.

The Supreme Court of Texas defines “common carriers” as “those in the business of carrying passengers and goods who hold themselves out for hire by the public,”35 and has instructed that “[w]hen determining whether someone who provides transportation is a common carrier, we look to their primary function.”36

Of the entities that exercise eminent-domain authority in Texas, AI companies share similar circumstances and impacts as pipeline operators.37 Similar to pipelines, AI data centers are privately owned infrastructure projects that serve as intermediaries in the production process, rather than direct public service providers. Pipelines transport oil or gas, rather than creating the resources themselves. Similarly, AI data centers process and transmit data, which then enables downstream economic activity.38 Texas law permits pipeline companies to condemn land only because they qualify as common carriers—entities that serve the public by making their infrastructure available to unaffiliated users.39

However, unlike pipelines, AI data centers do not transport public goods or services on equal terms, nor do they offer open access to their infrastructure.40 Rather, these centers operate as closed systems that serve proprietary ends, making them incompatible with common carriership. Data centers manipulate data to create AI models, which are marketed to the public. Further, the primary function of these centers is to create AI models for profit, not for data transportation.41 Eminent-domain authority likely cannot, therefore, be extended to AI data centers without eroding the common carrier definition.

A better argument may be made for “colocation” data centers, as these centers use shared infrastructure for multiple companies. However, this use still fundamentally differs from the traditional model, in which common carriers operate with open access to the public. Colocation centers do not hold themselves out to the public; instead, they are highly selective in who they partner with and have broad discretion to refuse service.42

For an AI company to plausibly qualify as a common carrier under Texas law, the company would need to operate as a neutral conduit for third-party computation.43 These operations, however, would likely undermine the current business goals that modern AI companies are built upon.

3. Assessing if AI Data Centers Can Provide Sufficient “Economic Development” to Justify a Public Use Determination

SCOTUS in Kelo acknowledged that its decision on public use established only a federal baseline for the requirement and did not preclude states from imposing stricter limitations on eminent domain usage for economic development purposes.44 This decision explains why, as stated above, economic development alone cannot sustain a public use determination for AI data centers in Texas.

Outside of Texas, this question is of greater consequence. There is a powerful national political movement to build AI infrastructure as far and fast as possible on the grounds of economic and strategic development,45 and political winds may shift within Texas to closer align with the federal approach. Specifically, the Trump administration is aggressively exploring ways to increase data center construction.46 In July 2025, President Trump signed an executive order titled Accelerating Federal Permitting of Data Center Infrastructure (EO 14318), which directed federal agencies to streamline permitting, expand incentives, and utilize federal land to support rapid construction of data centers and AI infrastructure.47 In December 2025, Trump also signed an executive order titled Ensuring a National Policy Framework for Artificial Intelligence, stating that he imminently intends to sue states over AI laws that limit the “United States’ global AI dominance.”48 The Trump administration’s position is forcefully anti-regulatory and was likely made with significant input from industry players.49 For these reasons, it is worthwhile to assess the arguments surrounding economic development justifications for data centers.

If economic development were a valid public use for AI data centers, governments could easily take private land for certain projects. In Kelo, SCOTUS held that economic development constitutes a valid “public use” under the Takings Clause of the Fifth Amendment.50 The Court reasoned that the term “public use” should be interpreted broadly to include “public purpose,” reflecting a longstanding policy of deference to legislative judgments in this area.51 Specifically, the Court emphasized that promoting economic development is a “traditional and long-accepted function of government” and that there is “no principled way of distinguishing economic development from the other [previously recognized] public purposes,” such as facilitating agriculture, mining, or eliminating blight.52

The Court in Kelo upheld the City of New London’s decision to take private property as part of a comprehensive economic development plan aimed at revitalizing an economically distressed area.53 The plan included constructing a hotel, restaurants, retail stores, residences, and office space, which the city believed would create jobs, increase tax revenue, and benefit the community as a whole.54 The Court deferred to the city’s determination that the development plan served a public purpose, although the plan involved transferring property to private developers.55 However, the Court cautioned that takings cannot be justified if they are a mere pretext to confer a private benefit.56

Considering the Court’s deferral to the city in Kelo regarding the project’s public purpose, state law and public opposition to AI data centers can provide information on whether a taking for a data center falls under an economic development claim.

It also must be noted that, although job creation is often cited alongside tax revenue as an economic justification for AI data center construction, the facilities themselves are weak long-term job creators.57 Modern data centers require a fraction of the personnel that previous centers needed, and nearly all of the jobs these centers create are temporary and rooted in their construction, not their operation.58

Despite SCOTUS rulings, AI data centers are unlikely to be justified as economic developments. Apart from public political opposition and state laws that currently outlaw economic development as a public use justification, data centers are likely to be substantially different from projects that have sustained public use determinations on economic development grounds and cannot be so justified.

Conclusion

The rapid expansion of AI data centers places unprecedented pressure on Texas land, water, and energy systems, but that pressure does not relax constitutional limits on eminent domain. While utilities may condemn properties to build infrastructure that serves the public, neither economic pressure nor industry necessity permits eminent domain usage to support private facilities built to exclusively benefit individual AI companies. If, however, data centers were common carriers, they would likely be able to condemn land, or, if these centers were justified by economic development-related purposes, governments could take land directly for data centers. Regardless, as Texas navigates rapid AI growth, the public use requirement will remain a chief consideration for all parties involved.

 

Katie Jeffress is an associate at Baker Botts LLP. Her practice focuses on a range of environmental issues at the state and federal level, including regulatory compliance, permitting, and litigation. Her experience includes air and water permitting, waste issues and enforcement matters. She earned her B.S. in Environmental Economics from Juniata College and her J.D. from the University of Texas School of law, with high honors.

Nicholas Paganini is a recent graduate from Texas Law originally from Lake Arrowhead, California. He attended the University of California, Irvine for his B.A. in Environmental Science before coming to UT to study law. He is interested in urban and environmental planning and intends to practice real estate law in Southern California.

  1. U.S. Const. amend. V.; Eminent Domain, Cornell L. Sch.: Legal Info. Inst. (Dec. 2022), https://www.law.cornell.edu/wex/eminent_domain [https://perma.cc/KA3X-44F2] (explaining that the Fifth Amendment of the Constitution states that only the government may exercise this power if they only provide compensation to the property owners).
  2. See Eminent Domain, supra note 1.
  3. Philip Nichols, Nichols on Eminent Domain § 4.7 (Julius L. Sackman et al., 3d ed. 2025).
  4. See Tex. Const. art. 1, § 17; U.S. Const. amend. V.
  5. Mark P. Mills, The Rise of AI: A Reality Check on Energy and Economic Impacts, Nat’l Ctr. for Energy Analytics (Nov. 13, 2025), https://energyanalytics.org/the-rise-of-ai-a-reality-check-on-energy-and-economic-impacts/ [https://perma.cc/FKW8-6XZ4].
  6. Nick Lichtenberg, Without Data Centers, GDP Growth Was 0.1% in the First Half of 2025, Harvard Economist Says, Fortune (Oct. 7, 2025), https://fortune.com/2025/10/07/data-centers-gdp-growth-zero-first-half-2025-jason-furman-harvard-economist/ [https://perma.cc/G28Y-SWCB].
  7. Why AI Companies May Invest More than $500 Billion in 2026, Goldman Sachs (Dec. 18, 2025), https://www.goldmansachs.com/insights/articles/why-ai-companies-may-invest-more-than-500-billion-in-2026 [https://perma.cc/8M29-58N5]; Noel Randewich & Shashwat Chauhan, Nvidia Briefly on Track to Become World’s Most Valuable Company Ever, Reuters (July 3, 2025), https://www.reuters.com/business/nvidia-set-become-worlds-most-valuable-company-history-2025-07-03/ [https://perma.cc/4KU7-KMLQ].
  8. Jon Gorey, Data Drain: The Land and Water Impacts of the AI Boom, Lincoln Inst. (Oct. 17, 2025), https://www.lincolninst.edu/publications/land-lines-magazine/articles/land-water-impacts-data-centers/ [https://perma.cc/5VMG-AXQM].
  9. Id. (“Meta’s Hyperion data center in Louisiana, for example, is expected to draw more than twice the power of the entire city of New Orleans once completed. Another Meta data center planned in Wyoming will use more electricity than every home in the state combined.”).
  10. Alex Fitzpatrick, America’s Data Center Growth Hot Spots, Mapped, Axios (Dec. 18, 2025), https://www.axios.com/2025/12/18/data-center-growth-map-states [https://perma.cc/79FP-D986].
  11. Jenna Ruddock, The Real Race for an AI Moratorium: Stopping Data Centers, Tech Policy Press (Dec. 17, 2025), https://www.techpolicy.press/the-real-race-for-an-ai-moratorium-stopping-data-centers/ [https://perma.cc/5CP2-T4AN].
  12. Arcelia Martin, Explosion of Data Centers Causes Planning Struggles for Texas Power Grid, Tex. Trib. (Oct. 30, 2025), https://www.texastribune.org/2025/10/30/texas-ercot-power-grid-data-centers-puc/ [https://perma.cc/SWW8-KMLP].
  13. Id.
  14. Id.
  15. Claire Hao, Why Texas Needs 3,000 Miles of New Power Lines, More than the Distance Driving Cross Country, Hous. Chron. (Jan. 27, 2025), https://www.houstonchronicle.com/business/energy/article/texas-transmission-crypto-data-centers-20023584.php [https://perma.cc/L5LF-NZB4].
  16. Id.
  17. Id.
  18. Kelo v. City of New London, 545 U.S. 469, 473 (2005).
  19. Id. at 475.
  20. Id.
  21. Id. at 476.
  22. Id. at 480.
  23. Id. at 479–81.
  24. Tex. Const. art. 1, § 17.
  25. Tex. Gov’t Code § 2206.001 (“Limitation on Eminent Domain for Private Parties or Economic Development Purposes”).
  26. Tex. Gov’t Code § 2206.001 (2023).
  27. Denbury Green Pipeline-Tex., LLC v. Tex. Rice Land Partners, Ltd., 510 S.W.3d 909, 914 (Tex. 2017).
  28. Id. at 911.
  29. Id.
  30. Id.; Common Carrier, Cornell L. Sch.: Legal Info. Inst. (June 2021), https://www.law.cornell.edu/wex/common_carrier [https://perma.cc/6TZQ-9Q3V] (defining a common carrier as “a person or a commercial enterprise that transports passengers or goods for a fee and establishes that their service is open to the general public”).
  31. Denbury Green Pipeline, 510 S.W.3d at 914.
  32. See Adam Bridgman & Max Adelman, #5. Data Centers Unplugged: Physical Assets for the Digital Economy, Ironspring Ventures (Oct. 15, 2024), https://ironspring.com/5-data-centers-unplugged-physical-assets-for-the-digital-economy/ [https://perma.cc/ES2P-ENXD].
  33. Nikshep Myle, Your Power Company Can Seize Your Land for AI Data Centers – Here’s How to Fight Back, Yahoo News (July 20, 2026), https://www.yahoo.com/news/us/articles/power-company-seize-land-ai-153147592.html [https://perma.cc/J9Z8-AQ24].
  34. Tex. Gov’t Code § 2206.001.
  35. Mt. Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208, 213 (Tex. 1989).
  36. Id.
  37. Michael Hren, The Case for Heightened Scrutiny: AI Development, Pipelines, and Eminent Domain, Tex. Undergrad. L.J. (Apr. 20, 2026), https://www.texasulj.org/blog/the-case-for-heightened-scrutiny-ai-development-pipelines-and-eminent-domain [https://perma.cc/8AEJ-ZN52].
  38. Consumer Energy All., Data Center Toolkit (2025), https://consumerenergyalliance.org/cms/wp-content/uploads/2025/10/CEA-FL_Data-Center-Toolkit.pdf [https://perma.cc/N2YS-QCZN] (“Beyond jobs, data centers transform economies. They generate billions in investment, boost local tax revenue, and strengthen communities without straining services.”)
  39. Tex. Nat. Res. Code § 111.019(a).
  40. Private vs Public Data Center: What’s Best for Your Data?, Impact (Jan. 4, 2024), https://www.impactmybiz.com/blog/blog-private-vs-public-data-center/ [https://perma.cc/E8VC-SN6H].
  41. See Robert J. Szczerba, What Is a Data Center and Why Are They Suddenly Everywhere?, Forbes (July 9, 2026), https://www.forbes.com/sites/technology/article/what-is-a-data-center/ [https://perma.cc/ZUG2-BV5G].
  42. See David Zorn, A. Fletcher Mangum & Martina Arel, The Impact of Colocation Data Centers on the State and Local Economies of Texas (2003), https://static1.squarespace.com/static/63a4849eab1c756a1d3e97b1/t/66d760bf9e495b6e3fe844ea/1725391088430/The+Impact+of+Colocation+Data+Centers+on+Texas+2023 [https://perma.cc/WT37-S9CH].
  43. See Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, 363 S.W.3d 192, 202 (Tex. 2012) (requiring a “reasonable probability” that the pipeline will transport product for customers who retain ownership or sell to others); Tex. Nat. Res. Code § 111.002 (defining common carriers as entities transporting products “to or for the public for hire”).
  44. Kelo, 545 U.S. at 489.
  45. Exec. Order No. 14179, 90 Fed. Reg. 8741 (Jan. 23, 2025); Exec. Order No. 14365, 90 Fed. Reg. 58499 (Dec. 11, 2025); Exec. Order No. 14318, 90 Fed. Reg. 35385 (July 23, 2025).
  46. Exec. Order No. 14318, 90 Fed. Reg. 35385 (July 23, 2025).
  47. Id.
  48. Id.
  49. See id. (directing financial support, streamlining environmental reviews, and expediting permitting for large data centers).
  50. Kelo, 545 U.S. at 484.
  51. Id. at 480.
  52. Id. at 489.
  53. Id.
  54. Id.
  55. Id.
  56. Id.
  57. Jon Gorey, Data Drain: The Land and Water Impacts of the AI Boom, Lincoln Inst. Land Pol’y (Oct. 17, 2025), https://www.lincolninst.edu/publications/land-lines-magazine/articles/land-water-impacts-data-centers/ [https://perma.cc/VR29-AWJR].
  58. Va. Joint Legis. Audit & Rev. Comm’n, Data Centers in Virginia, https://jlarc.virginia.gov/landing-2024-data-centers-in-virginia.asp [https://perma.cc/K22K-Q2KJ] (last visited Aug. 28, 2026) (noting that a typical 250,000-square-foot data center may have approximately 50 full-time workers, compared with approximately 1,500 workers on site at the height of construction).

Vol. No. 56-1 Waste

The American Nuclear Renaissance Could Come to Texas, but Who Cleans It up?

By Amanda Halter & Jonathan Ghysels

Governor Greg Abbott wants Texas to be the “headquarters of the American Nuclear Renaissance.”[1] While the State has already committed $350M in 2025 to support the construction of nuclear energy facilities,[2] it is still unclear where the nuclear waste will be stored. A recent SCOTUS ruling on interim nuclear waste storage gave a private company rights to store nuclear waste on procedural grounds.[3] However, core questions about legal authority still remain. Uncertainty on the substantive law, coupled with state political resistance, complicate Texas’s path to becoming the country’s nuclear HQ.

Statutory History of Nuclear Waste Regulation

In 1954, Congress passed the first federal statute on regulating nuclear energy, the Atomic Energy Act (AEA).[4] The AEA authorized the predecessor to the Nuclear Regulatory Commission (NRC), the Atomic Energy Commission, to grant licenses for production or utilization of nuclear material.[5] Additionally, the Energy Reorganization Act of 1974 established the NRC and granted it exclusive jurisdiction for licensing and regulation.[6]

To address storage of nuclear waste and spent fuel, Congress passed the Nuclear Waste Policy Act (NWPA) in 1982.[7] The NWPA required the federal government to identify multiple candidate sites for one or more permanent repositories of high-level nuclear waste.[8] In 1987, Congress’s Amendments led to the selection of only one facility: Yucca Mountain in Nevada, having been picked over other sites in states including Washington, South Carolina, and Texas.[9] Located 80 miles from Las Vegas, Yucca Mountain was selected due to its distance from a population center, desert features, and closed hydrologic basin (i.e. without an outlet to the ocean or seas).[10]

Following site testing throughout the 1990s, Congress approved Yucca Mountain as the country’s designated high-level nuclear waste disposal site.[11] Opposition, particularly local opposition, to Yucca Mountain was widespread; Nevada’s official position is that Yucca Mountain is a “singularly bad site to house the nation’s high-level nuclear waste” given its seismic and volcanic activity.[12]  The Obama administration stopped funding the site in 2010.[13] Since 2010, the first Trump administration originally sought to resurrect the site, but reversed course following political opposition.[14] Under the Biden administration, the Department of Energy (DOE) proposed a “consent-based siting” approach.[15]  Consent-based siting allows for high-level nuclear waste to be contained at interim sites until a more permanent site is determined.[16]

Definition of Interim Storage

Absent Yucca Mountain, it is not certain whether NRC can validly authorize interim waste disposal facilities when no permanent site exists. Under 10 C.F.R Part 72, the NRC’s authority to issue Consolidated Interim Storage Facilities (CISFs) is for “interim storage of spent nuclear fuel.”[17] Two companies, Holtec and ISP, seek to construct facilities in New Mexico and Texas, respectively.[18] Both have applied for CISFs, although Holtec has since withdrawn its application.[19]

Since Yucca Mountain is unavailable for disposal, the premise that Holtec and ISP’s facilities would be “interim” has been challenged.[20] New Mexico’s Governor, Lujan Grisham, wrote to President Trump in 2019, opposing Holtec’s then-plan.[21] She argued that although Holtec proposed their site as “interim,” NRC does not have a current or planned permanent repository for the next 120 years, the hypothetical designed life of Holtec’s site when considering 19 planned amendments.[22] As follows, she argued that NRC would be authorizing a license beyond its statutory capacity, since “interim” implies a permanent solution would be available at a defined time.[23]

Circuit Split on NRC’s Authority

Federal circuit courts have not yet addressed the issue of whether CISF licensure is legally valid without a permanent site. However, they have ruled, inconsistently, on whether NRC can issue valid licenses for temporary storage facilities. In 2004, the D.C. Circuit held that the NWPA neither repealed nor superseded NRC’s preexisting authority under the AEA to issue licenses for privately owned away-from-reactor facilities.[24] The Tenth Circuit found the D.C. Circuit’s holding persuasive when hearing a challenge to NRC’s authority in the same year.[25] Additionally, the Tenth Circuit held that Utah’s state laws prohibiting storage of spent nuclear fuel were preempted by federal law.[26]

In contrast, the Fifth Circuit ruled in 2023 against NRC in granting a license to ISP for storage of high-level nuclear waste in the West Texas City of Andrews.[27] The State of Texas and Fasken Land and Minerals Ltd, a local oil and cattle operation, opposed NRC’s decision, both commenting on NRC’s Draft Environmental Impact Statement (DEIS) under the National Environmental Policy Act (NEPA).[28] NEPA requires analysis of the environmental consequences for major federal actions.[29] NRC ultimately issued the license, and the Fifth Circuit found that the D.C. Circuit in Bullcreek correctly held that the NWPA did not repeal the NRC’s licensing authority granted by the AEA; however, the Fifth Circuit nevertheless held that the NWPA fails to provide the NRC with authority to license away-from-reactor storage facilities.[30]

Leaving Substantive Law Unclear, SCOTUS Addresses Procedure

In June 2025, SCOTUS reversed the Fifth Circuit, but sidestepped the substantive issue of authority.[31] Instead, the Court found that neither the State nor Fasken had standing to bring suit under the Hobbs Act, which allows “only a ‘party’ aggrieved by the licensing proceeding [to] seek judicial review,” as Justice Kavanaugh wrote for the majority.[32] The Court further wrote that the AEA requires a challenge be from “any person [or party] whose interest may be affected by the proceeding,” and is “actually ‘admit[ted] … to such proceeding.’”[33] Because commenting on the DEIS was held insufficient to render the State and Fasken as “part[ies]” under the AEA, the Court denied statutory standing for a Hobbs Act suit.[34]  Had the State and Fasken satisfactorily challenged NRC, the Court may have answered whether the Hobbs Act would have successfully stopped the license.[35] The Court chose not to address the underlying statutory authority question, and the decision left NRC’s license in place.[36]

State Politics Provide Further Tension

Aside from the ongoing question of NRC’s licensing authority, political optics of nuclear waste complicates Texas’s bid for becoming America’s nuclear HQ. As demonstrated by New Mexico’s governor in her 2020 letter and by the State of Nevada in its opposition to Yucca Mountain, state government officials have resisted action to have their state be a literal custodian of nuclear waste.[37] Governor Abbott is no different. On the generation side, a Texas-based nuclear renaissance may well have already begun. Texas’s 2025 legislative session ended with the Governor signing H.B. 14, which established a dedicated state agency for nuclear energy, the Texas Advanced Nuclear Energy Office, and pledged $350M for nuclear power in the state.[38] Investment in nuclear energy marks a significant change in state energy policy, as a nuclear power plant has not been built in Texas in decades; the last, Comanche Peak, opened in 1990.[39] On the disposal side, Governor Abbott has echoed New Mexico and Nevada officials, tweeting in 2021 that Texas will not become “America’s nuclear waste dumping ground.”[40]  Following SCOTUS’s 2025 decision in ISP’s favor, the Governor’s office called the Andrews site “illegal.”41] While not necessarily contradictory, Governor Abbott’s statements demonstrate how any state’s governor seeking to bring on the nuclear renaissance are in a difficult political position. Untapping nuclear energy is an economic boon, but being home to its waste is political kryptonite.

Nuclear Power Plants Are the Exception

Texas’s 2025 investment in nuclear could continue despite legal and political tension concerning waste storage facilities. NRC’s unclear authority to license CISFs is not mirrored for nuclear power plants, and Governor Abbott and Texas legislators affirmed in 2025 that disposal of high-level nuclear waste is lawful only when located “at the site of nuclear power reactors and nuclear test reactors operated by a university.”[42] There are myriad reasons for these exceptions; nuclear power plants are less stigmatized publicly due to the high quality jobs required, the power plants provide productive generation, and the waste there is solely from spent fuel on site. By contrast, for waste storage facilities, people may have the perception that other states’ nuclear waste would be shipped in to be dumped. No state official would sign up for that.

One solution for disposal would be to follow the framework of other countries. Canada, for example, has moved forward in 2025 with a decades-long plan to consolidate all of the country’s spent nuclear fuel in a deep underground repository—the world’s second (after Finland’s).[43] Laurie Swami, the CEO of the country’s Nuclear Waste Management Organization (established by the Canadian Parliament), said the project was planned for “60,000 years out.”[44] No project of this scale and capacity in the U.S. would be feasible without Congress reviving Yucca Mountain’s funding or formally scrapping the site for a replacement.

Conclusion

Nuclear waste storage is a challenge for Texas hosting America’s nuclear renaissance. Governor Abbott is hardly alone among governors in opposing interim waste storage in his state, given the political reality of having the sole high-level nuclear waste disposal facility in the country. Still, Texas’s desire to be home to America’s nuclear industry is a public goal of the Governor. Without a substantive determination on interim storage from SCOTUS, the path towards making Texas the U.S. nuclear HQ is not obvious.

Amanda Halter is a managing partner of Pillsbury’s Houston office and is a nationally recognized authority on environmental litigation, regulatory, and public policy matters. She is the co-leader of Pillsbury’s Minerals, Metals and Material Supply Chains and Canada practice teams.

Jonathan Ghysels is a recent Texas Law graduate and former Developments Articles Editor at TELJ. He was involved in the journal and international commercial arbitration moot court team while at Texas Law. He will be a judicial clerk for a U.S. Bankruptcy judge in West Virginia this fall.

 

[1]Governor Abbott Touts Texas Fueling the Nuclear Renaissance, Booming Energy Sector, Off. of the Tex. Governor (Dec. 23, 2025), https://gov.texas.gov/news/post/governor-abbott-touts-texas-fueling-the-nuclear-renaissance-booming-energy-sector [https://perma.cc/EB88-5HRX].

[2] Id.

[3] NRC v. Texas, 605 U.S. 665 (2025).

[4] 42 U.S.C. §§ 2011–2259.

[5] Id.

[6] 42 U.S.C. § 5841; H.R. 11510, 93d Cong. (1974) (enacted) (clarified by Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 207 (1983)).

[7] 42 U.S.C. §§ 10101–10270.

[8] Id. 

[9] Frequently Asked Questions, Eureka Cnty., Nuclear Waste Off. (May 15, 2019), https://www.yuccamountain.org/faq.htm#why_yucca [https://perma.cc/TYZ4-WPWN]; William J. Broad, 2 House Leaders Propose Ending Plans for a Permanent Nuclear Waste Site in Nevada, N.Y. Times (May 27, 1995), https://www.nytimes.com/1995/05/27/us/2-house-leaders-propose-ending-plans-for-permanent-nuclear-waste-site-nevada.html?unlocked_article_code=1.G1A.3jPa.C_RfbgATDqEU&smid=url-share [https://perma.cc/YD6A-G6YF].

[10] Frequently Asked Questions, supra note 9.

[11] Commercial Spent Nuclear Fuel: Congressional Action Needed to Break Impasse and Develop a Permanent Disposal Solution, U.S. Gov’t Accountability Off. (Sept. 23, 2021), https://www.gao.gov/products/gao-21-603 [https://perma.cc/36YU-V9RX].

[12] The Fight Against Yucca Mountain, Nev. Att’y Gen. Aaron D. Ford, https://ag.nv.gov/hot_topics/issue/yucca/ [https://perma.cc/46W2-CTKH] (last visited Mar. 21, 2026).

[13] Bethany Kacich, Our Silent Zombie: Commercial Nuclear Waste Storage in the U.S., The Univ. of Chi.: Crown Fam. Sch. of Soc. Work, Pol’y, & Prac., https://crownschool.uchicago.edu/student-life/advocates-forum/our-silent-zombie-commercial-nuclear-waste-storage-united-states [https://perma.cc/7XLW-4V9Q] (last visited Mar. 21, 2026).

[14] Jeremy Dillon, John Shimkus Will Never Ever Give up on Yucca Mountain, Politico: E&E News (Oct. 20, 2020), https://www.eenews.net/articles/john-shimkus-will-never-ever-give-up-on-yucca-mountain/ [https://perma.cc/PLC2-RJAW].

[15] Benjamin S. Weiss & Kelsey Reichmann, Supreme Court Melts down Opposition to Texas Nuclear Waste Storage Site, Cthouse. News Serv. (June 18, 2025), https://www.courthousenews.com/supreme-court-melts-down-opposition-to-texas-nuclear-waste-storage-site/ [https://perma.cc/Y3X8-S7RW].

[16] Id.

[17] 10 C.F.R. § 72.3.

[18] ExchangeMonitor, Holtec Drops New Mexico Interim Spent Nuclear Fuel Storage Facility, 18 RadWaste & Materials Monitor 38 (Oct. 10, 2025), https://www.exchangemonitor.com/holtec-drops-new-mexico-interim-spent-nuclear-fuel-storage-facility/?printmode=1 [https://perma.cc/7R76-CMEL].

[19] Id.

[20] Id.

[21] Gov. Michelle Lujan Grisham, Letter to Sec’y of U.S. Dep’t of Energy & U.S. Nuclear Regul. Comm’n, Opinion Letter (June 7, 2019), https://www.nrc.gov/docs/ML2035/ML20350B572.pdf [https://perma.cc/ZJQ8-76UC].

[22] Id.

[23] Id.

[24] Bullcreek v. NRC, 359 F.3d 536, 542 (D.C. Cir. 2004).

[25] Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223 (10th Cir. 2004).

[26] Madison L. King, A Radioactive Circuit Split: Addressing Nuclear Waste Storage and Disposal in the United States, 17 Ky. J. Equine, Aric. & Nat. Res. L. 59, 61–62 (2024); Nielson, 376 F.3d at 1242.

[27] Mark Sherman & Emily Foxhall, Supreme Court Clears the Way for Temporary Nuclear Waste Storage in Texas and New Mexico, Tex. Trib. (June 19, 2025), https://www.texastribune.org/2025/06/19/texas-nuclear-waste/ [https://perma.cc/U66J-DL78]; Texas v. NRC, 78 F.4th 827, 841 (5th Cir. 2023).

[28] Jay E. Silberg, Anne Leidich & Hadassah Terry, SCOTUS Affirms Rules for Challenging Nuclear Regulatory Commission Licenses, Pillsbury Winthrop Shaw Pittman LLP (June 26, 2025), https://www.pillsburylaw.com/en/news-and-insights/scotus-rules-challenging-nuclear-regulatory-commission-licenses.html [https://perma.cc/AW48-N5PB].

[29] 42 U.S.C. § 4321.

[30] Texas v. NRC, 78 F.4th 827, 841 (5th Cir. 2023).

[31] NRC v. Texas, 605 U.S. 665, 665 (2025).

[32] Id.

[33] Id at 665–66 (quoting 42 U.S.C. §2239(a)(1)(A)).

[34] Id at 666.

[35] Anthony Cavendar & Jillian Marullo, The Supreme Court’s Administrative and Regulatory Law Rulings in the 2024 Term and Preview of Cases to Be Decided in Fall 2025, JD Supra (Sept. 8, 2025), https://www.jdsupra.com/legalnews/the-supreme-court-s-administrative-and-4191832/ [https://perma.cc/6SFQ-BDQY].

[36] NRC v. Texas, 605 U.S. 665, 665 (2025).

[37] Grisham, supra note 21.

[38] This amount was reduced from an originally pledged $2B; nonetheless, $280M will be earmarked for construction costs for functional nuclear reactors. Eric Killelea, Texas Nuclear Sparks Gold Rush for Specialized Firms (Correct), Bloomberg L. (Nov. 5, 2025), https://news.bloomberglaw.com/business-and-practice/texas-nuclear-push-sparks-legal-gold-rush-for-specialized-firms [https://perma.cc/EW6M-6C4C].

[39] Comanche Peak itself received an early extension to be operated through 2053. Vistra Receives Approval to Operate Comanche Peak Nuclear Plant Through 2053, Vistra Corp (July 30, 2024), https://investor.vistracorp.com/2024-07-30-Vistra-Receives-Approval-to-Operate-Comanche-Peak-Nuclear-Plant-Through-2053 [https://perma.cc/Z4BF-MSRX].

[40] Greg Abbott (@GregAbbott_TX), X (Sept. 14, 2021, at 9:26 CT), https://x.com/GregAbbott_TX/status/1437784875826917386 [https://perma.cc/6ZVP-KCKN].

[41] Sherman & Foxhall, supra note 27.

[42] H.B. 4112, 89th Leg. (Tex. 2025) (enacted).

[43] Nia Williams, Canada Selects Underground Site to Store Used Nuclear Fuel in Perpetuity, Reuters (Nov. 28, 2024), https://www.reuters.com/business/energy/canada-selects-underground-site-store-used-nuclear-fuel-perpetuity-2024-11-28/ [https://perma.cc/H2U5-QTF5].

[44] Id.

 

Vol. No. 55-2 Federal Update

Federal Update

Consumer Product Greenwashing

1. Introduction

Consumer demand for sustainable products is increasing.[1] When making a purchase, consumers may rely on the product package information to make an informed decision. According to a survey conducted by PwC in 2024, consumers are willing to pay a “premium” for products that are environmentally friendly.[2] However, consumers who pay extra for products like “free-range” or “pasture-raised” eggs under the belief that hens are happily roaming an open farm may be in for a surprise.

To attract consumers and investors, companies sometimes advertise their product as more environmentally friendly than it really is. This practice is known as called greenwashing.[3] In 2023, NielsenIQ and McKinsey conducted a consumer data study that identified six types of common Environmental, Social, and Governance (ESG) claims on product packages: (1) animal welfare; (2) environmental sustainability; (3) organic positioning; (4) plant based; (5) social responsibility; (6) sustainable packaging.[4]

This article will provide updates regarding the regulations of consumer product greenwashing by various governmental agencies and will analyze recent greenwashing litigation and agency enforcement in this area. This article will also provide practical advice for both businesses and consumers to proactively identify false and deceptive ESG claims on consumer products.

2. Background and Recent Agency Regulation Updates

At the federal level, the Fair Packaging and Labeling Act of 1967 (FPLA) authorized the Food and Drug Administration (FDA) to issue regulations with respect to foods, drugs, cosmetics.[5] FPLA also authorized the Federal Trade Commission (FTC) to issue regulations with respect to other “consumer commodities” used in the household.[6] The FTC is also authorized under the Federal Trade Commission Act (FTCA) to regulate and prevent fraudulent, deceptive, and unfair business practices.[7]

In 1992, the FTC issued the Guides for the Use of Environmental Marketing Claims (“Green Guides”) to help businesses avoid making unfair or deceptive environmental marketing claims.[8] Since the last update of the Green Guides in 2012,[9]  the FTC announced the most recent review of the Green Guides in 2022,[10] which is expected to become effective in 2024.[11] The new changes will address specific issues such as: claims about offsets and climate change; the use of the terms “recycled” and “recycled content”; representations about energy use and energy efficiency; and whether there is a need for more guidance on the use of words like “compostable,” “degradable,” “ozone-friendly,” “organic,” and “sustainable.”[12]  The public comment period for the proposed Green Guides updates ended on April 24, 2023.[13] After the public comment period closed, the FTC hosted a public Recyclability workshop in New York, discussing the proposed Green Guides updates on the “recyclable” advertising claims.[14]

In addition to the FDA and the FTC, the U.S. Securities and Exchange Commission (SEC) also plays an important role in regulating consumer product advertising by overseeing public companies’ disclosure of their ESG efforts. On March 6, 2024, the SEC adopted new Climate Change Disclosure Rules that require public companies to include extensive and accurate information about their ESG efforts and environmental risk factors relating to climate change in their SEC filings.[15] Under these new rules, claims about environmentally friendly products and the company’s ESG goals may come under greater scrutiny to ensure reliability.[16] The final rules became effective on May 28, 2024.[17]

States also have their own laws to regulate product labeling. For example, in May 2023, Texas Governor Greg Abbott signed Senate Bill 664[18] which requires animal-free food products packages sold in the state to include a “plant-based” label[19] . The law went into effect on September 1, 2023.[20]

3. Case Studies

The role of the FTC Green Guides in greenwashing litigation

Courts have relied on FTC Green Guides to evaluate the accuracy and potential deceptiveness of environmental marketing claims. A California district court recently analyzed such a claim.

In August 2023, consumers brought a punitive class action against Colgate-Palmolive Company (Colgate) for misrepresenting the recyclability of its toothpaste tubes.[21] Consumers alleged that the label of “RECYCLABLE TUBE” was “false, deceptive, misleading and/or unlawful” because most recycling facilities in the nation do not accept these products.[22] Colgate filed a motion to dismiss, arguing that the “Recyclable Tube” labels were accurate descriptions of the product because “recyclable” worked as “an adjective that means capable of being recycled.”[23] Colgate also argued that this claim about the toothpaste tubes met the requirements of “substantial majority” threshold[24] defined in the Green Guides because recycling facilities are available to 87% of consumers.[25]

The Northern District of California District Court also relied on FTC Green Guides to evaluate Colgate’s “Recyclable” claim.[26] Specifically, under Green Guide § 260.12(d), “[i]f any component significantly limits the ability to recycle the item, any recyclable claim would be deceptive. An item that is made from recyclable material, but, because of its shape, size, or some other attribute, is not accepted in recycling programs, should not be marketed as recyclable.”[27] Here, although the Colgate toothpaste tubes were “made from recyclable material,” they were indistinguishable from non-recyclable tubes because of their shape and the possible contamination by the leftover toothpaste unremovable from the tubes.[28] The Colgate “Recyclable Tubes” were also rejected by recycling facilities.[29] Therefore, the court concluded that Plaintiffs had adequately alleged that Colgate’s “Recyclable Tube” claims were misleading.[30] Consequently, the court denied Colgate’s motion to dismiss on February 6, 2024.[31] The case is now pending for mediation with the deadline on July 15, 2025.[32]

The California district court’s analysis in the Colgate case demonstrated the pivotal role of the FTC Green Guides in leading judicial evaluations of the environmental claims’ fairness and deceptiveness.

A warning from the SEC: Watch out for greenwashing in public filings.

In addition to environmental litigation, the SEC issues rules and guidance to regulate environmental marketing claims. For example, in an investigation similar to the Colgate case, the SEC investigated Keurig Dr Pepper Inc. (“Keurig”) making false claims about its products’ recyclability.[33]

On September 10, 2024, the SEC charged Keurig for making inaccurate statements in its annual reports regarding its K-Cup beverage pods’ recyclability. Specifically, Keurig claimed in its 2019 and 2020 Form 10-K filings that its K-Cup pods “can be effectively recycled.”[34] However, the company failed to disclose negative feedback from two large recycling companies which had deemed the commercial recycling of K-Cups commercially infeasible and refused to accept them.[35] Research indicated that environmental concerns were a significant factor for consumers when deciding whether to purchase a Keurig brewing system.[36]

The SEC concluded that Keurig’s “incomplete and inaccurate” disclosure violated Section 13(a) the Securities Exchange Act of 1934 and Rule 13a-1, which require public companies to file “complete and accurate annual reports.”[37] Ultimately, Keurig agreed to pay $1.5 million to settle the claim.[38]

This enforcement action against Keurig shows the SEC’s focus on the completeness and accuracy of public filings. Companies must be mindful not to leave out material information, as such omissions can lead to significant legal and financial consequences.

Questions from recent egg lawsuits: is “free range” mere puffery?

Setting the recyclability issues aside, a recent lawsuit also shed light on the tension between consumers and businesses over false and deceptive environmental marketing claims related to egg products. The core issue, common in greenwashing litigation, is this: To what extent should businesses be allowed to make “mere puffery” claims and how can consumers distinguish between genuine promises and such “too good to be true” marketing claims?

In April 2021, consumers brought a class action against defendant Pete and Gerry’s Organics, LLC (“Nellie’s”), alleging that the company falsely marketed its eggs as “free-range” when in fact the hens were “crammed” into overcrowded sheds—“20,000 at a time,”—with little to no access to outdoor space.[39] Plaintiffs further alleged that they relied on these representations and paid a premium for Nellie’s eggs.[40]

Nellie’s moved to dismiss the lawsuit, arguing that its farming practices met the “Certified Humane Free-Range” standard and the “free-range” label was not misleading.41] Alternatively, it contended that “free-range” was non-actionable puffery, or “a statement that is too vague to constitute actionable misrepresentation.”[42]

The U.S. District Court for the Southern District of New York denied Nellie’s motion, finding that “free range” was not mere puffery because “a reasonable consumer could interpret the disputed product descriptions as factual claims on which he or she could rely.”[43] The case settled in 2023. According to Nellie’s website, the company still markets its eggs as “free-range.”[44] However, it’s unclear whether Nellie’s has made any substantive changes to its farming practices following the settlement.

However, egg-related lawsuits did not stop there. In July 2024, another two consumers sued Eggland’s Best for falsely representating its eggs as “cage free” and including small print on the packaging saying that every hen is “free to roam in a pleasant, natural environment.”[45] In fact, undercover footage revealed “thousands of birds packed into filthy wire battery cages, hardly able to move without crawling over other birds.”[46]

Eggland’s Best filed a motion to dismiss the class action, arguing that the term “cage free” is not misleading because a reasonable consumer would not equate “free to roam” with “free range” or “pasture raised.”[47] The company also argued that the word “pleasant” was “mere puffery.”[48] Plaintiffs countered that “free to roam in a pleasant, natural environment” was not inactionable “puffery” because consumers rely on the product claims about hens’ living conditions.[49]They further argued out that “a claim is not puffery if the opposite of the claim is allegedly true.” Here, “pleasant” was not “puffery” because hens actually lived with stress and pain, the very opposite of “pleasant.”[50]The case is now pending the court’s ruling on the motion to dismiss.

As illuminated in the above egg lawsuits, businesses commonly invoke the “puffery” doctrine as a defense in greenwashing litigation. Disputes more often arise from businesses’ use of vague or undefined terms.

4. Best Practice

To mitigate legal risks, businesses should familiarize themselves with the FTC Green Guides. First, companies should avoid making unqualified claims of environmental benefit.[51]Instead, companies should ensure every environmental benefit claim it makes is supported by “reliable scientific evidence.”[52]When designing product packages, businesses should use “plain language” to make the environmental marketing claims “clear and prominent.”[53] For public companies, disclosures on their ESG efforts should be accurate and complete.

The FTC also publishes articles for consumers to effectively identify common green claims on household products.[54]For example, when products claim to be made with “recyclable” materials, the FTC suggests that consumers check “whether the claims are about the product, the package, or both.” The FTC also encourages consumers to be critical when interpreting green claims. Three questions can help guide consumers in this critical thinking process: (1) Who is responsible for the message? (2) What is the message actually saying? (3) What does it want me to do?[55] Finally, if you see misleading marketing claims, report it to the FTC at ReportFraud.ftc.gov.

5. Conclusion

Recent greenwashing litigation and regulatory enforcements underscore the importance of clarity and accuracy in environmental marketing. Vague and misleading marketing terms might bring businesses short-term benefits, but may also erode consumer trust and harm the company’s social reputation.

For businesses, the key takeaway is to substantiate environmental claims with reliable evidence and avoid the use of vague or undefined terms. Complying with regulatory guidelines including the FTC Green Guides and the SEC filing rules when making environmental marketing claims can help businesses maintain consumer trust and avoid litigation.

For consumers, going green requires critically evaluating green claims and timely reporting misleading advertisements. As sustainability continues to influence consumer decisions, the legal landscape surrounding greenwashing will likely grow more stringent. A culture of transparency and accountability will be essential in fostering genuine sustainability.

Katie Jeffress is an associate at Baker Botts LLP. Her practice focuses on a range of environmental issues at the state and federal level, including regulatory compliance, permitting, and litigation. Her experience includes air and water permitting, waste issues and enforcement matters. She earned her B.S. in Environmental Economics from Juniata College and her J.D. from the University of Texas School of law, with high honors.

Jinhua Zhang is a 3L from China. She attended the Shanghai International Studies University for her bachelor’s degree in Japanese. She joined TELJ during her second year of law school and she is especially interested in environmental litigation.

[1] Environmentally Friendly Products: FTC’s Green Guides, FED. TRADE COMM’N, https://www.ftc.gov/news-events/topics/truth-advertising/green-guides (last visited Nov. 18, 2024).

[2] Consumers Willing To Pay 9.7% Sustainability Premium, Even as Cost-of-Living and Inflationary Concerns Weigh: PwC 2024 Voice of the Consumer Survey, PricewaterhouseCoopers Intern. LTD. (May 15, 2024), https://www.pwc.com/gx/en/news-room/press-releases/2024/pwc-2024-voice-of-consumer-survey.html.

[3] Greenwashing, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/greenwashing.

[4] Consumers Care About Sustainability—and Back It up With Their Wallets, McKinsey & Co. (Feb 6, 2023), https://www.mckinsey.com/industries/consumer-packaged-goods/our-insights/consumers-care-about-sustainability-and-back-it-up-with-their-wallets.

[5] 15 U.S.C.A. §1454(a).

[6] Fair Packaging and Labeling Act: Regulations Under Section 4 of the Fair Packaging and Labeling Act, FED. TRADE COMM’N,, https://www.ftc.gov/legal-library/browse/rules/fair-packaging-labeling-act-regulations-under-section-4-fair-packaging-labeling-act.

[7] 15 U.S.C. § 45 (2006).

[8] 16 C.F.R. § 260.1(a) (2012) (“The guides help marketers avoid making environmental marketing claims that are unfair or deceptive under Section 5 of the FTC Act, 15 U.S.C. 45.”).

[9] Environmentally Friendly Products: FTC’s Green Guides, FED. TRADE COMM’N, https://www.ftc.gov/news-events/topics/truth-advertising/green-guides.

[10] Public Workshop Examining Guides for the Use of Environmental Marketing Claims, FED. TRADE COMM’N  (Mar. 7, 2023), https://www.regulations.gov/document/FTC-2023-0025-0001.

[11] Laura Brett, It’s Not Easy Being Green: Preparing for the FTC’s Updated Green Guides, Adweek (Oct, 19, 2023), https://www.adweek.com/commerce/green-advertising-ftc-2024-guide/.

[12] Lesley Fair, FTC Greenlights Green Guides Comment Extension, FED. TRADE COMM’N (Jan. 31, 2023), https://www.ftc.gov/business-guidance/blog/2023/01/ftc-greenlights-green-guides-comment-extension.

[13] Id.

[14] Talking Trash at the FTC: Recyclable Claims and the Green Guides, FED. TRADE COMM’N  (May 23, 2023), https://www.ftc.gov/news-events/events/2023/05/talking-trash-ftc-recyclable-claims-green-guides.

[15] SEC Adopts Climate Change Disclosure Rules; Court Imposes Temporary Stay, White & Case (Mar. 21, 2024), https://www.whitecase.com/insight-alert/sec-adopts-climate-change-disclosure-rules-court-imposes-temporary-stay.

[16] See Press Release,  U.S. Sec. & Exch. Comm’n, SEC Adopts Rules to Enhance and Standardize Climate-Related Disclosures for Investors https://www.sec.gov/newsroom/press-releases/2024-31(last updated Mar. 6, 2024) (listing some of the disclosures required under the new rule, including but not limited to: “a registrant’s climate-related targets or goals”; “If, as part of its strategy, a registrant has undertaken activities to mitigate or adapt to a material climate-related risk, a quantitative and qualitative description of material expenditures incurred and material impacts on financial estimates and assumptions that directly result from such mitigation or adaptation activities.”).

[17] The Enhancement and Standardization of Climate-Related Disclosures for Investors, 17 C.F.R. §§ 210, 229, 230, 232, 239, 249 (2024).

[18] S.B. 664, 88th Leg., 2023–2024 Sess. (Tex. 2023).

[19] Id. See also Cindy Hazen, Texas Passes New Labeling Law for Plant-Based Food Products, Supply Side Food & Beverage J. (May 31, 2023), https://www.supplysidefbj.com/food-beverage-regulations/texas-passes-new-labeling-law-for-plant-based-food-products.

[20] Hazen, supra note 18.

[21] Della v. Colgate-Palmolive Co., No. 23-CV-04086-JCS, 2024 WL 457798, at *1 (N.D. Cal. Feb. 6, 2024).

[22] Id. at *2.

[23] Id. at *4.

[24] 16 C.F.R. § 260.12(b)(1) (“When recycling facilities are available to a substantial majority of consumers or communities where the item is sold, marketers can make unqualified recyclable claims. The term “substantial majority,” as used in this context, means at least 60 percent.”).

[25] Della, 2024 WL 457798 at *25.

[26] Id. at *24–25.

[27] 16 C.F.R. § 260.12(d).

[28] Della, 2024 WL 457798 at *25.

[29] Id.

[30] Id.

[31] Id.

[32] Weingarter  v. Colgate-Palmolive Co., No. 3:23-cv-04086 (N.D. Cal. Aug 11, 2023).

[33] Keurig Dr Pepper Inc., Exchange Act Release No. 34-100983, at 2–3 (Sep. 10, 2024).

[34] Id. at 2.

[35] Id.

[36] Id.

[37] Securities Exchange Act of 1934 Release No. 100983, Admin. Proc. File NO. 3-22100, at 4 (Sept. 10, 2024).

[38] Press Release, U.S. Sec. & Exch. Comm’n, SEC Charges Keurig Dr Pepper with Making Inaccurate Statements Regarding K-Cup Beverage Pod Recyclability (Sept. 10, 2024), https://www.sec.gov/enforcement-litigation/administrative-proceedings/34-100983-s.

[39] Mogull v. Pete & Gerry’s Organics, LLC, 588 F. Supp. 3d 448, 452 (S.D.N.Y. 2022).

[40] Id. at 454.

[41] Id.

[42] Id. at 453.

[43] Id. at 457.

[44] Nellie’s Free Range, Free Range Eggs, https://www.nelliesfreerange.com/products/free-range-eggs (last visited Nov. 11, 2025).

[45] Complaint, at 1, Janecyk v. Eggland’s Best, Inc., No. 1:24-cv-06222 (N.D. Ill. Jul. 23, 2024) (ECF No. 1).

[46] Id. at 7.

[47] Defendant Motion to Dismiss, at 6, Janecyk v. Eggland’s Best, Inc., No. 1:24-cv-06222 (N.D. Ill. Oct. 7, 2024), (ECF No. 20).

[48] Id.

[49] Plaintiffs’ Response in Opposition to Defendants’ Motion to Dismiss, at 23–24, Janecyk v. Eggland’s Best, Inc., No. 1:24-cv-06222 (N.D. Ill. Oct. 30, 2024) (ECF No. 27).

[50] Id. at 24.

[51] 16 C.F.R. § 260.4(b) (“Because it is highly unlikely that marketers can substantiate all reasonable interpretations of these claims, marketers should not make unqualified general environmental benefit claims”).

[52] 16 C.F.R. § 260.2 (“Marketers must ensure that all reasonable interpretations of their claims are truthful, not misleading, and supported by a reasonable basis before they make the claims. In the context of environmental marketing claims, a reasonable basis often requires competent and reliable scientific evidence”).

[53] 16 C.F.R. § 260.3(a).

[54] Eco-Friendly and Green Marketing Claims, FED. TRADE COMM’N (May 2021), https://consumer.ftc.gov/articles/eco-friendly-and-green-marketing-claims.

[55] Go Ahead — Be Critical, FED. TRADE COMM’N (July 2012), https://consumer.ftc.gov/articles/0308-go-ahead-be-critical.

 

 

Vol. No. 55-2 Waste

Waste

Don’t Be Square, Be Circular: The Global Pursuit of a Circular Economy

1. Introduction

There is a growing global need to address the negative impacts of climate change. The Circular Economy (CE) concept is a framework that seeks to mitigate these adverse effects by reducing biodiversity loss, decreasing pollution, and revitalizing natural resources. This paper will define CE, describe why CE is necessary, and identify the benefits of an environmental law and policy regime that pursues a CE model. Next, this paper will explore successful CE frameworks in France and the Netherlands. Finally, this paper will describe several CE initiatives in the United States and identify how the United States could better pursue a CE framework to help aid in efforts to alleviate the detrimental effects of climate change globally.

2. Defining a Circular Economy

Global consumption—and thus, waste production—of materials such as plastics, metals, and biomass is dramatically on the rise.[1] The natural result of heightened waste production is pollution of the groundwater, soil, and air, as well as resource depletion; and biodiversity loss.[2] These growing issues necessitate a paradigmatic shift to a “more sustainable sociotechnical [system].”[3] One framework that would help address the climate crisis, growing loss of biodiversity, and inequitable social impacts of these ever-increasing global issues is a CE—a framework that conceptualizes economic growth which offsets waste reduction rather than increased consumption alone.[4]

A CE is a production/consumption model and economic system where materials are regenerated, and waste is never produced.[5] Unlike the linear system, which uses materials to make products and eventually discards those products as waste, the CE stops materials from ever becoming waste.[6] According to the Ellen MacArthur Foundation, a leading organization in the CE space, a CE framework rests on three fundamental principles: (1) eliminate pollution and waste, (2) circulate products and materials at their highest value, and (3) regenerate nature.[7] In pursuit of these principles, the CE framework relies on processes like recycling, reusing, and refurbishing to keep materials in the production–consumption cycle for as long as possible, ideally in perpetuity..[8] CE is rooted in creating efficient product life cycles by using renewable energy for design and production as well as designing and disassembling the product to be returned to nature.[9]  Thus, this framework would rely both on consumers purchasing refurbished goods and manufacturers redesigning their products to be “less resource intensive.”[10]

Pursuing a CE could prove revolutionary in slowing the global climate crisis’ progression. Nearly half of global greenhouse gas (GHG) emissions are a result of industry, land use, and agriculture.[11] When recyclable goods are destroyed, their energy and resources are wasted, and destruction itself generates between 5 and 20 times the amount of GHG emissions than if the goods were otherwise recycled and reused.[12] By eliminating waste and keeping products in the line of production for as long as possible, the CE framework allows products to retain their inherent energy, reducing net GHG emissions.[13]

Furthermore, a CE framework would help address inequities in our current linear regime. The current methods of production and waste disposal disproportionately burdens already vulnerable and underserved communities.[14] Landfills and emissions are primarily located in low-income communities, making them more vulnerable to the adverse health and environmental impacts that result from the linear model.[15] A CE would help bridge this gap in the existing inequitable system.

3. Global Case Studies: France and The Netherlands

While the global transition has been slow, some countries have taken significant steps in adopting and implementing a CE framework. Generally, countries with the most ambitious CE transition plans have implemented “framework legislation,”—where their legislature outlined structures orprinciples to guide the development of specific CE laws[16] —and have supplemented that framework with laws and other regulatory and policy measures to target particular waste producing processes.[17] Two countries at the forefront of this transition are France and the Netherlands. Their progress provides insights that are likely globally applicable.

A. France

To combat the growing issue of waste disposal and environmental degradation,[18] France promulgated a broad sweeping piece of CE legislation: the Anti-Waste Law,[19] which contains roughly 50 measures intended to guide a national CE transition.[20] The Anti-Waste Law promotes sustainable resource management from the very beginning of product design; encourages recycling and reusing materials; and sets a goal of phasing out all single-use plastic by 2040, with intermediate benchmarks to  track progress..[21]

The Anti-Waste Law is the first of its kind, beyond any country’s CE legislation in its ambition and scope. France became the first country to categorically ban the destruction of unsold non-food products, requiring companies to reuse or donate them instead.[22] Research indicates that consumers consider the sustainability of products when determining which products to purchase.[23]  To incentivize environmentally conscious consumption, the Law requires various consumer disclosures. For example, it requires companies to disclose a “repairability index” for electronic products to help consumers evaluate a product’s environmental impact when purchasing.[24] Moreover, to eliminate single-use plastic, the Law restricts plastic use across multiple sectors. It prohibits the use of plastic packaging on many types of produce; bans takeout polystyrene containers, plastic straws, and plastic cutlery; mandates public water fountains at certain public institutions; and promotes bulk purchasing to reduce unnecessary packaging.[25] Finally, the Law promotes a “polluter pays” principle where those that produce the pollution must bear the costs of managing it.[26] In practice, manufacturers or importers of goods that produce waste, are required to financially contribute to certified organizations to collect and recycle such waste.[27] To ensure compliance, those that engage in illegal waste dumping could face fines of up to 15,000 Euros.[28]

B. The Netherlands

Like France, the Netherlands is considered one of the leading countries in the CE transition, with a goal of complete circularity by the year 2050.[29] The National CE program identifies four ways to achieve a CE: (1) ultimately eliminating non-renewable materials in production; (2) substituting non-renewable materials for renewable, sustainably produced materials; (3) expanding the life-cycle of a products in production; and (4) improving processing so that products can be reused to reduce waste.[30]

Using this framework, the Netherlands formulated a policy to target specific products and industries that are the most environmentally burdensome. These include consumer goods, plastics, construction, and manufacturing.[31] The Dutch Cabinet is responsible for implementing the program to achieve complete circularity, and the framework requires government-wide support and compliance.[32] Furthermore, to help hasten the CE transition, the Dutch approach recently transitioned from being largely non-binding and voluntary to mandating standardized compliance across multiple sectors.[33]

4. United States

The United States has not yet nationally pursued an explicit and broad CE framework like that of France or the Netherlands. This may be because of the constraints of the U.S. Constitution and the U.S. federalist structure. Otherwise, the United States may not have a physical imperative to embrace CE when compared to other countries, given its expansive geography and relative wealth. The United States has a vast surface area to place landfills and other facilities to dispose and store byproducts of production and unused materials.[34] Regardless of the explanation, at least so far, progress toward a CE has been relatively piecemeal, primarily undertaken federally by the Environmental Protection Agency (EPA) via guidance documents and resources, and by individual states.[35] The existing non-comprehensive approach leaves holes in the statutory and regulatory regime, that individual states cannot address.[36] For instance, the United States has not taken the initiative to address the significant environmental impact of shipping waste overseas.[37] A broad framework similar to that of France and the Netherlands could potentially address the gaps left by the current scheme for tackling climate change.

The EPA and individual states have taken steps that demonstrate how a CE framework would safeguard biodiversity and prevent the spread of climate change.[38] In 2020, the EPA Administrator announced a National Recycling Goal to increase recycling to 50% by the year 2030.[39] Furthermore, in 2022 the EPA released a report titled “Progress in Building a Circular Economy,”[40] which outlined federal sustainability advancements through 2022 in furtherance of a Circular Economy.[41] This included the publication of part one of the Circular Economy Strategy Series, the development of strategies to reduce plastic waste, and general next steps toward building a Circular Economy.[42] In June 2024, the EPA—along with the White House, U.S. Department of Agriculture, and U.S. Food and Drug Administration—released the National Strategy for Reducing Food Loss and Waste and Recycling Organics.[43] This strategy identified four main policy objectives to “build[] a more circular economy for all,” which includes preventing food loss, preventing food waste, increasing recycling for all organic waste, and supporting policies that incentivize and encourage food loss, waste prevention, and organics recycling.[44] Furthermore, the White House released reports that describe CE initiatives to combat climate change.[45]

While legislatively limited, support for a CE transition can be found in new laws and policies such as the CHIPS and Science Act, the Save our Seas Act 2.0, and the Inflation Reduction Act. While significant, these laws are narrow in scope, as they target only specific sectors and often fail to embrace CE as the underpinning policy issue. Thus, the effects are not as robust as necessary to effectuate circularity on a large scale.[46] For example, the 2020 Save Our Seas Act 2.0 specifically addresses marine debris by establishing requirements and incentives aimed at preventing plastic pollution.[47] The Act states that the EPA is responsible for developing a report on how to use plastic in consumer products innovatively.[48] Further, the CHIPS and Science Act identifies the CE transition as necessary to achieve the national science and technology research objectives.[49] In 2022, the White House Office of Science and Technology Policy, inaugurated the Net-Zero Game Changers Initiative stating that a national framework to achieve a CE is necessary and calling on administrative agencies to act in achieving net-zero GHG emissions by 2050.[50] Moreover, the Inflation Reduction Act (IRA) provides incentives for the transition to clean energy,[51] encouraging wind and solar investment.[52] Notably, however, the IRA does not explicitly identify a “circular economy” as the goal.[53] While these policies are essential, they fail to establish a comprehensive framework mandating multi-sector CE compliance. Instead, they only address individual waste-producing processes or list broad CE goal without any enforceable actions. To combat the climate crisis, mandatory CE legislation may prove more effective.

Meanwhile, some states have undertaken CE initiatives that require mandatory compliance. For example, multiple states have total bans on single-use plastics.[54] Illinois recently passed legislation that permits customers to bring reusable containers to restaurants.[55] California passed a bill to address textile waste as a result of fast fashion by creating a framework for textile producers to recycle garments.[56] While state-based policies are moves in the CE direction, to fully realize and effectuate such a paradigmatic shift, the nation will likely need to evolve from the piecemeal approach to one that is grounded in broad federal framework legislation that expansively targets a CE transition.

5. Conclusion

Ultimately, the U.S. pursuit of a CE is not in the global lead, with opportunities for acceleration. At the federal level, action has been primarily undertaken by the EPA via guidance documents and resources, embracing White House goals and policies, with some piecemeal support from the legislature embedded in laws such as the CHIPs and Science Act and the Inflation Reduction Act. A federal legislative CE framework has not yet emerged, compared to France and the Netherlands, which have undertaken broad programs that often mandate compliance across multiple sectors with continued more particularized requirements added to meet needs over time. To transition to a CE at the national level, the United States may need a broad federal law that mandates compliance across multiple sectors.   

Amanda Halter is managing partner of the Houston office of the international law firm of Pillsbury Winthrop Shaw Pittman, a member of the firm’s Environmental & Natural Resources practice section and co-leader of the firm’s Crisis Management team. Amanda helps companies resolve environmental liabilities and negotiate compliance conditions, as well as manage financial and reputational losses associated with a crisis. Her experience includes a diverse array of environmental regulatory, litigation and crisis matters, including contamination investigations and remedial actions, natural resource damages assessments and claims, environment, health and safety compliance counseling, mass toxic tort actions, permitting and planning for large-scale industrial projects, and project impacts mitigation and restoration strategies. Amanda is a native of Houston, a graduate of Rice University and The University of Texas School of Law.

Grace Wright is a 3L from Arlington, Texas. She attended Tulane University for her B.S. in Political Science and Psychology and joined TELJ during her second year of law school.

 [1] Eur. Comm’n, Commc’n from the Comm’n to the Eur. Parl., the Council, the European Econ. And Social Comm. And the Comm. Of the Regions, A New CE Action Plan For a Cleaner and More Competitive Earth, at 3, COM (2020) 98 final (Nov. 3, 2020).

[2] Martin Geissdoerfer et al., A CE—A New Sustainability Paradigm?, 143 J. of Cleaner Prod. 757, 757 (2017).

[3] Id. at 757.

[4] Bridget T. Schuster, As the World Turns: Global Efforts Toward a CE, 37 Nat. Res. & Env’t 28, 28 (2022).

[5] What is a Circular Economy?, Ellen MacArthur Found., https://www.ellenmacarthurfoundation.org/topics/circular-economy-introduction/overview (last visited Feb. 12, 2025) [hereinafter What is a Circular Economy?].

[6] Id.

[7] Id.

[8] Id.; What is a Circular Economy?, Env’t Prot. Agency, https://www.epa.gov/circulareconomy/what-circular-economy (last updated Aug. 26, 2024) [hereinafter CE EPA].

[9] Schuster, supra note 4.

[10] CE EPA, supra note 8.

[11] Fixing the Economy to Fix Climate Change, Ellen MacArthur Found. (Nov. 15, 2022), https://www.ellenmacarthurfoundation.org/news/fix-the-economy-to-fix-climate-change-the-role-of-food-and-mobility [hereinafter Fixing the Economy to Fix Climate Change].

[12] France’s Anti-Waste and CE Law, Ellen MacArthur Found. (Sept. 12, 2022), https://www.ellenmacarthurfoundation.org/circular-examples/frances-anti-waste-and-circular-economy-law [hereinafter France’s Anti-Waste and CE Law].

[13] Fixing the Economy to Fix Climate Change, supra note 11.

[14] CE EPA, supra note 8.

[15] Id.

[16] Framework Law, Sci. Direct, https://www.sciencedirect.com/topics/social-sciences/framework-law (last visited Oct. 16, 2024).

[17] G. Gordon Davis & Jessica Anne Hall, CE Legislation—The International Experience, Reusable Indust. Packaging Ass’n, https://www.reusablepackaging.org/insights/circular-economy-legislation-the-international-experience/ (last visited Feb. 16, 2025).

[18] France produced 4.6 tons of waste per capita and 4.5 million tons of total plastic waste in 2016, causing significant environmental damage where 10,000 tons of waste were dumped into the Mediterranean Sea and 80,000 tons polluted the environment. Annually, the cost of unsold products subsequently destroyed was valued at 630 million Euros. France’s Anti-Waste and CE Law, supra note 12.

[19] See La 2050-105 du loi anti-gaspillage pour une economie circulaire [The Anti-Waste Law for a CE], Journal Officiel de la Republique Francaise [J.O.] [Official Gazette of France].

[20] A French Act of Law Against Waste and for a CE, Euro. CE Stakeholder Platform, https://circulareconomy.europa.eu/platform/en/strategies/french-act-law-against-waste-and-circular-economy (last visited Oct. 16, 2024).

[21] Janet Domenitz, How France’s Anti-Waste Law Targets Plastic Waste at its Source, Frontier Grp. (Sept. 28, 2023), https://frontiergroup.org/articles/how-frances-anti-waste-law-targets-plastic-waste-at-its-source/; see also France’s Anti-Waste and CE Law, supra note 12.

[22] France’s Anti-Waste and CE Law, supra note 12.

[23] See Sylvie Gallage-Alwis, Nancy Forster, & Eva Biezunski, France’s New Anti-Waste Law 1 (2020), https://www.signaturelitigation.com/wp-content/uploads/2020/03/Signature-Litigation-Paris-Briefing-Note-Frances-new-anti-waste-law-March-2020.pdf.

[24] France’s Anti-Waste and CE Law, supra note 12.

[25] Elisabeth Borne and Brune Poirson, The Anti-Waste Law in the Daily Lives of the French People, What Does That Mean in Practice? 8 (2020), https://circulareconomy.europa.eu/platform/sites/default/files/anti-waste_law_in_the_daily_lives_of_french_people.pdf; Domenitz, supra note 21.

[26] Gallage-Alwis, Forster, & Biezunski, supra note 24, at 2; Borne & Brune Poirson, supra note 29, at 27.

[27] Gallage-Alwis and Forster, & Biezunski, supra note 24, at 2.

[28] Id.

[29] Circular Dutch Economy by 2050, Gov’t of the Netherlands, https://www.government.nl/topics/circular-economy/circular-dutch-economy-by-2050 (last visited Oct. 16, 2024).

[30] Id.

[31] The Netherlands Central Government, English Summary National CE Programme 2023-2030, at 4 (2023), https://National+Circular+Economy+Programme+2023+-2030+Summary%20(1).pdf.

[32] Id.

[33] Vivianne Heijnen, National Circular Economy Programme 2023-2030, at 5 (2023), https://NPCE+Circulaire+Economie+rapport+Engels%20(1).pdf.

[34] Schuster, supra note 4, at 29.

[35]  Id.

[36] Jennifer Gentile, Adoption of a CE in the United States, Am. Bar Ass’n (Feb. 8, 2024), https://www.americanbar.org/groups/environment_energy_resources/resources/newsletters/environmental-social-governance-sustainability/adoption-circular-economy-in-us/?abajoin=true.

[37] Id.

[38] See Mark Weick & Nicole Ray, Circular Economy: Navigating the Evolving Global Policy Landscape, EY (Dec. 16, 2022), https://www.ey.com/en_us/insights/chemicals/circular-economy-navigating-the-evolving-global-policy-landscape.

[39] U.S. Env’t Prot. Agency, U.S. National Recycling Goal, https://www.epa.gov/circulareconomy/us-national-recycling-goal (last updated Feb. 22, 2024).

[40] CE EPA, supra note 8.

[41] Id.

[42] U.S. Env’t Prot. Agency, Building a Circular Economy for All: Progress Toward Transformative Change 2–5 (2022),  https://www.epa.gov/system/files/documents/2022-09/EPA_Circular_Economy_Progress_Report_Sept_2022.pdf

[43] See U.S. Env’t Prot. Agency, National Strategy for Reducing Food Loss and Waste and Recycling Organics, https://www.epa.gov/circulareconomy/national-strategy-reducing-food-loss-and-waste-and-recycling-organics (last updated Jan. 24, 2025).

[44] Id.

[45] Sally Benson et al., Advancing a Circular Economy to Meet Our Climate, Energy, and Economic Goals, The White House (July 5, 2023), https://www.whitehouse.gov/ostp/news-updates/2023/07/05/advancing-a-circular-economy-to-meet-our-climate-energy-and-economic-goals/.

[46] Gentile, supra note 38.

[47] Save Our Seas 2.0 Act, Pub. L. No. 116-224, 134 Stat. 1072 (2020); see also Save Our Seas Act 2.0, One Planet (Jan. 31, 2022), https://www.oneplanetnetwork.org/knowledge-centre/policies/save-our-seas-act-20 [hereinafter SOS, One Planet].

[48] SOS, One Planet, supra note 49.

[49] CHIPS and Science Act, Pub. L. No. 117-167, 136 Stat. 1634, § 206(b)(1)(A)(ii) (amending Section 206 of the National Science and Technology Police Organization, and Priorities Act of 1976, 42 U.S.C. 6615); see also Time to Act: Seizing the Potential of U.S. CE Innovation, Ellen MacArthur Found. (June 7, 2023), https://www.ellenmacarthurfoundation.org/articles/time-to-act-seizing-the-potential-of-us-circular-economy-innovation [hereinafter Time to Act].

[50]Time to Act, supra note 51; The White House, U.S. Innovation to Meet 2050 Climate Goals: Assessing Initial R&D Opportunities 5 (2022), https://www.whitehouse.gov/wp-content/uploads/2022/11/U.S.-Innovation-to-Meet-2050-Climate-Goals.pdf.

[51] U.S. Env’t Prot. Agency, Summary of Inflation Reduction Act Provisions Related to Renewable Energy, https://www.epa.gov/green-power-markets/summary-inflation-reduction-act-provisions-related-renewable-energy (last visited Feb. 13, 2025).

[52] Aly Bryan, How the Inflation Reduction Act Will Accelerate the Case for Investing in the Circular Economy in the United States, Closed Loop Partners (Aug. 18, 2022), https://www.closedlooppartners.com/how-the-inflation-reduction-act-will-accelerate-the-case-for-investing-in-the-circular-economy-in-the-united-states/.

[53] Gillian Tett, Why ‘Circularity’ is Missing from the U.S. Climate Incentives Bill, Fin. Times (Feb. 14, 2023), https://www.ft.com/content/8f4ffd3d-c6f6-44ca-a01b-96a6cd5f4ba2.

[54] Gentile, supra note 38.

[55] Id.

[56] Danielle Garno & Vicky Yuan, A Closer Look at California’s Recently Passed Responsible Textile Recovery Act of 2024, Holland & Knight (Oct. 17, 2024), https://www.hklaw.com/en/insights/publications/2024/10/a-closer-look-at-californias-recently-passed-responsible.

Vol. No. 55-2 Water Rights

Water Rights

The U.S. Government Stands on the Opposite Side of the River as a United Group of States: Updates in Texas v. New Mexico and Colorado

1. Introduction

For around a decade, Texas and New Mexico have been in litigation over the distribution of the Rio Grande River’s waters.[1] After years of disputes, a proposed consent decree between the states was thwarted by the federal government’s objection.[2] The  Supreme Court upheld this, recognizing distinct federal interests in the dispute.[3] However, this decision is likely to affect the delicate balance of authority between state and federal governments in future management of interstate water rights.[4]

2. The Rio Grande Compact

The Rio Grande River is one of the most valuable natural resources in the American West.[5] It originates in southern Colorado, flows through New Mexico, and then forms the international border between Texas and Mexico.[6] Controversies over its date back to the 1880’s, when strife arose between irrigators in Mexico and the United States. In 1906, an international treaty between the United States and Mexico allocated 60,000 acre-feet of Rio Grande water to Mexico and prompted “construction by the federal government of a dam at Elephant Butte, New Mexico.”[7] The U.S. government also entered into separate “Downstream Contracts” with New Mexico and Texas to supply water captured and managed by the Bureau of Reclamation via the federal Rio Grande Project irrigation system.[8] To further address interstate water allocation, Colorado, New Mexico, and Texas entered into a temporary agreement called the Rio Grande Compact of 1929.[9] This interstate agreement was negotiated based on the compact clause of the U.S. Constitution, with approval from the federal government.[10] Nine years later the states entered the more permanent Rio Grande Compact of 1938, which remains in effect today.[11]

The Rio Grande is a vital resource to farmers living in the Chihuahuan Desert, spanning Texas and New Mexico, where rainwater is limited.[12] The Compact’s water obligations significantly impact residents of both states.[13] Under the Rio Grande Compact, Colorado must deliver a sufficient quantity of water to New Mexico, which must then enough to the Elephant Butte Reservoir to feed the Rio Grande as it flows into Texas.[14] The required deliveries are “calculated on a sliding scale based on the river flow” as stated in the compact.[15] However, the Compact does not explicitly define how to divide waters “between western Texas and southern New Mexico after New Mexico has met its delivery obligation at Elephant Butte Reservoir.”[16] Within just 20 years of the Compact’s passage, drought and groundwater pumping in New Mexico reduced the water flowing across the New Mexico-Texas border.[17] For much of the last half-century, the two states have been at odds over their fair share of the Rio Grande’s waters.[18]

3. Texas v. New Mexico and Colorado – An Overview

In 2013, Texas sued New Mexico for allegedly violating the Rio Grande Compact.[19]  Texas alleged that New Mexico permitted local entities to pump excessive groundwater, intercepting water from traveling to Texas via the Rio Grande.[20] Texas claimed that such groundwater pumping not only violated the Compact but also infringed on its legal right to groundwater in the Basin that is hydrologically connected to the river.[21] Texas sought “declaratory, injunctive, and monetary relief,” including an injunction commanding New Mexico to prevent further groundwater pumping.[22] In response, New Mexico contended that Compact’s language only obligates it to deliver sufficient water to Elephant Butte, which it asserted it has done.[23] New Mexico refuted the argument that groundwater pumping that depletes water below Elephant Butte is a violation of the Compact.[24]

In 2014, the federal government filed its own complaint against New Mexico and sought to intervene in Texas’s lawsuit.[25]  Like Texas, the federal government challenged New Mexico’s groundwater pumping, arguing that it interfered with the efficiency of the federal Rio Grande Project.[26]  Justice Gorsuch described these claims as “allegations that parallel Texas’s’” in his 2018 Supreme Court majority opinion.[27] The Court held that the United States was permitted to intervene in this case due to its “distinctively federal interests,” but noted that the United States is not automatically entitled to intervene in every dispute stemming from an interstate compact under the Compact Clause.[28] The Court intervention here because: 1) “the [Rio Grande] Compact is inextricably intertwined with the Rio Grande Project and the Downstream Contracts,” 2) the United States plays an “integral role” in the Compact’s operation, 3) the Compact could jeopardize the federal government’s treaty obligations, and 4) the United States sought substantially the same relief as Texas.[29] In sum, the Court permitted the United States to proceed because the Compact is intertwined with federal projects and treaty obligations, and because the federal government’s claims aligned with those of Texas.

4. The 2024 SCOTUS decision in Texas v. New Mexico to reject the States’ proposed consent decree

As the litigation advanced for around a decade, the federal government’s claims and requested relief against New Mexico remained somewhat consistent, but Texas’ position changed.[30] Rather than continuing to pursue litigation, Texas and New Mexico negotiated a “consent decree” that “updated the method used to calculate the amount of water New Mexico had to deliver downstream,” using a new system of calculations known as the EEPI method.[31] The proposed consent decree would have practically replaced the previous terms of the Compact as the states agreed that being in compliance with the consent decree would be sufficient for the states to also be in compliance with the Compact.[32] The consent decree would “incorporate New Mexico’s groundwater pumping into the Compact” through adopting the new EEPI method to apportion Rio Grande water.[33]

However, the U.S. government objected to this proposed consent decree.[34] The federal government claimed that the states’ proposed consent decree “would dispose of its Compact claims without it consent.”[35]  The U.S. government maintained that it still had valid claims against New Mexico for violating the Rio Grande Compact, regardless of Texas’s choice to pursue a consent decree. The Court was then forced to address whether the federal government could still pursue the same claims in the same litigation, even though no other signatory state to the Compact maintained a claim.[36] A narrow 5-4 majority of the Court held that the United States still had its own valid individual claims under the Compact in this case, and that the proposed decree would unlawfully dispense with them.[37]

The analysis determining whether the United States still had valid Compact claims despite Texas’s desire to settle mostly followed the same reasoning in the 2018 opinion which determined that the United States was permitted to intervene in the litigation. Writing for the majority, Justice Jackson states that “the same considerations that convinced [the Court] to let the [United States] intervene” in the lawsuit led the Court “to conclude that the [United States] still has valid Compact claims[].”[38] Interstate compacts are mainly agreements between the participating States; however, the federal government can engage in compact suits to protect “distinctively federal interests” tied to that compact.[39] With the Rio Grande Compact, the United States still has the same commitments in ensuring the Rio Grande Project’s efficiency, the execution of the Downstream Contracts, and the fulfillment of the treaty with Mexico. The distinct federal interests involved are: “(1) the [U.S.’s] duties under the Project and the Downstream Contracts, (2) the [U.S.’s] integral role in the Compact’s toperation, and (3) the [U.S.’s] treaty obligations.[40]  Although the United States had parallel interests to Texas and brought a similar claim, these interests are “distinctively federal.”[41] Regardless of Texas’s position in the litigation, the Court determined that these interests remained with the federal government.

Moreover, the Court held that as the United States government had valid compact claims and had not agreed to the proposed consent decree, the consent decree would impermissibly dispose of those valid claims.[42] Even though U.S. and Texas interests have diverged, Texas is not permitted to settle with New Mexico via a consent decree if it extinguishes the federal government’s claims without the federal government’s consent.[43] The dissent authored by Justice Gorsuch, who wrote the previous 2018 opinion in this case, expresses concern at this decision. Gorsuch urges that when a consent decree consistent with the Compact has been accepted by the states initially embroiled in the litigation, the federal government’s claims should be extinguished here, and the United States should pursue “any valid independent claims it may have in the lower courts.”[44] Still, despite Gorsuch’s dissent, the majority decision sides with the federal government and directs this ten-year-old lawsuit to continue.

5. The impact of the 2024 Texas v. New Mexico SCOTUS decision

While the most direct impact of the Supreme Court decision in 2024 is that the litigation between Texas and New Mexico will persist, the opinion may provide a broad and powerful example of the balance of power in interstate compact disputes.  The dissent worries that the Court gives the federal government license to undo inter-state efforts to resolve water disputes whenever the United States has sufficient federal interests.[45]  Gorsuch writes that the majority decision disregards the long practice of federal deference to state water law in the management of federal reclamation projects.[46] The impact of this decision shifts the delicate balance between state and federal governments in the management of interstate water resources towards more federal authority and input.  It may therefore be harder to “secure the kind of cooperation between federal and state authorities” in future water rights management issues.[47]

Emily Rogers is the managing partner at Bickerstaff Heath Delgado Acosta LLP and practices in the areas of water and environmental law. She has extensive experience representing cities, river authorities, and water districts in matters involving surface and groundwater rights, water and wastewater utility matters, and industrial and municipal solid waste disposal cases. Emily earned her B.A. in History from the University of Texas, her M.A. in History from Southwest Texas State University, and her J.D. from the University of Houston Law Center.

Kimberly Kelley is an attorney at Bickerstaff Heath Delgado Acosta LLP and practices in the areas of municipal, open government, water, and environmental law. She earned her undergraduate degree from Texas A&M University and graduated Texas Tech University

[1] See Frances Williamson, Water and Federalism in Texas v. New Mexico, 2024 Harv. J.L. & Pub. Pol’y  28, 30 (2024)

[2]  Id. at 31.

[3] Id.

[4] Id. at 33.

[5] Tylynn R. Payne, In (Not So) Deep Water: The Texas-New Mexico Water War and the Unworkable Provisions of the Rio Grande Compact, 52 Tex. Tech L. Rev. 669, 670 (2020).

[6] Douglas R. Littlefield, The Rio Grande Compact of 1929: A Truce in an Interstate River War, 60.4 Pacific Hist. Rev. 497, 497 (1991).

[7]Id.

[8] Frances Williamson, Water and Federalism in Texas v. New Mexico, 2024 Harv. J.L. & Pub. Pol’y  28, 2 (2024).

[9] William A. Paddock, The Rio Grande Compact of 1938, 5 U. Denv. Water L. Rev. 1, 3 (2001).

[10]  Littlefield, supra note 6 at 499, 501, and 512–15.

[11] Id. at 514–15; Colo. Rev. Stat. Ann. § 37-66-101

[12] Payne, supra note 5, at 670–72.

[13] Id.

[14] Williamson, supra note 1, at 30.

[15] Priscilla M. Hubenak and Kellie E. Billings-Ray, Essentials of Texas Water Resources §14.11 (8th ed.  2024).

[16] Id.

[17] Williamson, supra note 1, at 30.

[18] Payne, supra note 5, at 682.

[19]  Texas v. New Mexico, 602 U.S. 943, 947 (2024).

[20] Id. at 951.

[21] Payne, supra note 5, at 683.

[22] Texas, 602 U.S. at 951.

[23] Payne, supra note 5, at 684.

[24] Id.

[25] Texas, 602 U.S. at 952.

[26] Id. at 951–52.

[27] Texas v. New Mexico, 583 U.S. 407, 411 (2018).

[28] Id. at 412–13 (quoting Maryland v. Louisiana, 451 U.S. 725, 724 n.21 (1981).

[29] Id. at 413–15

[30] Williamson, supra note 1, at 3.

[31] Texas, 602 U.S. at 952,

[32] Id.

[33]  Id. at 962 (emphasis omitted).

[34] Williamson, supra note 1, at 3.

[35] Id.

[36] Id. at 955.

[37] Texas, 602 U.S. 943 at 954.

[38] Id.

[39] Id.

[40] Id. at 959

[41]  Id. (emphasis omitted).

[42] Williamson, supra note 1, at 3.

[43] Texas, 602 U.S. at 964

[44] Id. at 979 (Gorsuch, J., dissenting).

[45] Williamson, supra note 1, at 1.

[46] Texas, 602 U.S. at 983 (Gorsuch, J., dissenting).

[47] Id. at 990.

Vol. No. 54-1 Utilities

Utilities

What’s in Your Water Law? Not Much.

How Did We Get Here?: What is Happening in Louisiana

The Mississippi River is one of the most important commercial waterways in the world, carrying 500 million tons of shipped goods per year ranging from petroleum products, iron, and steel to coffee and paper.[1] The river is often treated as just a commercial waterway rather than what it is—a vital part of a complex ecosystem and source of water to millions. To accommodate larger vessels that use the expanded Panama Canal, Louisiana Governor John Bel Edwards authorized the dredging of the river to deepen it from forty-five feet to fifty feet in 2020.[2] The Governor’s Office projected that every additional foot of depth will allow an additional $1 million in cargo transportation on the river.[3] The U.S. Army Corps of Engineers completed a supplemental environmental impact statement to assess the impact of the project pursuant to the National Environmental Policy Act (NEPA).[4] The study had significant findings on the potential risks for drinking water.

The Mississippi River spans over 2,000 miles, from Minnesota to the Gulf of Mexico, and supplies more than fifty municipalities—around twenty million people—with drinking water.[5] The bed of the river is lower than sea-level.[6] This, coupled with the fact that salt water is denser than freshwater, causes salt water to push upstream underneath the fresh water in the shape of a “wedge” or a doorstop when the flow of the river is weakened.[7] The water flow must be 300,000 cubic feet per second to keep the salt water from flowing upstream.[8] During times of drought, the flow rate of the river may drop below 300,000 cubic feet per second, allowing salt water to travel further and further upstream, increasing the salinity of the river and thus the drinking water.[9] By deepening the river, the difference between the bed of the river and sea-level increased, and so did the risk of saltwater intrusion: an outcome acknowledged by the Army Corps itself.[10] The environmental impact study found that deepening the river would “increase . . . the duration and extent of the [sic] saltwater intrusion that occurs during annual low water events.”[11] Another significant factor in the greater frequency of saltwater intrusion is the rising sea level as a result of the climate crisis.[12] Experts believe the threat of salt water reaching other major cities is growing, particularly in Louisiana, Florida, California, and the Northeast.[13] While engineering is not the only factor increasing the risk of saltwater intrusion, it is arguably the factor most easily changed.

After the river was deepened to forty-five feet in 1987, saltwater intrusion occurred approximately once a decade—in 1988, 1999, 2012, and 2022—until now.[14] For the first time, the river is experiencing a second year in a row of saltwater intrusion and it is taking longer to recover from consecutive years of low water events.[15] To mitigate the duration and extent of the saltwater intrusion, the Army Corps has built a “sill” to reduce saltwater flow during low water events.[16] A sill is essentially an underwater levee or wall of dirt that “kicks up” the front of the saltwater wedge, pushing the denser salt water up and into the flow of freshwater and increasing the likelihood that the salt water will be pushed back down the river.[17] The sill cannot stop the salt water from moving up the river indefinitely, but it can buy some time until there is more rain or the water flow increases.[18] While the sill is an effective temporary solution, it is not an easy feat. The U.S. Coast Guard and navigation industry must temporarily block river traffic to allow for the sill’s construction, and its construction is estimated to cost $1.2 million per year if constructed once every five years.[19] Because of the severity of this year’s saltwater intrusion, the sill was raised from -55 feet to -30 feet with a notch of -55 feet to allow vessels needing the depth to continue navigating the river with one-way traffic rules.[20] The sill is a bandage over a larger problem. Salt water may still move past the sill and many water treatment systems in Louisiana, including New Orleans, are not equipped with desalination units.[21] Worse yet, the salt water is capable of corroding the pipes of the current water treatment systems and allowing far more dangerous contaminants than salt to infiltrate the water supply.[22] This problem looks dangerously similar to what occurred in Flint, Michigan.[23] Another concern is the particularly toxic byproducts produced by the disinfectant process used for treating seawater.[24] Seawater produces more byproducts because it requires more disinfectant than fresh water, in part because of different contaminants found in seawater.[25] One such contaminant is bromoform, a primary contaminant created in the disinfecting process of bromide, which is found in seawater.[26] In a recent test of drinking water in the lower Plaquemines parish, bromoform levels were more than one hundred times that of typical drinking water and well above EPA’s limits.[27]

How the Law Protects Drinking Water

President Ford signed the Safe Drinking Water Act (SDWA) in 1974 with the goal of regulating the public drinking water supply.[28] The statute charges EPA with identifying and setting standards for drinking water to protect public health.[29] The responsibility for satisfying the SDWA standards is divided among EPA, tribes, states, water systems, and the public.[30] EPA grants “primacy” or delegates its authority to states and territories that enforce the regulations it sets.[31] All states except Wyoming and the District of Columbia have primacy, largely because most states prefer to exercise this power rather than allow the federal government to govern the treatment of the state’s water.[32] EPA has set limits for primary and secondary contaminants. Primary contaminant standards are health based and legally enforceable.[33] These standards address contaminants, such as lead and mercury, with significant health consequences.[34] Secondary contaminant standards address the appearance or taste of the water and are not legally enforceable.[35] Secondary contaminants include zinc, “odor,” and chloride (the negative ion of salt when it is placed in water).[36] EPA’s maximum contaminant level for chloride is 250 milligrams per liter.[37] There are no legal consequences for failing to keep chloride levels in drinking water below this amount, but it is harmful to some populations such as pregnant women, infants, and individuals on a low-sodium diet, such as those with kidney disease or heart conditions.[38] 

Despite the lack of legal ramifications for secondary contaminants like chloride, there is still a political interest in maintaining EPA standards for drinking water because of the potential effect on constituents and the potential for backlash from those constituents at the polls. The Governor of Louisiana and President Biden declared a state of emergency authorizing the Governor to use emergency powers and allowing Louisiana to receive Federal assistance to address the drought and saltwater intrusion.[39] The response to the saltwater intrusion has been extensive. As of October 20, 2023, the saltwater wedge was at River Mile 65.8, and the salinity of the water fifteen to twenty-five miles downstream of the wedge toe is not compliant with EPA standards for chloride.[40] Louisiana has built pipelines to bring in fresh water, barged fresh water further upriver, installed desalination equipment, and constructed the sill.[41] Prior to declaring a state of emergency, Plaquemines Parish, which has a population of approximately 22,500 people,[42] relied on bottled water for bathing, cooking, and drinking since June.[43] According to the parish, its drinking water has been within EPA standards since October 1, 2023 due to freshwater barging and blending techniques.[44]

What is Next for Our Water?

The saltwater wedge has begun to regress downriver as a result of increased water flow following rainfall and the construction of the sill.[45] Current predictions no longer foresee a worst-case scenario occurring, but the truth remains that it could occur at some point in the future—and we are aware of the threat.[46] 

The current response to water crises like the saltwater intrusion is reactive rather than proactive. The SDWA requires that, in return for primacy, states must have “adopted and can implement an adequate plan for the provision of safe drinking water under emergency circumstances including earthquakes, floods, hurricanes, and other natural disasters.”[47] Part of this requirement should include forward-looking planning, not only to ensure the provision of safe drinking water during predictable emergencies, but also to prevent or mitigate the impact of such emergencies. Authorities knew that the dredging of the Mississippi River would increase the likelihood of saltwater intrusion and that such emergencies occur with predictable frequency and are only becoming more frequent. Louisiana communities have a right to safe drinking water and should have the legal protection to ensure it. That requires more than standards set out by the EPA. It requires legal obligations of the government to make decisions in line with the health of the community and the environment that provides for them.

Paul Sarahan is a partner at Earth & Water Law. He focuses his practice on environmental, safety, and transportation issues. He has 28 years of experience in policy, regulation, and commercial use of the environment and has represented clients in the energy, chemical, manufacturing, transportation, and retail industry sectors before federal, state, and local agencies. Paul is a graduate of the University of Texas at Austin, The University of Texas School of Law, and the University of Houston Law Center’s Energy, Environmental and Natural Resources LL.M. program.

Nikiya Mellon is a 3L from Fort Worth, Texas. She attended the University of North Texas and joined TELJ during her second year of law school.

[1]         Mississippi River Facts, Nat’l Park Serv., https://www.nps.gov/miss/riverfacts.htm (last updated Feb. 10, 2022).

[2]         Mississippi River Deepening from 45 to 50 Feet Authorized, State of Louisiana Office of the Governor (July 31, 2020) https://gov.louisiana.gov/index.cfm/newsroom/detail/2618.

[3]         Id.

[4]         See U.S. Army Corps of Eng’rs, Integrated General Reevaluation Report & Supplement III to the Final Environmental Impact Statement, Mississippi River Ship Channel, Baton Rouge to the Gulf, Louisiana Project iii (2018).

[5]         Mississippi River Facts, supra note 1; Moira McDonald, River at Risk: The Mississippi, Walton Fam. Found. (Feb. 9, 2017), https://www.waltonfamilyfoundation.org/stories/k-12-education/river-at-risk-the-mississippi.

[6]         An Overview of the Mississippi River’s Saltwater Wedge, U.S. Army Corps of Eng’rs, https://www.mvn.usace.army.mil/Missions/Engineering/Stage-and-Hydrologic-Data/SaltwaterWedge/SaltwaterWedgeOverview/ (last visited Nov. 17, 2023).

[7]         Id.

[8]         5 Things to Know About the Saltwater Intrusion of the Mississippi River, Tul. Univ.  Sch. of Pub. Health & Tropical Med., https://sph.tulane.edu/5-things-know-about-saltwater-intrusion-mississippi-river (last updated Sept. 28, 2023).

[9]         Lower Mississippi Saltwater Intrusion, City of New Orleans Office of Homeland Sec.  and Emergency Preparedness, https://ready.nola.gov/incident/saltwater-intrusion/about-saltwater-intrusion/ (last visited Nov. 17, 2023).

[10]         Integrated General Reevaluation Report & Supplement, supra note 5, at 2-23.

[11]         Id.

[12]         Delaney Nolan, Saltwater Threat to Louisiana Drinking Water to Grow Across US, Experts Warn, The Guardian (Oct. 10, 2023), https://www.theguardian.com/us-news/2023/oct/10/louisiana-drinking-water-saltwater-mississippi-river.

[13]         Id.

[14]         Roby Chavez, Why the Saltwater Wedge Climbing Up the Mississippi River is a Wake-Up Call to the Region, PBS, https://www.pbs.org/newshour/nation/why-salt-water-is-threatening-drinking-water-in-new-orleans-and-what-officials-are-doing-about-it; see also Integrated General Reevaluation Report & Supplement, supra note 5, at 2-24.

[15]         Chavez, supra note 15.

[16]         Integrated General Reevaluation Report & Supplement, supra note 5, at 3-6.

[17]         5 Things to Know About the Saltwater Intrusion of the Mississippi River, supra note 9.

[18]         Id.

[19]         Integrated General Reevaluation Report & Supplement, supra note 5, at 3–22.

[20]         5 Things to Know About the Saltwater Intrusion of the Mississippi River, supra note 9; Press Release, Ricky Boyett, Latest Saltwater Wedge Forecast Released by USACE, U.S. Army Corp of Eng’rs (Oct. 12, 2023), https://gohsep.la.gov/Portals/3/Docs/Intrusion/Latest%20saltwater%20wedge%20forecast%20released%20by%20USACE.pdf.

[21]         5 Things to Know About the Saltwater Intrusion of the Mississippi River, supra note 9.

[22]         Chavez, supra note 15.

[23]         Kristi Pullen Fedinick et al., Watered Down Justice 9 (2019), https://www.nrdc.org/sites/default/files/watered-down-justice-report.pdf.

[24]         Delaney Nolan, ‘These Levels Are Crazy’: Louisiana Tap Water Sees Huge Spike in Toxic Chemicals, The Guardian (Oct. 27, 2023), https://www.theguardian.com/us-news/2023/oct/27/louisiana-mississippi-river-tap-water-contamination-chemicals.

[25]         Id.

[26]         Id.

[27]         Id.

[28]         Env’t Prot. Agency, Understanding the Safe Drinking Water Act (2004), https://www.epa.gov/sites/default/files/2015-04/documents/epa816f04030.pdf.

[29]         Fedinick et al., supra note 24, at 10.

[30]         Understanding the Safe Drinking Water Act, supra note 29.

[31]         Fedinick et al., supra note 24, at 30.

[32]         Arthur Holst & Jennifer Stonecipher, Safe Drinking Water Act of 1974, Ctr. for the Study of Federalism, https://encyclopedia.federalism.org/index.php/Safe_Drinking_Water_Act_of_1974#:~:text=A%20state%20can%20apply%20for,stricter%2C%20standards%20than%20the%20EPA (last updated Aug. 2018).

[33]         National Primary Drinking Water Regulations, U.S. Env’t Prot. Agency, https://www.epa.gov/ground-water-and-drinking-water/national-primary-drinking-water-regulations (last updated Jan. 9, 2023).

[34]         Id.

[35]         Secondary Drinking Water Standards: Guidance for Nuisance Chemicals, U.S. Env’t Prot. Agency, https://www.epa.gov/sdwa/secondary-drinking-water-standards-guidance-nuisance-chemicals (last updated Feb. 14, 2023).

[36]         Id.; Water Sci. Sch., Water Molecules and Their Interaction with Salt, U.S. Geological Surv., https://www.usgs.gov/media/images/water-molecules-and-their-interaction-salt (last visited Nov. 17, 2023).

[37]         Secondary Drinking Water Standards, supra note 36.

[38]         Community Preparedness and Health Protection, La. Dep’t of Health, https://ldh.la.gov/page/4595#:~:text=Water%20that%20has%20exceeded%20250,to%20mix%20with%20baby%20formula (last visited Nov. 17, 2023).

[39]         President Joseph R. Biden, Jr. Approves Louisiana Emergency Declaration, The White House (Sept. 27, 2023), https://www.whitehouse.gov/briefing-room/presidential-actions/2023/09/27/president-joseph-r-biden-jr-approves-louisiana-emergency-declaration-4/#:~:text=Today%2C%20President%20Joseph%20R.%20Biden,20%2C%202023%2C%20and%20continuing.; https://gov.louisiana.gov/assets/141JBE2023.pdf.

[40]         Where is the Saltwater Wedge Now?, U.S. Army Corps of Eng’rs (Oct. 22, 2023), https://www.mvn.usace.army.mil/Missions/Engineering/Stage-and-Hydrologic-Data/SaltwaterWedge/SaltwaterWedgeNow/.

[41]         Chavez, supra note 15.

[42]         QuickFacts: Plaquemines Parish, Louisiana, U.S. Census Bureau, https://www.census.gov/quickfacts/fact/table/plaqueminesparishlouisiana/PST045222 (last updated July 1, 2022).

[43]         Chavez, supra note 15.

[44]         Saltwater Intrusion Updates, Plaquemines Parish, https://www.plaqueminesparish.com/CivicAlerts.aspx?AID=477 (last updated Nov. 2, 2023).

[45]         Press Release, supra note 21.

[46]         Chavez, supra note 15.

[47]         42 U.S.C. § 300g-2 (2018).

Vol. No. 54-1 Waste

Waste

Nuclear Fusion Waste Regulation

What is Nuclear Fusion?

Nuclear fusion is a process that generates power by combining two light atomic nuclei to form a heavier atomic nucleus.[1] Nuclear fusion naturally occurs in stars, where the high temperature and strong gravity allow atoms to fuse, releasing energy.[2] There are three main methods of fusion power generation: magnetic confinement, inertial confinement, and magnetized target fusion.[3]

 Magnetic confinement models achieve fusion by heating up plasma confined within a magnetic field.[4] In a state of plasma, electrons are stripped off of atoms, creating free electrons and ions.[5] Those ions are then stimulated to smash into each other and cause fusion reactions.[6] Because plasma is highly unstable, magnetic confinement fusion reactors use magnetic forces to contain the ions within the plasma.[7] The magnetic forces safely contain the unstable ions, cycling them in a container—one example of these containers is a tokamak, which has a donut-shape.[8] 

Inertial confinement fusion reactors use laser or ion beams to heat and compress the fuel, while magnetized target fusion reactors use both lasers and a magnetic field to achieve fusion.[9]

If nuclear fusion becomes feasible at large scales, it will be a “clean, safe, and affordable energy” option.[10] Fusion is more efficient than nuclear fission or burning oil and coal—it creates four times more power per kilogram of fuel than nuclear fission and four million times more power per kilogram of fuel than burning oil or coal.[11] Furthermore, unlike burning fossil fuels, fusion does not emit carbon dioxide.[12]

What Waste Does Nuclear Fusion Produce?

Fusion does not produce highly radioactive waste like fission does. Instead, it produces varying amounts of low-level waste depending on the structure surrounding the reactor.[13] Radioactive waste is commonly classified into low level waste (LLW), intermediate level waste, and high level waste.[14] There are also lower levels of radioactive waste, such as very low-level waste.[15] Although fusion produces radioactive waste, this waste is mostly structural LLW from the steel and concrete used in the system.[16] Tritium is involved in fusion power production, but it is produced and consumed in a closed loop within a fusion reactor, so it is not a waste product of fusion.[17] Additionally, tritium has a short half-life, which poses low risk.[18] The most dominant fusion waste is structural waste, including different types of steel that encase a system.[19] The radioactive waste classification of the steel depends on the alloying elements used in the steel, with different compositions having different decay times.[20] Because fusion produces varying levels of LLW, an effective recycling method for the fusion LLW and effective structural components around the reactor are important considerations in regulation.

What is the Current State of Fusion Waste Regulation in the U.S.?

Fusion regulation has developed significantly since the start of 2023. On January 3, 2023, the Nuclear Regulatory Commission (NRC) submitted SECY-23-0001, “Options for Licensing and Regulating Fusion Energy Systems.”[21] This paper provided the NRC with three options for fusion regulation:

  1. Regulate fusion energy systems under a utilization facility framework,
  2. Regulate fusion energy systems under a byproduct material framework, or
  3. Regulate fusion energy systems under a hybrid framework using either a byproduct material or utilization facility approach based on potential hazards.[22]

Under option one, fusion energy systems would be regulated under the same scheme as nuclear fission reactors.[23] Under option two, the focus would be on regulating the radioactive materials used or produced by the fusion energy system.[24] For example, the concrete and steel structures become radioactive through the fusion process, so they would be regulated. The third option would provide a case-by-case hybrid framework, combining the first and second options.

On April 13, 2023, the NRC issued SRM-SECY-23-0001, “Staff Requirements – SECY-23-0001 – Options for Licensing and Regulating Fusion Energy Systems,” opting to follow option two, the byproduct material framework as laid out in 10 C.F.R. Part 30.[25] This decision is a positive outcome for the nascent nuclear fusion industry. Option one would have regulated fusion energy systems like fission reactors, and it was an overly conservative measure.[26] Fission reactors have significantly different risks, structures, and safety components compared to fusion systems. Current fusion energy systems are safe, as the system will automatically shut itself off if the reaction cannot be controlled.[27] The risks in fusion energy systems are focused on the waste materials, while the risks of fission reactors include the waste materials and a potential meltdown.[28] Option two, the material byproduct option, balances efficiency and risk better than the other two options. The NRC’s decision also notes that, in the event of the risks of fusion changing in the future, the staff should notify the NRC and make appropriate recommendations for new guidelines.[29] Barring any unforeseen future developments, fusion energy systems will be regulated under the 10 C.F.R. Part 30 byproduct material standard.

Unlike fission reactors that are solely regulated by the NRC, the NRC’s byproduct material standard can be enforced at the state level in all Agreement States, with an opt-out clause option for Agreement State responsibilities.[30] The Agreement State Program is in place to allow states to locally enforce the byproduct material standards.[31] Any non-federal entity that wishes to possess or use byproduct material in an Agreement State must go through the proper channels within that state. Following SRM-SECY-23-0001, the byproduct material standard will be required for nuclear fusion energy systems, and the utilization framework will not.[32] If any non-federal entities in an Agreement State wish to use or possess the byproduct material coming from a fusion energy system, then that entity will likely need to apply to the Agreement State directly.[33] To clear up any ambiguity in the status of byproduct materials in fusion energy systems, the NRC recommends that the staff develop a new volume of NUREG-1556, “Consolidated Guidance About Materials Licenses,” that would cover fusion energy systems.[34] This would provide states with consistent guidance for dealing with nuclear fusion byproduct materials.[35]

Conclusion

As of the most recent updates from the NRC, nuclear fusion energy systems will be regulated under the byproduct materials standard in 10 C.F.R. Part 30. Fusion energy systems will not have the same level of strict regulations that nuclear fission reactors have due to the significantly lower risk involved in a nuclear fusion energy system. This regulation is a step in the right direction for the growth of the nuclear fusion industry. However, the byproduct materials standard could still pose financial barriers based on disposal cost and feasibility. It is also worth noting that the byproduct standard has gone through significant changes as technology has evolved; for example, the code was amended in 2008, adding radioactive particle-accelerator material to the byproduct materials definition.[36] Technology has changed drastically since the inception of the byproduct materials standard in 1965, and the regulation of byproduct materials must adapt to reflect those changes in technology. The exact level of fusion regulation depends on forthcoming guidance from the NRC regarding the specifics of the fusion byproduct material standard, but the general framework is in place. Additionally, any changes in nuclear fusion technology that could pose new risks will be met with new recommendations from the NRC.

Amanda Halter is managing partner of the Houston office of the international law firm of Pillsbury Winthrop Shaw Pittman, a member of the firm’s Environmental & Natural Resources practice section and co-leader of the firm’s Crisis Management team. Amanda helps companies resolve environmental liabilities and negotiate compliance conditions, as well as manage financial and reputational losses associated with a crisis. Her experience includes a diverse array of environmental regulatory, litigation and crisis matters, including contamination investigations and remedial actions, natural resource damages assessments and claims, environment, health and safety compliance counseling, mass toxic tort actions, permitting and planning for large-scale industrial projects, and project impacts mitigation and restoration strategies. Amanda is a native of Houston, a graduate of Rice University and The University of Texas School of Law.

Eric Trimble is a 2L from Laytonsville, Maryland. He attended Arizona State University for his B.S. in Mathematics and Economics. He joined TELJ during his first year of law school and has long been interested in the field of environmental law ever since he took environmental economics in his undergraduate.

[1]         Matteo Barbarino, What is Nuclear Fusion?, Int’l Atomic Energy Agency (IAEA) (Aug. 3, 2023), https://www.iaea.org/newscenter/news/what-is-nuclear-fusion.

[2]         Id.

[3]         Nuclear Fusion Power, World Nuclear Ass’n , https://world-nuclear.org/information-library/current-and-future-generation/nuclear-fusion-power.aspx (last updated Dec. 2022).

[4]         Id.

[5]         Wolfgang Picot, Magnetic Fusion Confinement with Tokamaks and Stellarators, IAEA (May 2021), https://www.iaea.org/bulletin/magnetic-fusion-confinement-with-tokamaks-and-stellarators.

[6]         Id.

[7]         Id.

[8]         Id.

[9]         Nuclear Fusion Power, supra note 3.

[10]         Barbarino, supra note 1.

[11]         Id.

[12]         Id.

[13]         Does Fusion Produce Radioactive Nuclear Waste the Same Way Fission Does?, IAEA, https://www.iaea.org/topics/energy/fusion/faqs#:~:text=Does%20Fusion%20produce%20radioactive%20nuclear,long%2Dlived%20radioactive%20nuclear%20waste.

[14]         IAEA, Classification of Radioactive Waste 5 (2009).

[15]         Id.

[16]         Sehila M. Gonzalez de Vicente et al., Overview on the management of radioactive waste from fusion facilities: ITER, demonstration machines and power plants, 62 Nuclear Fusion 2022, at 2.

[17]         Does Fusion Produce Radioactive Nuclear Waste the Same Way Fission Does?, supra note 13.

[18]         Id.

[19]         Gonzalez de Vicente et al., supra note 16.

[20]         See id.

[21]         Fusion Systems, U.S. Nuclear Regul. Comm’n (Aug. 21, 2023), https://www.nrc.gov/materials/fusion-energy-systems.html.

[22]         Daniel H. Dorman, SECY-23-0001: Options for Licensing and Regulating Fusion Energy Systems 2 (2023).

[23]         Jeffrey Merrifield et al., The Nuclear Regulatory Commission Unanimously Votes to Separate Fusion Energy Regulation from Nuclear Fission, Pillsbury (April 19, 2023), https://www.pillsburylaw.com/en/news-and-insights/nrc-fusion-energy-nuclear-fission-regulation.html.

[24]         Id.

[25]         Fusion Systems, supra note 21.

[26]         Gonzalez de Vicente et al., supra note 16, at 1.

[27]         Carley Willis & Joanne Liou, Safety in Fusion, IAEA, https://www.iaea.org/bulletin/safety-in-fusion (last visited Nov. 17, 2023).

[28]         Id.

[29]         Fusion Systems, supra note 21.

[30]         Agreement States, U.S. Nuclear Regul. Comm’n, https://www.nrc.gov/agreement-states.html (last updated May 18, 2023).

[31]         Agreement State Program, U.S. Nuclear Regul. Comm’n, https://www.nrc.gov/about-nrc/state-tribal/agreement-states.html (last updated Oct. 9, 2023).

[32]         Fusion Systems, supra note 21.

[33]         Agreement States, supra note 30.

[34]         Fusion Systems, supra note 21.

[35]         Id.

[36]         10 C.F.R. § 30.4(2)(ii)(a) (2023).

Vol. No. 54-1 Water Quality

Water Quality

PFAS Risks and Litigation

PFAS is the term for a group of thousands of chemicals composed of perfluoroalkyls and polyfluoroalkyls.[1] Because of their long-lasting nature, the term “forever chemicals” is often used interchangeably with the term PFAS.[2] After their identification in the 1940s, PFAS quickly became commonplace in consumer products and manufacturing due to their unique hydrophobic and oleophobic properties (water- and oil-repellent properties).[3] PFAS are regularly used in cookware, food packaging, adhesives, firefighting foams, cosmetics, and textiles.[4] Additionally, PFAS play an integral role in many manufacturing processes, such as those used to produce lubricants, semiconductors, pesticides, and surfactants.[5] The textile industry is the largest single user of PFAS.[6] 

The same oleophobic and hydrophobic properties that make PFAS so useful also facilitate their spread through the environment and increase the difficulties surrounding the removal and cleanup of these chemicals.[7] Currently, PFAS are widely present in drinking water, soil, air particulates, and wild animals.[8] PFAS are not yet fully understood, but they are unequivocally an omnipresent and inescapable facet of the modern world.

Risks of PFAS Exposure for Human Health

The human health risks of PFAS are not fully known and require more study, but many alarming effects have already been linked to PFAS exposure.[9] Studies have repeatedly proven that PFAS can, and do, enter the human blood stream.[10] High concentrations of PFAS have been found in the blood of humans living near a locus of PFAS contamination and the long-term health effects are still undetermined.[11] Additionally, peer-reviewed studies have shown that human exposure to PFAS can cause adverse health effects, including decreased fertility, developmental interference in adolescents, increased cancer risk, immune system suppression, hormonal interference, and obesity.[12] More specifically, exposure to PFAS has been linked to the development of renal cancer[13] and the disruption of testosterone and other growth hormones after adolescent exposure.[14] However, studies of PFAS’ health effects so far have largely been limited to a select few compounds, and the effects of thousands of other PFAS compounds are almost completely unknown.[15] Due to the variety of the compounds under the label “PFAS” and the constant creation of new PFAS, much remains unknown about the class of chemicals. But with what has already been discovered, unstudied similar compounds probably also have adverse impacts on human health.

Impacts of PFAS on the Environment

The full effect of PFAS on the environment also requires more study, but some impacts have already occurred. Alarmingly, PFAS have been found in nearly every level of the ecological system, including water, soil, air, and wild animals.[16] PFAS contamination is also common in drinking water across the United States, with an estimated 45% of drinking water containing at least one PFAS compound when it comes out of the tap.[17] Additionally, PFAS pose a unique risk in aquatic ecosystems because their concentrations rapidly bioaccumulate inside and among organisms.[18] As a result of this bioaccumulation, detectable levels of PFAS are found in nearly every fish in America.[19] Despite this, only a handful of states have issued specific PFAS-related guidance regarding the consumption of fish, and the effect of consuming contaminated fish remains unclear.[20] Once again, the need for further research and increased awareness is apparent.

PFAS Litigation and Settlement

Within the last year, the manufacturing and chemical companies 3M, Chemours, DuPont, and Corteva all announced massive settlements stemming from their involvement with manufacturing PFAS.[21] Chemours, DuPont, and Corteva recently announced they would jointly pay $1.19 billion to settle certain claims against them.[22] However, the companies still face potential liability for thousands of other PFAS-related claims.[23] 3M alone is facing over 4,000 lawsuits for its actions leading to PFAS contamination.[24] Some financial firms predict that 3M’s total legal costs may exceed $140 billion by the time all claims are finally settled.[25] With 3M’s total market capitalization somewhere in the ballpark of $50 billion, bankruptcy is a real concern if the total costs of the litigation are anywhere near this estimate.[26] To avoid further liabilities, 3M has announced plans to end their use of all PFAS by 2025.[27] 

Past asbestos litigation and class action lawsuits may provide insight into what the future holds for PFAS manufacturers. Following the discovery that asbestos was carcinogenic, the manufacturers were inundated with lawsuits, and many declared bankruptcy.[28] One tactic used by the manufacturers was to spin off their asbestos production divisions and consequently have those new companies declare bankruptcy, thereby insulating the main company from liability.[29] This process is commonly referred to as the “Texas Two-Step” and often leaves the plaintiffs without a path to receiving monetary damages, because the new, smaller companies do not have enough assets to be divvied up during the bankruptcy process.[30] It is highly likely that PFAS manufacturers will attempt to use this same strategy to save some of their operations. Furthermore, 3M has already employed this legal tactic to try to avoid liability for another multibillion settlement over their sale of faulty earplugs.[31] 3M spun off its earplug manufacturing division, which subsequently declared bankruptcy.[32] Based on this precedent, 3M could attempt the same legal maneuver to avoid liability from the PFAS litigation. While arguably unethical, the Texas Two-Step is legal.[33] With companies facing massive liability from PFAS litigation, it seems unavoidable that companies will employ similar tactics across the board.

However, the 3M settlement for drinking water will likely not cover the entirety of remediation costs for the affected municipalities.[34] For example, Orange County, California, alone will likely require over $1 billion to fund the needed remedial infrastructure, with much of the cost likely to fall on taxpayers.[35] Even smaller cities may still require hundreds of millions of dollars to properly rid their drinking water of PFAS.[36] For instance, Stuart, Florida, a city with a population of approximately 18,000 residents, estimates it will require upwards of $100 million to remove the PFAS contamination from the water in its jurisdiction.[37] A spokesperson from the City of Stuart stated that the settlement would not make the City “whole,” as it does not provide enough money to cover estimated remediation costs.[38] Unfortunately, PFAS remediation and the implementation of new water treatment plants are incredibly expensive processes and will have to be paid for at least in part by the taxpayers harmed by the pollution.

3M, Chemours, Corteva, and DuPont are by no means the only companies responsible for the PFAS pollution. Twelve companies are responsible for the majority of PFAS production worldwide, but countless smaller companies may also be responsible.[39] These recent settlement agreements are simply the first legal moves in what is almost guaranteed to be a long and protracted fight involving millions of people and many entities. For example, these settlements do not release the companies from liability for any personal injury claims.[40] Further, the attorneys general of several states are still actively filing lawsuits, and the full extent of the legal battle is yet to be determined.[41]

Current Standards and What is to Come

Currently, there are no enforceable federal standards for PFAS.[42] However, the Environmental Protection Agency (EPA) recently adopted a final National Primary Drinking Water Regulation (NPDWR) that would set a legally binding maximum concentration of PFAS that can be in drinking water, effective by the end of 2026.[43][a] Additionally, EPA regulatory guidance would require PFAS testing and mandate that the concentration levels be made available to the public.[44] The regulation comes as PFAS are gaining public attention, largely because of the enormous lawsuits brought against their manufacturers.[45] 

More research is needed to fully understand the risks of PFAS, but recent testing shows that nearly every American has detectable levels of PFAS within their body.[46] Especially as scientists learn more about the health ramifications of PFAS exposure, the legal problems of these PFAS manufacturers will only intensify and may ultimately be the death knell for many companies.

Alisha Adams is an attorney in the Environmental and Legislative section of Jackson Walker’s Austin office. She focuses on permitting and water matters, including real estate developers and special utility districts and counsels clients on transactional and regulatory issues before the Public Utility Commission of Texas.

Kevin Sorstokke is a 2L from Boulder, Colorado. He attended the University of Michigan and joined TELJ during his first year of law school.  Kevin has always been an avid outdoorsman and has a strong interest in protecting the environment.

[1]         Per- and Polyfluorinated Substances (PFAS) Fact Sheet, Ctrs. for Disease Control and Prevention, https://www.cdc.gov/biomonitoring/PFAS_FactSheet.html (last updated May 2, 2022).

[2]          Robeco, The Big Book of Sustainable Investing 10 (2nd ed. 2023).

[3]          Sudarshan Kurwadkar et al., Per- and Polyfluoroalkyl Substances in Water and Wastewater: A Critical Review of Their Global Occurrence and Distribution, 809 Sci. of the Total Env’t 151003, 2 (2022).

[4]         Id.

[5]         Id.

[6]         Id.

[7]         See Env’t. Prot. Agency, EPA/600/R-20/345F, Human Health Toxicity Values for Perfluorobutane Sulfonic Acid (CASRN 29420-49-3) and Related Compounds Potassium Perfluorobutane Sulfonate (CASRN 29420-49-3) (Apr. 2021).

[8]         Our Current Understanding of the Human Health and Environmental Risks of PFAS, Env’t Prot. Agency, https://www.epa.gov/pfas/our-current-understanding-human-health-and-environmental-risks-pfas (last updated June 7, 2023).

[9]         Id.

[10]         Kurwadkar et al., supra note 3, at 2.

[11]         Id.

[12]         Our Current Understanding of the Human Health and Environmental Risks of PFAS, supra note 8.

[13]         Joseph Shearer et al., Serum Concentrations of Per- and Polyfluoroalkyl Substances and Risk of Renal Cell Carcinoma, 113 J. of the Nat’l Cancer Inst. 580, 580 (2021).

[14]         Maria-Jose Lopez-Espinosa et al., Perfluoroalkyl Substances, Sex Hormones, and Insulin-Like Growth Factor-1 at 6–9 Years of Age: A Cross-sectional Analysis within the C8 Health Project, 124 Env’t Health Persps. 1269, 1269–70 (2016).

[15]         See Kurwadkar et al., supra note 3, at 2.

[16]         Our Current Understanding of the Human Health and Environmental Risks of PFAS, supra note 8.

[17]         Kelly Smalling et al., Per- and Polyfluoroalkyl Substances (PFAS) in United States Tapwater: Comparison of Underserved Private-Well and Public-Supply Exposures and Associated Health Implications, 178 Env’t Int’l 1, 1–2 (2023).

[18]         See id.

[19]         Nadia Barbo et al., Locally Caught Freshwater Fish Across the United States are Likely a Significant Source of Exposure to PFOS and Other Perfluorinated Compounds, 220 Env’t Rsch., 1–4 (2023) (“Of the 349 samples analyzed in the 2013-2014 National Rivers and Streams Assessment, just one sample contained no detectable PFAS. All 152 fish samples tested within the 2015 Great Lakes Human Health Fish Fillet Tissue Study had detectable PFAS.”).

[20]         Id. at 9.

[21]         See Ben Casselman et al., Three ‘Forever Chemicals’ Makers Settle Public Water Lawsuits, N.Y. Times (June 22, 2023), https://www.nytimes.com/2023/06/02/business/pfas-pollution-settlement.html; see also Lisa Friedman & Vivian Giang, 3M Reaches $10.3 Billion Settlement in ‘Forever Chemicals’ Suits, N.Y. Times (June 22, 2023), https://www.nytimes.com/2023/06/22/business/3m-settlement-forever-chemicals-lawsuit.html?searchResultPosition=1.

[22]         Casselman et al., supra note 21.

[23]         Id.

[24]         Friedman & Giang, supra note 21.

[25]         Casselman et al., supra note 21.

[26]         Jef Feeley & Ryan Beene, 3M Heads to Trial in ‘Existential’ $143 Billion PFAS Litigation, Bloomberg L. (June 2, 2023), https://news.bloomberglaw.com/environment-and-energy/3m-heads-to-trial-in-existential-143-billion-pfas-litigation.

[27]         Casselman et al., supra note 21.

[28]         Alex Wolf & James Nani, Asbestos Bankruptcies Facing Fresh Challenges After J&J Ruling, Bloomberg L. (Mar. 8, 2023, 4:04 AM), https://news.bloomberglaw.com/bankruptcy-law/asbestos-bankruptcies-facing-fresh-challenges-after-j-j-ruling.

[29]         Id.

[30]         Id.

[31]         Brendan Pierson, 3M Agrees to Pay $6 Bln to Settle Lawsuits Over US Military Earplugs, REUTERS (Aug. 29, 2023, 12:14 AM), https://www.reuters.com/legal/3m-board-vote-multibillion-dollar-settlement-military-earplug-litigation-2023-08-28/#:~:text=Of%2016%20earplug%20cases%20that,stemming%20from%20the%20earplug%20lawsuits.

[32]         Id.

[33]         Akiko Matsuda, Texas Two-Step Bankruptcies Carry On Despite Setbacks, Wall St. J. (Sept. 20, 2023, 8:05 PM), https://www.wsj.com/articles/texas-two-step-bankruptcies-carry-on-despite-setbacks-80733a51.

[34]         Friedman & Giang, supra note 21.

[35]         Id.

[36]         Id.

[37] Id.; QuickFacts: Stuart City, Florida, U.S. Census Bureau (July 1, 2022), https://www.census.gov/quickfacts/stuartcityflorida.

[38]         Friedman & Giang, supra note 21.

[39]         The Top 12 PFAS Producers in the World and the Staggering Societal Costs of PFAS Pollution, Chemsec (May 25, 2023), https://chemsec.org/reports/the-top-12-pfas-producers-in-the-world-and-the-staggering-societal-costs-of-pfas-pollution/.

[40]         Casselman et al., supra note 21.

[41]         Id.

[42]         Id.

[43]         Per- and Polyfluoroalkyl Substances (PFAS) Proposed PFAS National Primary Drinking Water Regulation, Env’t Prot. Agency, https://www.epa.gov/sdwa/and-polyfluoroalkyl-substances-pfas (last updated Sept. 22, 2023).

[44]         Id.

[45]         See Casselman et al., supra note 21; see also Friedman & Giang, supra note 21.

[46]         See Kurwadkar et al., supra note 3, at 2.

[a]Update with the Fed Reg publication that came out today

Vol. No. 54-1 Water Rights

Water Rights

Texas Court of Appeals Puts Strict Limits on Groundwater Permit Challenges

Introduction

Water is a scarce resource in Texas. In fact, the Texas Water Development Board expects Texas’ water supply to fall by 11% between 2020 and 2070, while the state’s water needs are expected to rise by 87% in the same time.[1] This will create a water supply deficit of about 8.9 million acre-feet per year.[2] Every Texas resident has an interest in the distribution and availability of water resources. Often, those interests clash.

Water Regulation in Texas

Groundwater laws in Texas continue to evolve, and in many cases look quite similar to those that govern mineral rights such as oil and gas. The Rule of Capture, for example, grants ownership of groundwater to whoever acts to produce the resource.[3] In addition, the process by which a party obtains a permit to produce and export groundwater is a public process that requires public disclosure and allows interested parties to challenge the proposed permit.[4] Regional government organizations get their authority from the state to approve groundwater allocation and rights at a local level.[5] 

Groundwater Conservation Districts (GCDs) are a type of water-regulating government body. GCDs are districts with the authority to regulate various aspects of groundwater, including the spacing of and production from water wells.[6] The GCD in question in the cases below is a Middle Pecos Groundwater Conservation District, and it has rules regarding permitting for drilling, equipping, operating, or completing wells.[7] As part of its authority, the GCD issues two types of permits relevant to this case: (1) historic and existing use permits (H&E permits); and (2) production permits.

A party dissatisfied with the outcome of a water rights allocation decision can challenge the decision in court. However, as has been made clear in the Cockrell Investment Partners v. Middle Pecos Groundwater Conservation District cases, courts are reluctant to step in and make decisions in the place of government agencies. The Cockrell cases show the limits the courts have established concerning the kinds of water rights challenges they are willing to address, and the burden placed on any party who wants to proceed with a challenge.

Cockrell Investment Partners v. Middle Pecos Groundwater Conservation District

Background

In July 2017, Cockrell Investment Partners, L.P. (Cockrell) requested to obtain party status for two permits granted by the Middle Pecos Groundwater Conversation District (the District) to Fort Stockton Holdings, L.P. (FSH).[8] Cockrell owns a pecan orchard and has a permit from the District to use an annual production of approximately 15,000-acre feet of groundwater on its land for agricultural purposes.[9] Cockrell’s property is adjacent to the FSH property.[10]

In 2005, FSH obtained an H&E permit from the District for around 47,000-acre feet of annual water production for agricultural use.[11] In 2009, FSH sought to obtain a permit to produce and export approximately 47,000-acre feet for municipal and industrial use.[12] The District found this to be too much, and after much debate the District, FSH, and other relevant parties associated with FSH, reached a settlement. In April 2017, FSH modified its 2009 production permit application to ask for the production and exportation of approximately 28,000-acre feet of water.[13] FSH’s H&E permit was reduced by the amount granted in the production permit, to offset the demand for water. As such, the District approved two permits for FSH. The first permit reduced the amount in FSH’s historical and existing use permit, and the second permit granted FSH the ability to export and use around 28,000-acre feet of water per year.[14] 

Cockrell, which had not previously been involved in the proceedings, challenged the settlement during the hearing process and requested to be a party to the permit determination. The District rejected Cockrell’s challenge and request, reasoning that Cockrell had been given adequate notice of the proceedings and had requested party status too late.[15] Subsequently, the District granted both of FSH’s amended permits. Cockrell filed a Request for Reconsideration, to which the District had ninety-one days to respond.[16] Before the ninety-one days elapsed, Cockrell also sued in District Court challenging the District’s decision denying it party status—Cockrell also sought a remand of the permit applications for further proceedings.[17] 

Defendants filed pleas to the jurisdiction, alleging that “Cockrell lacked standing to participate in the permit hearings, to request a contested hearing, or to bring an appeal . . . [and that] Cockrell failed to show a waiver of governmental immunity as it failed to exhaust administrative remedies.”[18] The District Court granted the Defendants’ plea to the jurisdiction and dismissed the case. Cockrell appealed.

Cockrell I

The Court of Appeals affirmed the District Court’s decision.[19] The Court found that it lacked jurisdiction to hear the case because Cockrell had “fail[ed] to meet the prerequisite of having its motion for rehearing overruled at the district level whether by the district itself or by operation of law” since it had not exhausted all administrative remedies before filing suit.[20] The Court held that Cockrell was required to wait for the District’s ruling on the motion for rehearing, or wait for the statutory period of  ninety-one days to expire, before it could file suit.[21] Anything less did not amount to a full exhaustion of all administrative remedies.

Cockrell II

The Texas Court of Appeals withheld and superseded the holding in Cockrell II and  III. [22]

Cockrell III

FSH’s production and export permit for the approximately 28,000-acre feet of groundwater was set to expire in July 2020.[23] FSH sent a letter to the District as its application for the renewal of its permit, as the Texas Water Code allowed.[24] Almost as soon as FSH did this, Cockrell sent the District a written request for party status in any hearing related to FSH’s application for permit renewal.[25] The District denied Cockrell party status; subsequently Cockrell sued the District and FSH. The District Court granted FSH’s motion to dismiss Cockrell’s claims.[26] Cockrell appealed.

As in Cockrell I, the Court of Appeals affirmed the District Court. The Court held that Cockrell lacked standing to pursue a complaint on the District’s denial of party status, as it had in Cockrell I, because it had not exhausted all administrative remedies. Cockrell could challenge the District’s decision to grant a permit renewal in court, since it was required to show a waiver of governmental immunity prior to bringing a suit challenging a District decision, as the District was otherwise protected by governmental immunity.[27] The Court also dismissed Cockrell’s claim based on the Texas Uniform Declaratory Judgments Act (UDJA), finding that the UDJA does not waive the District’s government immunity on its own.[28]

Impact

The Court of Appeals’ rulings in the Cockrell cases show that Texas courts are reluctant to place themselves in a position to make or challenge a governmental body’s water rights decisions. The Court of Appeals emphasized the administrative processes already in place at the local level, and seemed to urge Cockrell, as well as any future plaintiffs, to focus their efforts on challenging water rights early in the process rather than in court. The Court seemed to take a strong position that it does not want to play the role of a water allocations expert for frustrated plaintiffs. Nevertheless, the burden placed on plaintiffs is high, and may put a greater burden on less politically able groups.

In addition, the Cockrell cases reveal the clashing interests of owners of adjacent lots, especially as the reality of water scarcity in Texas becomes a greater concern. The Cockrell cases show the tension and general debate surrounding an owner’s abilities to pump water and export or transport it out of a particular area for its use somewhere else. As more people move to Texas, and municipal need for water grows, this will place more pressure on property owners who have hitherto enjoyed a less restrained use of water, such as agricultural producers like the plaintiffs in Cockrell. Owners will have to think about the future of their water supply and prepare themselves to defend those interests before their local water authority early and robustly.

Kimberly Kelley is an attorney at Bickerstaff Heath Delgado Acosta LLP and practices in the areas of municipal, open government, water, and environmental law. She earned her undergraduate degree from Texas A&M University and graduated Texas Tech University School of Law, where she served on the editorial board of the Law Review.

Tiph Kugener is a 3L. She attended the University of Chicago and joined TELJ in her second year of law school. Tiph is passionate about the intersection of environmental law, energy development, and social justice. She is currently taking a semester to clerk at the U.S. Department of Justice and will be working in energy law in Houston after graduation.

[1]         Spencer Grubbs et al., Texas Water: Planning for More, Comptroller.Texas.Gov (Apr. 2019), https://comptroller.texas.gov/economy/fiscal-notes/2019/apr/tx-water-planning.php.

[2]         Id.

[3]         Sipriano v. Great Spring Waters of America, Inc., 1 S.W.3d 75, 75 (Tex. 1999).

[4]         Tex. Water Code Ann. § 36.014.

[5]         See generally id § 36.

[6]         Id. § 36.001(1).

[7]         Id. §§ 36.113(a), .114, .401–.418.

[8]         Cockrell Inv. Partners, L.P. v. Middle Pecos Groundwater Conservation Dist., No. 08-21-00017-CV, 2023 WL 2050024, at *3 (Tex. App.—El Paso Feb. 16, 2023, no pet. h.) [hereinafter Cockrell I].

[9]         Id. at *1.

[10]         Id.

[11]         Id.

[12]         Id.

[13]         Id. at *2.

[14]         Cockrell Inv. Partners, L.P. v. Middle Pecos Groundwater Conservation Dist., No. 08-21-00200-CV, 2023 WL 4424627, at *1 (Tex. App.—El Paso July 10, 2023, no pet. h.)

[15]         Id. at *3.

[16]         Id. at *7 (“A request for rehearing is deemed denied on the 91st day after the date the request is submitted. See TEX. WATER CODE ANN. § 36.412(e).”).

[17]         Cockrell I, 2023 WL 2050024, at *3.

[18]         Id. at *4.

[19]         See id.

[20]         Id. at *9.

[21]         Id.

[22]         Cockrell Inv. Partners, L.P., v. Middle Pecos Groundwater Conservation Dist., No. 08-21-00017-CV, 2023 WL 2050024 (Tex. App.—El Paso Mar. 8, 2023, withdrawn) [hereinafter Cockrell II].

[23]         Cockrell Inv. Partners, L.P., v. Middle Pecos Groundwater Conservation Dist., No. 08-21-00017-CV, 2023 WL 2050024 (Tex. App.—El Paso July 10, 2023, no. pet. h) [hereinafter Cockrell III].

[24]         Id. at *2.

[25]         Id.

[26]         Id. at *4.

[27]         Id.

[28]         Id. at *8.

Vol. No. 54-1 Natural Resources

Natural Resources

Held v. Montana, West Virginia v. EPA, and the Future of Climate Litigation

Introduction

In August 2023, a Montana state judge issued a landmark climate ruling in the case Held v. Montana. In a case brought by youth plaintiffs challenging the constitutionality of a provision of the Montana Environmental Policy Act (MEPA), District Court Judge Kathy Seeley held in a declaration of law that the state’s failure to take climate change and greenhouse gas emissions into account when approving state projects was unconstitutional.[1] The case represents years of effort by youth activists and environmental groups across the country, who have brought cases alleging state constitution violations to achieve environmental wins. While other youth activist cases challenging states and their dependence on fossil fuels were plagued by procedural setbacks[2] and skeptical judges,[3] the Montana case is not only the first to go to trial, but also the first to go to trial and win.  

Held is a landmark case because it gives insight into the future of climate litigation. Held occurred against a backdrop of a rapidly warming climate[4] and a federal judiciary that has placed greater barriers on the ability of federal agencies to address major issues such as climate change.[5] But, as Held signals, federal action is not the only way forward. Instead, plaintiffs, like the youth plaintiffs in Held, are increasingly willing to bring challenges under state law.[6] Reorienting climate litigation around state, rather than federal, law is a new front in the fight against climate change. And, as Held demonstrates, that new front could create important climate wins.

Montana v. Held

Held was filed in 2020 by sixteen young Montanans, then ranging in age from two to eighteen years old.[7] Their complaint challenged the constitutionality of a provision of MEPA. The challenged provision “forbids the State and its agents from considering the impacts of greenhouse gas (GHG) emissions or climate change in their environmental reviews” of state actions.[8] The plaintiffs challenged the provision based on a section of the Montana state constitution that provides residents with “the right to a clean and healthful environment,” and further places responsibility on the state to ensure a healthful environment “for present and future generations.”[9] 

The youth plaintiffs successfully argued that the existence of climate change was already causing harm to the natural resources of the state,[10] which was a direct result of emissions in the state, largely coming from the state’s fossil fuel industry.[11] Those emissions only increased as the state permitted and approved additional fossil fuel projects without first undertaking a full environmental review.[12] As Judge Seeley concluded, that caused direct harms to the plaintiffs.[13] Therefore, the challenged provision was “facially unconstitutional” because it directly contravened a provision of the state constitution by precluding the state from considering the effects of something known to diminish the healthful environment of the state.[14] The court then applied strict scrutiny because the MEPA provision implicated “Plaintiffs’ fundamental right to a clean and healthful environment.”[15] Judge Seeley ultimately concluded that the provision did not “serve a compelling government interest,” and even if there was such an interest, the provision was “not narrowly tailored to serve any interest.”[16] Thus, the provision was invalid, giving the youth plaintiffs one of the most important litigation wins of the decade and possibly signaling a path forward for future environmental claims.

Climate Litigation Post-Held

Held did not occur in a vacuum—it occurred against a backdrop of two competing forces. The first force is what motivated the Held plaintiffs to bring their case in the first place: climate change. Over the past summer, the world shattered heat records. June 2023 was the hottest June on record.[17] July was the hottest July on record.[18] And August was the hottest August on record.[19] The most recent summer of extreme heat followed eight of the hottest years on record.[20] These records have exacerbated extreme weather events across the country.[21] Further, in Montana specifically, Judge Seeley found that climate change is currently “degrading” Montana’s environment through “changing precipitation patterns, increasing droughts and aridification, increasing extreme weather events, increasing severity and intensity of wildfires, and increasing glacial melt and loss in like droughts and wildfires.”[22] That is the reality that the youth plaintiffs found themselves in, and it is what motivated them to bring their action against the state.

The Major Questions Doctrine and Increasing Limitations on Federal Action

The second force is the movement opposing large-scale agency actions that has overtaken the federal judiciary. This force culminated in the 2022 Supreme Court decision West Virginia v. EPA. West Virginia presented a challenge to the Obama Administration’s Clean Power Plan (CPP). The CPP was the Administration’s major climate action that attempted to curb greenhouse gas emissions from coal-burning power plants. The CPP used an infrequently utilized provision of the Clean Air Act to not only increase emission controls within power plants but to also force generation shifting away from coal power and towards renewable sources.[23] The Court ultimately invalidated the CPP using the newly minted major questions doctrine.[24] 

According to the Court, in cases of great political or economic importance, an agency, such as the Environmental Protection Agency (EPA), must point to clear congressional authorization to take valid administrative action.[25] In practice, the major questions doctrine is a limit on a federal agency’s ability to address regulatory issues through comprehensive and systematic rules. By their nature, few statutes are written with the level of precision required under the doctrine. Therefore, federal agency actions to address major problems like climate change are likely to be met with skepticism by the federal judiciary, thereby creating a void in the fight against climate change. However, as Held demonstrates, the void creates an opportunity for independent state actions, specifically to use state constitutions to undertake protective actions that are now more difficult on a federal level.

Green Amendments and the Growing Importance of State Constitutions

The amendment to the Montana Constitution at the center of Held was passed in the 1970s, at the beginning of the modern environmental movement.[26] That movement launched in response to growing public awareness of environmental harms from rampant pollution.[27] States responded to the movement by adding environmental provisions into their state constitutions. These so called “green amendments” varied in coverage, but at their core, they provide protections for the environments of their respective states.[28] For most of the intervening fifty years, these state provisions went largely unused.[29] However, as seen in Held, they have now reemerged with a newfound importance.

As of October 2023, Hawaii, Illinois, Montana, New York, Pennsylvania, Massachusetts, and Rhode Island all have green amendments within their state constitutions.[30] Additionally, fifteen other states have ongoing campaigns to codify similar amendments within their own constitutions.[31] These amendments work in two ways. They enable states to affirmatively enact legislation to more directly address issues posed by climate change,[32] and they also give litigants a means to enforce climate protections.[33] For climate activists, the cause of action created by such amendments is especially important in major fossil fuel producing states such as Montana and Pennsylvania, which might otherwise be hesitant to take aggressive steps to curb emissions.[34]

While the use of Montana’s green amendment presents a fair amount of promise for activist litigants, it is unlikely that the success of Held will be the silver-bullet solution long-sought by environmentalists.[35] First, the impact of Held may be limited, because it is unclear how much persuasive value the decision will have since other courts have yet to consider it. Second, outside of Pennsylvania, states with green amendments are not among the highest greenhouse gas-emitting states in the country.[36] The movement to adopt green amendments largely occurs outside of the states that most need to limit their greenhouse gas emissions.[37] Instead, the movement focuses on states with existing plans to address climate change and reduce emissions.[38] Lastly, it is unclear what tangible effects Held will have. The youth plaintiffs failed to secure an injunction to force the state to act; instead, Judge Seeley’s ruling was limited to a declaration of law.[39] Furthermore, the state has promised to appeal the decision to the Montana Supreme Court.[40] These actions may ultimately limit Held’s impact. Nevertheless, Held is an important first step toward addressing the issue of climate change by filling the void left in the aftermath of West Virginia.

Conclusion

The Supreme Court’s decision in West Virginia limited the ability of federal agencies to address complex problems. But there is still an opportunity for action at the state level. While the decision in Held may not be the key in the fight against climate change, it remains an important example of the kind of action that can occur within states. Specifically, it creates an important model for future litigants hoping to capitalize on the inclusion of green amendments in state constitutions. And it signals a wider willingness within state judiciaries to embrace the arguments raised by environmental litigants about the deleterious effects of climate change.

Francesca Eick is a Senior Associate with Baker Botts in Austin. Ms. Eick’s practice focuses on regulatory compliance, permitting, litigation, and transactions involving environmental, land use, natural resource, and energy issues. Ms. Eick has advised public and private clients on matters relating to a range of environmental statutes including the Clean Water Act (CWA), the Endangered Species Act (ESA), the Clean Air Act (CAA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

Julie Molina is a 3L from Houston, Texas. She attended New York University and joined TELJ during her second year of law school. Julie will be practicing in the field of environmental law at a firm upon her graduation.

[1]         Held v. Montana, 2023 MT Dist. Ct. CDV-2020-307, ¶ 60–67 at 100–02.

[2]         See Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020).

[3]         See Reynolds v. Florida, No. 2018-CA-819, 2020 WL 3410846, at *1 (Fla. Cir. Ct. June 10, 2020) (dismissing the complaint by youth plaintiffs because “[t]he claims are inherently political questions that must be resolved by the political branches of government.”).

[4]         Rebecca Lindsey & Luann Dahlman, Climate Change: Global Temperature, Nat’l Oceanic & Atmospheric Admin. (Jan. 18, 2023), https://www.climate.gov/news-features/understanding-climate/climate-change-global-temperature.

[5]         See Daniel Deacon & Leah Litman, The New Major Questions Doctrine, 109 Va. L. Rev. 1009, 1036 (2023) (discussing the Supreme Court’s development of the major questions doctrine and its impact on federal agency action: “[T]he new major questions doctrine functions as a kind of carve out to an agency’s authority broad, but generally worded authority. Congress must clearly and explicitly authorize the particular agency action at issue. If Congress has not done so, that is the end of the matter.”); see also West Virginia v. Env’t Prot. Agency, 142 S. Ct. 2587 (2022).

[6]         See generally Held, No. CDV-2020-307; Juliana, 947 F.3d at 1159; Reynolds, 2020 WL 3410846.

[7]         Held, No. CDV-2020-307 ¶1 at 9.

[8]         Id. at 2.  

[9]         Mont. Const. art. IX, pt. IX, § 1.  

[10]         Held, No. CDV-2020-307 ¶140 at 35.

[11]         David Gelles & Mike Baker, Judge Rules in Favor of Montana Youths in a Landmark Climate Case, N.Y. Times (Aug. 14, 2023), https://www.nytimes.com/2023/08/14/us/montana-youth-climate-ruling.html?smid=url-share (“Montana has 5,000 gas wells, 4,000 oil wells, four oil refineries and six coal mines.”).

[12]         Held, No. CDV-2020-307 ¶265k at 79.

[13]         Id. at ¶138 at 34.

[14]         Id. at 100.  

[15]         Id. at 94.

[16]         Id. at 100–01.

[17]         Julie Bosman, Why Summers May Never Be the Same, N.Y. Times (Oct. 5, 2023),

        https://www.nytimes.com/2023/10/05/us/summer-climate-change.html.  

[18]         Id.

[19]         Id.

[20]         Henry Fountain & Mira Rojanasakul, The Last 8 Years Were the Hottest on Record, N.Y. Times (Jan. 10, 2023), https://www.nytimes.com/interactive/2023/climate/earth-hottest-years.html.  

[21]         Bosman, supra note 17.

[22]         Held, No. CDV-2020-307, at 35.

[23]         West Virginia, 142 S. Ct. at 2596.

[24]         Id. at 2616.

[25]         Id.

[26]         Eric Dietrich, As It Turns 50, Is Montana’s ‘Progressive’ State Constitution Facing a Conservative Midlife Crisis?, Mont. Free Press (Mar. 21, 2022), https://montanafreepress.org/2022/03/21/montana-constitution-50th-birthday-midlife-crisis/.  

[27]         Id.

[28]         Green Amendment, Nat’l Caucus of Env’t Legislators, https://www.ncelenviro.org/issue/green-amendment/ (last visited Nov. 15, 2023).  

[29]         Amanda Eggert, How the Montana Constitution Shapes the State’s Environmental Landscape, Mont. Free Press (Mar. 24, 2022), https://montanafreepress.org/2022/03/24/montana-constitution-environment-stream-access/.  

[30]         Evan George, Will More States Add Green Amendments to Their Constitution?, LegalPlanet (Aug. 30, 2023), https://legal-planet.org/2023/08/30/will-more-states-add-green-amendments-to-their-constitution/.

[31]         Id.

[32]         See Green Amendment, supra note 28.

[33]         See Held, No. CDV-2020-307, at 102.

[34]         See How Much Energy Does Your State Produce, Dep’t of Energy (Nov. 10, 2014),  https://www.energy.gov/articles/how-much-energy-does-your-state-produce#:~:text=In%20fact%2C%20the%20top%20five,five%20fossil%20energy%2Dproducing%20states.

[35]         George, supra note 30.  

[36]         See Energy-Related Carbon Dioxide Emissions by State, 2005-2016, Energy Info. Admin. (Feb. 27, 2019),

        https://www.eia.gov/environment/emissions/state/analysis/.

[37]         See id.; Jennifer Hijazi & Drew Hutchison, Montana Climate Ruling Boosts Case for States’ Green Amendments, Bloomberg L. (Aug. 29, 2023), https://news.bloomberglaw.com/environment-and-energy/montana-climate-ruling-boosts-case-for-states-green-amendments.  

[38]         For example, New York, Hawaii, Rhode Island, Massachusetts, and Montana already have net zero goals in place. See Rona Cohen, States with Net-Zero Carbon Emissions Targets, CSG E. (Mar. 24, 2023), https://csg-erc.org/states-with-net-zero-carbon-emissions-targets/.  

[39]         George, supra note 30.

[40]         Gelles & Baker, supra note 11.

Vol. No. 53-2 Natural Resources

Natural Resources & Land Use

Carbon Sequestration and Class VI Well Primacy

Introduction

The public has become increasingly interested in carbon capture and storage (CCS) as the United States transitions to net-zero carbon emissions.[1] A form of CCS that American entities have recently focused on is geologic sequestration of carbon, where carbon dioxide (CO2)  is captured and stored underground in wells.[2] The underground injection of CO2 is subject to regulation under the Safe Drinking Water Act and requires entities to obtain a permit to inject the carbon.[3] In most states, the Environmental Protection Agency (EPA) is the primary entity for obtaining permits for Class VI wells, which are necessary for geologic sequestration.[4] Like other classes of wells, however, states may obtain primacy, or primary enforcement and permitting authority,[5] and some believe that state primacy will streamline the permitting process.[6]

Streamlining the process could alleviate industry hesitation in seeking permits, since the current process is subject to potential delays as the majority of applications are reviewed by the EPA.[7] Removing this hesitation could increase the implementation of CCS, as monetary incentives have made the technology much more appealing.[8] The Inflation Reduction Act, passed in August 2022, raised the 45Q tax credit for geologic CO2 storage from $50 to $85 per metric ton.[9] Encouragingly, incentives also exist to help states gain primacy. The Infrastructure and Investment Jobs Act provides for a $50 million grant program to support states seeking primacy over Class VI wells.[10]

These incentives will hopefully function together to achieve the desired goal of investment in geologic sequestration. Texas has shown interest in obtaining primacy over these wells with the hope of streamlining the permit process and encouraging business investment.[11] Texas is in the process of amending its rules governing Class VI wells to meet federal standards and applying for primacy.[12] On the heels of these moves, the largest carbon capture plant in the world restarted operations in Texas.[13] If the state’s application is approved, more industry will likely be attracted to the state and geologic sequestration business will continue to develop.

Geologic Sequestration and Class VI Well Primacy

Geologic sequestration stores CO2 underground in rock formations.[14] Natural gas companies have used underground injection of CO2 for both enhanced gas recovery and enhanced oil recovery.[15] Underground injection of CO2 for geologic sequestration, however, is a more recent interest, with EPA publishing its final rule establishing a new class of wells for geologic sequestration in 2010.[16] The regulations associated with Class VI wells were designed to protect underground drinking water sources and address “siting, construction, operation, financial responsibility, testing and monitoring, . . . and site closure.”[17]

To inject carbon dioxide into a Class VI well and sequester it, an entity must apply for a permit. EPA initially has primacy over all Class VI well applications, but states may apply for primacy.[18] Currently, only two states have applied for and received Class VI primacy—North Dakota and Wyoming.[19] To obtain primacy, states must make it through four steps: “(1) pre-application; (2) completeness review and determination; (3) application evaluation; and (4) final rulemaking and codification.”[20]

Texas’ Move Toward Primacy

Texas has initiated the process for gaining primacy over Class VI wells.[21] Currently, however, EPA retains primacy.[22] As such, interested entities must apply for permits through both EPA and the Railroad Commission, the state agency in charge of regulating Class VI wells.[23] If Texas’s application for primacy is approved, the Railroad Commission will be the sole agency that entities in Texas must submit permit applications to. Texas is hopeful that applications running solely through one agency, instead of two, will streamline the permitting process, encourage the CCS business, and complement the state’s oil and gas industry.[24] The state may also have been encouraged by the grant program supporting state primacy in the Infrastructure and Investment Jobs Act.[25]

Texas took its first big step toward primacy on May 3, 2022, when the Railroad Commission voted to (1) publish “proposed amendments to its rules implementing the state program for geologic storage of anthropogenic CO2 and incorporating federal requirements,” (2) submit a pre-application for primacy to EPA, and (3) “request[ed] that the [Texas] Governor formally ask EPA for Class VI UIC well program approval.”[26] After publishing its proposed amendments on May 3,[27] the Railroad Commission quickly made headway on the next action, submitting its pre-application on May 31, 2022.[28] The agency’s proposed amendments were approved on August 30, 2022.[29]  Finally, Texas submitted its application for primacy on December 19, 2022.[30]

Texas is not the only state seeking primacy for Class VI well permits; Louisiana has also applied and is waiting on a decision from EPA.[31] While there is currently only one Class VI Well application pending for Texas, there are 15 pending applications for Louisiana.[32] In response to a request by Louisiana’s governor asking for the status of Louisiana’s primacy application, an EPA spokesperson stated that EPA is still reviewing both Louisiana’s and Texas’ applications for primacy.[33] It is unclear how long the application process will take.[34] The EPA has not stated a timeline, and North Dakota’s and Wyoming’s applications are not consistent reference points—those applications took approximately five years and nine months, respectively.[35]

If Texas’ application for primacy is approved, the Railroad Commission’s rules, which would be at least as stringent as federal standards, will be the sole regulations that entities must abide by for Class VI wells. The rule revisions that were approved in August 2022 amend Part 1, Title 16, Chapter 5 of the Texas Administrative Code.[36] Significant modifications to the rules were made to meet the same stringency as federal standards and to meet the federal administration’s environmental justice goals, including to:

        1. Improve program and permit transparency.  For example, draft permits and draft permit fact sheets will be posted on the Railroad Commission’s website.  Each fact sheet will include, among other things, the type of facility, the source and quantity of carbon dioxide proposed to be injected and stored, and a description of the procedures for reaching a final permit decision.
        2. Define key terms so they are consistent with federal tax credits for these projects.
        3. Require additional data from the permit applicant. For example, applicants must identify the source(s) of carbon dioxide that will be captured by the project. This requirement was added to ensure the collection of more accurate carbon emission data and to help inform advancements in carbon sequestration strategies.
        4. Provide appropriate notice to environmental justice and limited English-speaking households. This new requirement is consistent with the Biden administration’s focus on environmental justice.[37]

Comments made by EPA on the August 2022 rules indicate that while most of the rules are sufficient, stringency concerns remain.[38]

Conclusion

Federal support for climate goals and state primacy have increased incentives for investment in geologic storage and for states to obtain primary jurisdiction over relevant programs. Texas has made significant progress toward being one of the few states with Class VI well primacy. If Texas gains primacy over Class VI wells, it could achieve its goal of attracting more CCS industry to the state.

Francesca Eick is a Senior Associate with Baker Botts in Austin. Ms. Eick’s practice focuses on regulatory compliance, permitting, litigation, and transactions involving environmental, land use, natural resource, and energy issues. Ms. Eick has advised public and private clients on matters relating to a range of environmental statutes including the Clean Water Act (CWA), the Endangered Species Act (ESA), the Clean Air Act (CAA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).

Shelby Thompson is a 3L from Austin, Texas. She attended Texas A&M University before coming to The University of Texas School of Law. Shelby joined TELJ during her 2L year and plans on practicing environmental law.

[1]      See generally Int’l Energy Agency, Energy Technology Perspectives 2020: Special Report on Carbon Capture Utilisation and Storage (2020), https://iea.blob.core.windows.net/assets/ 181b48b4-323f-454d-96fb-0bb1889d96a9/CCUS_in_clean_energy_transitions.pdf. As the U.S. strives to achieve its climate goals, there has been much interest in and incentives for energy production to move toward net-zero carbon emissions. See Renewable Energy, Off. of Energy Efficiency & Renewable Energy, https://www.energy.gov/eere/renewable-energy (last visited Aug. 3, 2023).

[2]      See, e.g., Geologic Storage of Anthropogenic CO2, R.R. Comm’n of Tex., https://www.rrc.texas.gov/oil-and-gas/applications-and-permits/injection-storage-permits/co2-storage/ (last visited Apr. 16, 2023).

[3]      Angela C. Jones, Cong. Rsch. Serv., Summary R46192, Injection and Geologic Sequestration of Carbon Dioxide: Federal Role and Issues for Congress 1 (2022).

[4]      Id.

[5]      See id. at 10–12.

[6]      See Press Release, R.R. Comm’n of Tex., RRC Proposes Rule Changes to Help Implement Oversight of Injection and Storage of Carbon Dioxide (May 3, 2022), https://www.rrc.texas.gov/news/050322-class-vi-primacy/.

[7]      See Jones, supra note 3, at 11 (noting that the EPA has only granted primacy to two states).

[8]      See Incentives for Carbon Capture, Use and Storage: U.S., Bloomberg: NetZero Pathfinders, https://www.bloomberg.com/netzeropathfinders/best-practices/incentives-for-carbon-capture-use-and-storage/ (last visited Aug. 3, 2023).

[9]      Carlos Anchondo, Texas Wants Oversight of CO2 Wells. Other States May Follow., E&E NEWS: ENERGYWIRE (Oct. 3, 2022, 7:10 AM), https://www.eenews.net/articles/texas-wants-oversight-of-co2-wells-other-states-may-follow/.

[10]     Infrastructure Investment and Jobs Act, Pub. L. No. 117-58 § 40306(c), 135 Stat. 429, (codified at 42 U.S.C. § 300h-9(c)).

[11]     See Anchondo, supra note 9.

[12]     47 Tex. Reg. 2,943, 2,944 (2022) (to be codified as amendments to 16 Tex. Admin. Code §§ 5.101–.102, 5.201–.207) (proposed May 20, 2022) (R.R. Comm’n of Tex., Carbon Dioxide (CO2)).

[13]     Kevin Crowley, World’s Biggest Carbon Capture Plant Gets Second Chance in Texas, Bloomberg L. (Feb. 8, 2023, 10:00 AM), https://www.bloomberglaw.com/bloomberglawnews/environment-and-energy/XD0APT1K000000?bna_news_filter=environment-and-energy#jcite.

[14]     What’s the Difference Between Geologic and Biologic Carbon Sequestration?, U.S. Geological Serv., https://www.usgs.gov/faqs/whats-difference-between-geologic-and-biologic-carbon-sequestration (last visited Aug. 3, 2023).

[15]     Class VI – Wells Used for Geologic Sequestration of Carbon Dioxide, Env’t Prot. Agency, https://www.epa.gov/uic/class-vi-wells-used-geologic-sequestration-carbon-dioxide (last updated Dec. 9, 2022); see CO2-Enhanced Oil Recovery, World Res. Inst., https://web.archive.org/web/201204280 82916/http://www.wri.org/publication/content/8355 (last visited Aug. 3, 2023) (stating that companies have used enhanced oil recovery in Texas’s Permian Basin for three decades). For more on enhanced oil recovery, see generally Enhanced Oil Recovery, Off. of Fossil Energy & Carbon Mgmt., https://www.energy.gov/fecm/enhanced-oil-recovery (last visited Aug. 3, 2023).

[16]     Federal Requirements Under the Underground Injection Control (UIC) Program for Carbon Dioxide (CO2) Geologic Sequestration (GS) Wells, 75 Fed. Reg. 77,230 (Dec. 10, 2010) (to be codified at 40 C.F.R. pts. 124, 144–47).

[17]     Id. at 77,246.

[18]     See id. at 77,241.

[19]     See Primary Enforcement Authority for the Underground Injection Control Program, Env’t Prot. Agency, https://www.epa.gov/uic/primary-enforcement-authority-underground-injection-control-program-0 (last updated Aug. 18, 2022).

[20]     John Arnold & Rachael Beavers, Seeking Primacy – the Railroad ‎Commission of Texas Seeks Primary Authority Over the ‎Class VI ‎Carbon Sequestration Program, JDSUPRA (Sept. 20, 2022), https://www.jdsupra.com/legalnews/seeking-primacy-the-railroad-commission-2457088/.

[21]     See Geologic Storage of Anthropogenic CO2, supra note 2.

[22]     States’ Tribes’ and Territories’ Responsibility for the UIC Program. Env’t Prot. Agency, https://www.epa.gov/system/files/documents/2021-11/states-tribes-and-territories-responsibility-for-the-uic-program-_revised18nov2021-.pdf (last visited Aug. 3, 2023).

[23]     Originally, at the state level, both the Texas Commission on Environmental Quality and the Railroad Commission of Texas had jurisdiction over these wells. In 2021, however, H.B. 1284 gave the Railroad Commission sole jurisdiction over Class VI wells at the state level. See Lauren A. Bachtel et al., CCUS: Texas Takes Steps Toward Class VI Primacy, Mayer Brown (Sept. 13, 2022), https://www.mayer brown.com/en/perspectives-events/publications/2022/09/ccus-texas-takes-steps-toward-class-vi-primacy.

[24]     See Geologic Storage of Anthropogenic CO2, supra note 2.

[25]     See 42 U.S.C. § 300h-9(c) (2021).

[26]     Lydia González Gromatzky & Frederick R. Eames, Texas Takes Much-Anticipated Steps to Streamline Permitting and Assume Regulatory Authority for Carbon Sequestration Wells, The Nat’l L. Rev. (May 26, 2022), https://www.natlawreview.com/article/texas-takes-much-anticipated-steps-to-streamline-permitting-and-assume-regulatory.

[27]     Bachtel et al., supra note 23.

[28]     Letter from Wei Wang, Exec. Dir., Tex. Comm’n on Env’t Quality, to Dr. Earthea Nance, Reg’l Adm’r, Reg. 6, Env’t Prot. Agency (May 31, 2022), https://subscriber.politicopro.com/eenews/f/eenews/?id= 00000183-57c1-dc64-abf7-77ff3b140000.

[29]     Bachtel et al., supra note 23.

[30]     Geologic Storage of Anthropogenic CO2, supra note 2.

[31]     Carlos Anchondo, La. Governor Asks EPA for Answer on CO2 Wells, E&E NEWS: ENERGYWIRE (Feb. 10, 2023, 6:56 AM), https://subscriber-politicopro-com.eu1.proxy.openathens.net/article/eenews/ 2023/02/10/la-governor-asks-epa-for-answer-on-co2-wells-00082142.

[32]     Class VI Wells Permitted by EPA, Env’t Prot. Agency, https://www.epa.gov/uic/class-vi-wells-permitted-epa#information (last updated Mar. 29, 2023).

[33]     Anchondo, supra note 32.

[34]     Id.

[35]     Samuel Pickerill et al., Texas Issues New Rules to Facilitate Greater State Control over Carbon Capture Project Permitting, Arnold & Porter (Sept. 23, 2022), https://www.arnoldporter.com/en/perspectives/ blogs/environmental-edge/2022/09/texas-issues-new-rules-to-facilitate-greater-state.

[36]     Geologic Storage of Anthropogenic CO2, supra note 2.

[37]     Bachtel et al., supra note 23 (emphasis added).

[38]     Env’t Prot. Agency, State Primacy Crosswalk: Texas tbl.1 (2022) (on file with Tex. Env’t L. J.).

Vol. No. 53-2 Utilities

Utilities

Retrofitting the Grid: How Senator Manchin’s Permit Reform Could Facilitate an Energy Transition in Texas

Introduction

Climate change will remain a prominent issue in the United States for decades. Attempting to decelerate global warming will require the country to undergo an energy transition and revolutionize its underlying electrical grid.[1] Partially with this end in mind, Senator Joe Manchin released the text for a bill that would accelerate the permitting process for energy projects across the U.S.[2] The initial ninety-one-page document was never formally introduced into the Senate, and Senator Manchin ultimately failed to tack a shorter version onto a defense spending package in December 2022.[3]

The proposal garnered an onslaught of criticism from all directions, including from Democrats, Republicans, and environmental groups.[4] Much of this criticism centered on the bill’s push for agencies to “take all necessary actions to permit the construction and operation” of a project in Appalachia and expedite the construction of other new fossil fuel pipelines.[5] Regardless of the proposal’s deficiencies, experts acknowledge that some kind of permitting reform is necessary for the large-scale renewable energy transition at hand.[6]

This Note explores the provisions proposed in Senator Manchin’s bill and how it might have impacted the construction of a hypothetical wind energy project in Texas’s High Plains region, which includes forty-one counties in the Texas Panhandle and West Texas.[7] Such a project would require permitting interactions with local governments, state agencies, and eventually the federal government.[8] This Note focuses on three key categories of federal permitting requirements—wildlife protection, air and water protection, and National Environmental Policy Act (NEPA) review—and how they would apply to a proposed turbine project. Then, it explores how these requirements would have interacted with Senator Manchin’s proposed legislation.

Federal Permitting Requirements

Wildlife Protection

Since turbine projects can potentially kill flying animals such as birds and bats, the U.S. Fish and Wildlife Service (FWS) has jurisdiction over any new wind installation in the High Plains of Texas.[9] The statutes that affect new wind turbines include the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, and the Endangered Species Act (ESA).[10] The ESA provides a straightforward example. If a project were to incidentally “take” a species on the endangered species list,[11] FWS must authorize the take through a formal permitting process.[12]

Air and Water Protection

Section 404 of the Clean Water Act requires permitting for projects that discharge dredged or fill materials into protected waters and wetlands.[13] A new turbine project in the High Plains would likely fall under this statute’s jurisdiction due to the presence of playa lake wetlands throughout the region,[14] which are essential to the cyclical recharge of the Ogallala aquifer.[15] These jurisdictional waters would be affected by large amounts of waste product from project construction—both from the turbine facility itself and the miles of transmission lines required to bring the power to population centers like Dallas and Austin.[16]

National Environmental Policy Act (NEPA) Review

NEPA is unlike the above statutes in that it is a procedural requirement rather than a permitting mandate.[17] NEPA requires a two-stage evaluation of the environmental impacts of a proposed federal action and is overseen by the White House Council on Environmental Quality.[18] First, for a new wind project, an agency overseeing the permitting process—for example, FWS for projects affecting land species[19]—must prepare an “environmental assessment” to determine whether the project would have a significant impact on the environment.[20] If the agency determines there would be a significant impact, it must then prepare a longer and more detailed “environmental impact statement” (EIS).[21] This review allows local communities, industry groups, and environmental organizations to comment on the project. Our hypothetical wind installation in the High Plains of Texas would certainly require a full NEPA review.[22]

NEPA tends to be the target of criticism since the review process can be lengthy (a median of three and  a half years), although the cause of such delays are in dispute.[23] Even after an agency finishes its EIS, litigants frequently challenge projects on the basis of procedural deficiencies, causing further delays, increasing costs, and stalling momentum for new projects.[24] While NEPA has provided wins for environmental groups,[25] it also poses a hurdle to new renewable energy projects that must be planned for.

How Senator Manchin’s Bill Would Affect This Process

Senator Manchin’s bill would impact a proposed wind facility in the High Plains by accelerating NEPA review and setting a statute of limitations for court challenges.[26] First, the bill defines “major project” as one that requires “multiple authorizations, reviews, or studies” and one that requires an EIS.[27] Since our proposed facility would be a significant public utility, it would likely be classified as a “major project”; this analysis will proceed under this assumption.

As a first step in the accelerated process, the “lead agency”[28]—e.g., the Environmental Protection Agency—would coordinate with each “participating agency”[29]—e.g., FWS for ESA authorization—to create a single environmental document that covers all applicable environmental statutes.[30] Currently, projects may require multiple agencies to create separate documents, such as a “Biological Opinion” prepared by FWS.[31] Additionally, the bill sets a page limit for this singular environmental document of 150 pages, with extra space of up to 300 pages for a project “of unusual scope or complexity.”[32] For major projects, this entire environmental review process should be finished no later than two years after the lead agency provides notice that it will began preparing an EIS.[33] Thus, for our proposed wind facility, if the permitting process would begin now, environmental review would be statutorily required to conclude by 2025 rather than 2026 or later.[34] If an agency in this process fails to meet the deadline, the project sponsor may petition a court to issue an order to the agency to complete its task within ninety days.[35]

Should the involved federal agencies, state officials, or project sponsors reach an impasse, the bill sets forth prescribed dispute resolution schedules to keep the major project moving forward.[36] Regarding potential litigation for a project, the bill sets a statute of limitations of 150 days after an agency finalizes the permit application and requires the reviewing court to undergo “expedited consideration.”[37] If any aspect of the environmental document is remanded, the court must set a “reasonable schedule” to fix the deficiency, not to exceed 180 days from the initial court order.[38]

An additional aspect of Senator Manchin’s bill would assist with creating the expansive new transmission lines required for wind energy expansion in the High Plains. Should the transmission lines be trapped in the CWA state-certification phase, the bill would   empower the Federal Energy Regulatory Commission (FERC) to issue a construction permit for transmission siting.[39] Since any new transmission lines for a wind project in the High Plains would likely be attached to the interstate electrical grid, this reform would likely apply to the theoretical wind facility.[40] Thus, in this case, if the Public Utility Commission of Texas failed to act on a permit application within one year, FERC might intercede and issue one itself.[41]

Conclusion

Constructing new electrical facilities is an exceedingly complex process. Even One could easily get lost digging through the text of the permit reform legislation and its numerous exceptions, deadlines, and chokepoints which could kill a new project. This Note only touches the surface of the regulatory requirements that must be met before applicants can construct new facilities. There is no doubt that some reform is needed to expedite the energy transition. Senator Manchin’s bill provides a starting point for legislators and regulators to consider how to best balance environmental interests while facilitating the transformation of our energy grid.

Paul Sarahan is a member of Enoch Kever PLLC. He focuses his practice on environmental, safety, and transportation issues. He has 28 years of experience in policy, regulation, and commercial use of the environment and has represented clients in the energy, chemical, manufacturing, transportation, and retail industry sectors before federal, state, and local agencies. Paul is a graduate of the University of Texas at Austin, The University of Texas School of Law, and the University of Houston Law Center’s Energy, Environmental and Natural Resources LL.M. program.

 

Jesse Bennett is a dual JD/MPAff student in his second year from Rochester, New York. He attended Hamilton College where he majored in economics and minored in history. Jesse joined TELJ as a 1L.

 

 

[1]      Shannon Osaka, To Fight Climate Change, Environmentalists May Have to Give Up a Core Belief, The Wash. Post (Sep. 2, 2022, 7:00 AM), https://www.washingtonpost.com/climate-environment/2022/ 09/02/fight-climate-greens-have-embrace-big-energy-projects-fast/; see also Steve Cohen, Fossil Fuels Are Dying, but They’re Not Dead Yet, Colum. Climate Sch.: State of the Planet (Nov. 14, 2022), https://news.climate.columbia.edu/2022/11/14/fossil-fuels-are-dying-but-theyre-not-dead-yet/.

[2]      Press Release, Senate Comm. on Energy & Nat. Res., Manchin Releases Comprehensive Permitting Reform Text to be Included in Continuing Resolution (Sep. 21, 2022), https://www.energy.senate. gov/2022/9/manchin-releases-comprehensive-permitting-reform-text-to-be-included-in-continuing-resolution (referencing the Energy Independence and Security Act of 2022).

[3]      See Maxine Joselow, Democrats Try to Salvage Manchin’s Side Deal on Energy Projects, The Wash. Post (Dec. 4, 2022, 10:32 PM), https://www.washingtonpost.com/climate-environment/2022/12/04/ manchin-permitting-reform-bill/; Press Release, Senate Comm. on Energy & Nat. Res., Manchin Releases Permitting Text and Urges Colleagues to Support MVP and Permitting Amendment to NDAA (Dec. 7, 2022).

[4]      Maxine Joselow, Manchin’s Permitting Bill Sets up Dramatic Clash Over Government Funding, The Wash. Post (Sep. 22, 2022, 8:23 AM), https://www.washingtonpost.com/politics/2022/09/22/manchin-permitting-bill-sets-up-dramatic-clash-over-government-funding/ (noting opposition from Senators Bernie Sanders and Tim Kaine); Letter from Jeff Landry, La. Att’y General, et al. to Chuck Schumer, Majority Leader, Senate, and Mitch McConnell, Minority Leader, Senate (Sep. 26, 2022), https://www.tn.gov/content/dam/tn/attorneygeneral/documents/pr/2022/pr22-37-letter.pdf (collecting signatures of Republican state attorneys general); Letter from ActionAid USA et al. to Chuck Schumer, Majority Leader, Senate, and Nancy Pelosi, Speaker, House of Representatives (Aug. 24, 2022), https://peoplevsfossilfuels.org/dirty-deal-letter/ (opposing fossil fuel projects and proposed permitting reform); Rachel Frazin, Senate Rejects Manchin’s Energy Permitting Amendment to Defense Bill, The Hill (Dec. 15, 2022, 6:37 PM), https://thehill.com/policy/energy-environment/3776418-senate-rejects-manchins-energy-permitting-amendment-to-defense-bill/.

[5]      Daniel Moore, Mountain Valley Pipeline Shield in Manchin Deal Raises Hackles, Bloomberg L. (Aug. 2, 2022, 12:59 PM), https://news.bloomberglaw.com/environment-and-energy/mountain-valley-pipeline-shield-in-manchin-deal-raises-hackles (quoting the Energy Independence and Security Act of 2022).

[6]      See Shannon Osaka, Why the Defeat of Manchin’s Energy Bill Could Be a Loss for the Climate, The Wash. Post (Sep. 28, 2022, 1:47 PM), https://www.washingtonpost.com/climate-environment/2022/ 09/28/manchin-permitting-reform-climate/.

[7]      See Jayme Lozano, Why the Texas Grid Causes the High Plains to Turn Off Its Wind Turbines, The Tex. Trib. (Aug. 2, 2022, 10:00 AM), https://www.texastribune.org/2022/08/02/texas-high-plains-wind-energy/ (exploring the potential for cheap power from the region and barriers to scaling-up wind facilities).

[8]      Id.; see also Rayan Sud & Sanjay Patnaik, How Does Permitting for Clean Energy Infrastructure Work?, Brookings (Sep. 28, 2022), https://www.brookings.edu/research/how-does-permitting-for-clean-energy-infrastructure-work/ (explaining the federalized process for permitting new projects).

[9]      See U.S. Fish & Wildlife Serv., Land-Based Wind Energy Guidelines 1–4 (2012), https://www.fws.gov/sites/default/files/documents/land-based-wind-energy-guidelines.pdf (introducing and explaining FWS’s statutory authority over wind energy projects).

[10]     Id.

[11]     See 16 U.S.C. § 1532(19) (“The term ‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”).

[12]     See id. § 1536(a)(2) (requiring formal consultation when federal funding or permitting is involved); id. § 1539(a)(1)(B) (requiring an individual incidental take permit).

[13]     33 U.S.C. § 1344; Permit Program Under CWA Section 404, Env’t Prot. Agency, https://www.epa. gov/cwa-404/permit-program-under-cwa-section-404 (last updated Apr. 20, 2022).

[14]     Panhandle Playa Lakes, Tex. Parks & Wildlife, https://tpwd.texas.gov/landwater/land/habitats/high_ plains/wetlands/playa.phtml (last visited Aug. 1, 2023) (“Playas are shallow, circular-shaped wetlands that are primarily filled by rainfall, although some playas found in cropland settings may also receive water from irrigation runoff.”).

[15]     Rudolph A. Rosen, Texas Aquatic Science Textbook (2013).

[16]     See Sud & Patnaik, supra note 9 (“Wind . . . projects . . . likely [] need Clean Air Act and Clean Water Act permits during their construction phases as they entail regular construction pollution.”); Lozano, supra note 8 (noting the need for extensive transmission construction).

[17]     See Sud & Patnaik, supra note 9 (“NEPA does not mandate a separate permit like the other [environmental] laws . . . . Instead, it is a procedural law, requiring an assessment of the environmental impacts of any significant federal action, including any project that the federal government issues a permit for.”).

[18]     Id.; 42 U.S.C. § 4344 (denoting the duties and functions of the Commission on Environmental Quality (CEQ)); see also 40 C.F.R. § 1500.1 (2023) (explaining CEQ’s interpretation of the purpose and policy behind NEPA).

[19]     See 40 C.F.R. § 1501.7 (2023) (establishing that a lead agency will oversee NEPA review for each project); see, e.g., Draft Environmental Impact Statement and Habitat Conservation Plan for Commercial Wind Energy Developments Within Nine States, 76 Fed. Reg. 41,510, 41,511 (July 14, 2011) (“[W]e, the Fish and Wildlife Service, as lead agency, advise the public that we intend to prepare an [EIS] on a proposed application . . . .”).

[20]     See 40 C.F.R. § 1501.5 (2023).

[21]     See 42 U.S.C. § 4332(C) (primary authorizing statute); 40 C.F.R. §§ 1502.1–.24 (2023) (CEQ’s implementing regulations).

[22]     See Sud & Patnaik, supra note 9 (“Nearly every major renewable energy project requires a NEPA review.”).

[23]     Id.

[24]     Id.; see, e.g., Am. Rivers v. FERC, 895 F.3d 32, 55 (D.C. Cir. 2018) (vacating relicensing for a hydroelectric project on procedural grounds); Pub. Emps. for Env’t Resp. v. Hopper, 827 F.3d 1077, 1090 (D.C. Cir. 2016) (vacating and remanding the EIS prepared for a proposed offshore wind facility in Massachusetts).

[25]     See, e.g., WildEarth Guardians v. U.S. Bureau of Land Mgmt., 870 F.3d 1222, 1240 (10th Cir. 2017) (striking down an EIS for coal leases and further delaying the project).

[26]     U.S. Senate Comm. on Energy & Nat. Res., 117th Cong., Building American Energy Security Act of 2022 8–11, 38, https://www.energy.senate.gov/services/files/FAED4818-E382-4210-B452-5A3D0D8D58A8?utm_source=DCS+Congressional+E-mail&utm_medium=Email&utm_term=https% 3a%2f%2fwww.energy.senate.gov%2fservices%2ffiles%2fFAED4818-E382-4210-B452-5A3D0D8D 58A8&utm_campaign=Manchin+Releases+Permitting+Text+and+Urges+Colleagues+to+Support+MVP+and+Permitting+Amendment+to+NDA (last visited Aug. 1, 2023) (introduced by Senator Manchin).

[27]     Id. at 4.

[28]     Id. at 3.

[29]     Id. at 4.

[30]     Id. at 14–15.

[31]     See, e.g., Am. Rivers v. FERC, 895 F.3d 32, 44–45, 49–50 (D.C. Cir. 2018) (documenting that the project required both a proper Biological Opinion and EIS).

[32]     Building American Energy Security Act of 2022, supra note 29, at 16.

[33]     Id. at 21.

[34]     See id.; Sud & Patnaik, supra note 8 (noting the median review time for an EIS is 3.5 years).

[35]     Building American Energy Security Act of 2022, supra note 29, at 30–31.

[36]     Id. at 32–35.

[37]     Id. at 38.

[38]     Id. at 38–39.

[39]     Id. at 65.

[40]     See Regional Transmission Organization Map, Fed. Energy Regul. Comm’n, https://www.ferc.gov/ sites/default/files/2020-05/elec-ovr-rto-map.pdf (last visited Aug. 1, 2023) (demonstrating the High Plains region overlaps with an interstate electrical grid); see also NextEra Energy Capital Holdings, Inc. v. Lake, 48 F.4th 306, 310 (5th Cir. 2022) (noting the interstate nature of electricity grids and that Texas’s statute banning out-of-state entrants to its energy markets violates the dormant Commerce Clause).

[41]     Building American Energy Security Act of 2022, supra note 29, at 67–68.

Vol. No. 53-2 Washington Update

Washington Update

Revising the Definition of “Waters of the United States”

In December 2022, the U.S. Environmental Protection Agency (EPA) and the U.S. Army announced a new rule revising the definition of “waters of the United States.”[1] The final rule was published in the federal register on December 30, 2022 and became effective on March 20, 2023.[2] EPA and the Army (the Agencies) used legislative authority granted under the Clean Water Act to update the definition of “waters of the United States” and seek to reestablish water protections that existed prior to 2015.[3]

The Navigable Waters Protection Rule

Between 2015 and 2020, the definition of “waters of the United States” was revised three times.[4] The third revision resulted in the 2020 Navigable Waters Protection Rule (NWPR), which was the product of an executive order signed on February 28, 2017, under the Trump administration.[5] The NWPR was a departure from the pre-2015 rule that the Agencies had used for decades to define “waters of the United States.”[6] The NWPR excluded, for the first time, interstate waters, all ephemeral streams, and traditional navigable waters; some territorial seas also fit within the NWPR’s exclusions.[7]

Federal district courts in both Arizona and New Mexico remanded the NWPR at trial and vacated the rule. In the Arizona case, Pascua Yaqui Tribe v. EPA, the court stated that “[t]he seriousness of the Agencies’ errors in enacting the NWPR, the likelihood that the Agencies will alter the NWPR’s definition of ‘waters of the United States,’ and the possibility of serious environmental harm if the NWPR remains in place upon remand, all weigh in favor of remand with vacatur.”[8]

The court in New Mexico agreed, stating that the NWPR had “fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition of ‘waters of the United States.’”[9] After these and several other federal district courts vacated or remanded the NWPR, EPA ceased to use that rule’s definition and reverted to the pre-2015 definition of “waters of the United States.”[10] These court decisions and EPA’s response triggered the new rulemaking.

On January 20, 2021, President Biden signed Executive Order 13990.[11] Some of the stated goals of the executive order were to “listen to the science; to improve public health and protect our environment; [and] to ensure access to clean air and water.”[12] As part of the executive order, all agencies were directed to “immediately review and, as appropriate and consistent with applicable law, take action to address the promulgation of Federal regulations and other actions during the last 4 years that conflict with these important national objectives, and to immediately commence work to confront the climate crisis.”[13] Review of the NWPR resulted in the Agencies’ decision to replace it.[14]

The New Rule

The Agencies’ revisions to the definition of “waters of the United States” are based on the pre-2015 paradigm, commonly referred to as the “1986 regulations,”[15] with the goal of making the new definition match the older rule.

Scope of the New Rule

The new rule brings previously excluded waters back into the category of jurisdictional waters. Under the new rule, the Agencies define “waters of the United States” as:

. . . [(1)] traditional navigable waters, the territorial seas, and interstate waters (“paragraph (a)(1) waters”); . . . [(2)] impoundments of “waters of the United States” (“paragraph (a)(2) impoundments”); . . . [(3)] tributaries to traditional navigable waters, the territorial seas, interstate waters, or paragraph (a)(2) impoundments when the tributaries meet either the relatively permanent standard or the significant nexus standard (“jurisdictional tributaries”); . . . [(4)] wetlands adjacent to paragraph (a)(1) waters; wetlands adjacent to and with a continuous surface connection to relatively permanent paragraph (a)(2) impoundments or jurisdictional tributaries when the jurisdictional tributaries meet the relatively permanent standard; and wetlands adjacent to paragraph (a)(2) impoundments or jurisdictional tributaries when the wetlands meet the significant nexus standard (“jurisdictional adjacent wetlands”); . . . [and (5)] intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (a)(1) through (4) that meet either the relatively permanent standard or the significant nexus standard (“paragraph (a)(5) waters”).[16]

The Agencies stated that they believe this definition fits the objectives of the Clean Water Act, respects the Act’s limits, and aligns the rule with decades of scientific expertise and implementation experience.[17]

Limitations, Exclusions, and Agency Judgment

While the new rule brings certain waters back under Agency jurisdiction, like traditional navigable waters and territorial seas that had fit within one of the NWPR’s exclusions, it also creates exclusions based on the 1986 regulations.[18] These exclusions are largely based on the “relatively permanent” or “significant nexus” standards.[19] Tributaries, adjacent wetlands, lakes and ponds, streams, and wetlands that are not identified in paragraphs (a)(1) through (4) must meet either the relatively permanent standard or the significant nexus standard.[20] Under the rule, waters that do not meet one of these standards are not “waters of the United States.”

The Agencies state that the relatively permanent or significant nexus standards fit the Clean Water Act’s best available science requirement because “the ‘significant nexus’ standard established in [the] rule is based on an assessment of the effects of waters in these categories on the water quality of paragraph (a)(1) waters.”[21] Similarly, the “relatively permanent” standard results in various protections of the integrity of jurisdictional waters.[22]

Additionally, waters that do not fall within established categories may still be covered under the new rule. In the past, waters not within an established category could be covered if they had effects on water quality and on interstate commerce.[23] However, the new rule replaces the “interstate commerce” test with the relatively permanent and significant nexus standards used elsewhere in the rule.[24] Thus, Agencies cannot assert jurisdiction over non-navigable, intrastate waters solely because of the impact their use has on interstate or foreign commerce.[25]

Certain categorized and non-categorized waters may require fact-intensive consideration by the Agencies to determine whether they fall under agency jurisdiction. The Agencies, as always, have authority to include or exclude waters from “waters of the United States” on a case-by-case basis.[26]

Response to and Current Status of the New Rule

While the new rule generally returns to the older definition of “waters of the United States,” its publication quickly faced pushback from numerous states. Twenty-five states formed a coalition to challenge the rule;[27] many are the same states that challenged the 2015 expansion of the rule under the Obama administration.[28] Those lawsuits led to the revisions from 2015 to 2020, ultimately resulting in the Trump administration’s NWPR.[29]

These states seek a preliminary injunction to prevent the rule from taking effect and argue that the new rule is an overreach.[30] However, the NWPR has been vacated or remanded by several federal district courts, and the Agencies are using the pre-2015 definition of “waters of the United States” pending implementation of the new rule.[31] One potential sticking point for the new rule is the Supreme Court’s decision in Sackett v. EPA, which may impact whether the Biden administration decides to propose a second new definition of “waters of the United States” at the end of 2023.[32]

Jacob Arechiga is a Special Counsel in Duane Morris LLP’s Philadelphia, PA office. His practice is focused on complex commercial matters, particularly those in the energy and electric power industries.

 

Stephen DeVinney is a 3L from New Port Richey, Florida. He graduated from the University of Florida and joined TELJ during his second year of law school. Stephen discovered an interest in the legal issues surrounding water quality and environmental toxics in law school, and he will be working in litigation for the Office of the Texas Attorney General after graduation. 

 

[1]      See Press Release, Env’t Prot. Agency, EPA and Army Finalize Rule Establishing Definition of WOTUS and Restoring Fundamental Water Protections (Dec. 30, 2022), https://www.epa.gov/newsreleases/epa-and-army-finalize-rule-establishing-definition-wotus-and-restoring-fundamental.

[2]      Revised Definition of “Waters of the United States”, 88 Fed. Reg. 3,004 (Jan. 18, 2023) (to be codified at 33 C.F.R. pt. 328, 40 C.F.R. pt. 120).

[3]      Revising the Definition of “Waters of the United States”: Final Revised Definition of “Waters of the United States”, Env’t Prot. Agency, https://www.epa.gov/wotus/revising-definition-waters-united-states (last updated Apr. 13, 2023); Revised Definition of “Waters of the United States”, 88 Fed. Reg at 3,105.

[4]      Clean Water Rule: Definition of “Waters of the United States”, 80 Fed. Reg. 37,053 (June 29, 2015); Definition of “Waters of the United States”—Recodification of Pre-Existing Rules, 84 Fed. Reg. 56,626 (Oct. 22, 2019); The Navigable Waters Protection Rule: Definition of “Waters of the United States”, 85 Fed. Reg. 22,250 (Apr. 21, 2020).

[5]      The Navigable Waters Protection Rule: Definition of “Waters of the United States”, 85 Fed. Reg. at 22,250; Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States’’ Rule, 82 Fed. Reg. 12,497 (Mar. 3, 2017).

[6]      The Navigable Waters Protection Rule: Definition of “Waters of the United States”, 85 Fed. Reg. at 22,260.

[7]      Revised Definition of “Waters of the United States”, 88 Fed. Reg. at 3,016 (citing The Navigable Waters Protection Rule: Definition of “Waters of the United States”, 85 Fed. Reg. at 22,251–52).

[8]      Pascua Yaqui Tribe v. U.S. Env’t Prot. Agency, 557 F. Supp. 3d 949, 956 (D. Ariz. 2021), appeal dismissed sub nom. Pasqua Yaqui Tribe v. U.S. Env’t Prot. Agency, No. 21-16791, 2022 WL 1259088 (9th Cir. Feb. 3, 2022).

[9]      Navajo Nation v. Regan, 563 F. Supp. 3d 1164, 1168 (D.N.M. 2021) (quoting Pascua Yaqui Tribe, 557 F. Supp. 3d at 955).

[10]     Revised Definition of “Waters of the United States”, 88 Fed. Reg. at 3,016 (citing, e.g., In re EPA & Dep’t of Def. Final Rule, 803 F.3d 804, 806, 808 (6th Cir. 2015)) (“While the 2015 Clean Water Rule went into effect in some parts of the country in August 2015, it was never implemented nationwide due to multiple injunctions and later rulemakings.”).

[11]     Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, Exec. Order No. 13990, 86 Fed. Reg. 7,037 (Jan. 20, 2021).

[12]     Id.

[13]     Id.

[14]     Revised Definition of “Waters of the United States”, 88 Fed. Reg. at 3,005.

[15]     Id. at 3,007.

[16]     Id. at 3,005–06.

[17]     Id. at 3,137.

[18]     Id. at 3,020.

[19]     Id.

[20]     Revised Definition of “Waters of the United States”, 88 Fed. Reg. at 3,137.

[21]     Id. at 3,024.

[22]     Id.

[23]     Id. at 3,011–12.

[24]     Id. at 3,029.

[25]     Id.

[26]     See Revised Definition of “Waters of the United States”, 88 Fed. Reg. at 3,129. (“The rule properly authorizes case-specific consideration of certain waters not covered by the categories established in the rule.”).

[27]     See Cindy Gonzalez, Nebraska Joins Other States to Fight New WOTUS Rule, Neb. Exam’r (Feb. 16, 2023, 7:26 PM), https://nebraskaexaminer.com/briefs/nebraska-joins-other-states-to-fight-new-wotus-rule/ (noting that Nebraska joined twenty-four other states).

[28]     Compare id., with Neena Satifja, Texas Sues EPA Over Provision of Federal Water Law, The Tex. Trib. (June 29, 2015, 4:00 PM), https://www.texastribune.org/2015/06/29/texas-sues-obama-administration-epa-water/.

[29]     See Gonzalez, supra note 27 (noting that the Trump Administration’s rule was made in response to the Obama-era rule).

[30]     See Bobby Magill & Samantha Hawkins, Water Lawsuits Will Roll on Even As High Court Weighs in, Bloomberg L. (Mar. 1, 2023, 4:30 AM), https://news.bloomberglaw.com/environment-and-energy/ waters-lawsuits-will-roll-on-even-as-high-court-weighs-in (“The lawsuits claim the EPA is exceeding its authority and that the rule is overly vague and premature because it was finalized in January ahead of the high court’s future ruling in Sackett v. EPA, expected by June.“).

[31]     Revised Definition of “Waters of the United States”, 88 Fed. Reg. at 3,016.

[32]     Sackett v. Env’t Prot. Agency, 143 S. Ct. 1322 (2023).