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 FactsNat’l Park Serv., https://www.nps.gov/miss/riverfacts.htm (last updated Feb. 10, 2022).

[2]         Mississippi River Deepening from 45 to 50 Feet AuthorizedState 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 Factssupra note 1; Moira McDonald, River at Risk: The MississippiWalton 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 WedgeU.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 RiverTul. 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 IntrusionCity 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 WarnThe 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 Riversupra 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 Riversupra note 9; Press Release, Ricky Boyett, Latest Saltwater Wedge Forecast Released by USACEU.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 Riversupra 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 ChemicalsThe 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 1974Ctr. 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 Standardssupra note 36.

[38]         Community Preparedness and Health ProtectionLa. 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 DeclarationThe 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, LouisianaU.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 UpdatesPlaquemines 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 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 PFASEnv’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 PFASsupra 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 PFASsupra 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 LawsuitsN.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’ SuitsN.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 LitigationBloomberg 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 RulingBloomberg 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 EarplugsREUTERS (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 SetbacksWall 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 PollutionChemsec (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 RegulationEnv’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 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 PowerWorld 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 Powersupra 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 SystemsU.S. Nuclear Regul. Comm’n (Aug. 21, 2023), https://www.nrc.gov/materials/fusion-energy-systems.html.

[22]         Daniel H. DormanSECY-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 FissionPillsbury (April 19, 2023), https://www.pillsburylaw.com/en/news-and-insights/nrc-fusion-energy-nuclear-fission-regulation.html.

[24]         Id.

[25]         Fusion Systemssupra 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 Systemssupra note 21.

[30]         Agreement StatesU.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 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 MoreComptroller.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. EPAWest 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 TemperatureNat’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 CaseN.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 SameN.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 RecordN.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 AmendmentNat’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 LandscapeMont. 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 ProduceDep’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, 2005-2016Energy 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 AmendmentsBloomberg 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 TargetsCSG 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.