The Biggest Environmental Rulings Of 2023: Midyear Report

This year has already brought several landmark environmental rulings, from the U.S. Supreme Court's decisions narrowing the scope of the Clean Water Act and allowing a California animal care law to survive to important settlements by major companies accused of wrongdoing in "forever chemicals" litigation.

With 2023 only half over, other important decisions include the Fifth Circuit allowing the Biden administration's calculations on the social cost of greenhouse gases to stand and the high court's refusal to reconsider a slew of lower court cases remanding climate change tort litigation to state courts.

Here are some of the biggest environmental law decisions so far in 2023.

Clean Water Act

In May, the justices overturned a Ninth Circuit ruling that Idaho landowners needed a Clean Water Act permit to build a home on their property. The high court found that nearby wetlands did not qualify as "waters of the United States" under the act.

But the justices diverged on exactly when a wetland is subject to Clean Water Act jurisdiction, and a five-member majority created a new, much narrower test for the U.S. Environmental Protection Agency, Army Corps of Engineers, state regulators and a host of other affected parties to use when trying to figure out if a wetland can be regulated by the federal government.

Many wetlands that were once thought to be covered by the law are now assumed to be unprotected, and the EPA and Army Corps have said they intend to rewrite federal regulations to match the court's opinion.

Jesse Richardson, a professor at West Virginia University College of Law, said the waters of the U.S. rule is "extremely important" because the regulated community — farmers, builders and others — as well as regulators and environmental groups need certainty. But he said the high court's decision in the Sackett case also highlighted other regulatory issues.

"Although the Sackett decision arguably provided some certainty on a very narrow issue (adjacent wetlands), many other areas remain unclear," Richardson told Law360 in an email. "In addition, some would say that the standard announced in Sackett lacks sufficient clarity. If Congress continues to fail to act, the agencies need to develop a rule that gives certainty to stakeholders and will withstand judicial scrutiny."

The case is Michael Sackett et al. v. U.S. Environmental Protection Agency et al. , case number 21-454, in the Supreme Court of the United States.

"Forever Chemicals"

In June, public water utilities and chemical companies 3M, DuPont, Chemours and Corteva put an end to litigation over the contamination of drinking water supplies with per- and polyfluoroalkyl substances, or PFAS, known as "forever chemicals" because of their tendency to persist in the human body and the environment. The EPA has said some PFAS are known to cause serious health problems for people.

In one instance, DuPont, Chemours and Corteva struck a deal worth more than $1.1 billion with utilities around the U.S., and shortly after that, a $12.5 billion deal was announced between 3M and the utilities. The settlements resolve claims that their products have contaminated drinking water sources nationwide.

The settlements, which are still being finalized and will be subject to court approval, came days before a bellwether trial was set to begin as part of South Carolina-based multidistrict litigation consolidating cases against manufacturers and users of PFAS for applications like nonstick or stain-resistant coatings and firefighting foam.

PFAS take an extremely long time to break down and "bioaccumulate" in humans and other living things that are exposed to them, according to the underlying litigation. The suits claim DuPont and others have known for decades about the chemicals' persistence and toxicity.

There are still other defendants in the MDL, but the resolution of claims with the large chemical companies was a huge development in the litigation.

The case is In re: Aqueous Film-Forming Foams Products Liability Litigation , case number 2:18-mn-02873, in the U.S. District Court for the District of South Carolina.

Social Cost of Greenhouse Gases

The Fifth Circuit in April rejected a claim by a group of Republican-led states that they are suffering under the Biden administration's calculations of the social cost of greenhouse gas emissions, finding the states could only point to a "chain of hypotheticals" to prove an injury. That decision agreed with an earlier Eighth Circuit decision dismissing a challenge from a separate group of states.

The Fifth Circuit rejected arguments presented by Louisiana and other states that the White House improperly crafted social cost of greenhouse gas estimates, which can be used in federal rulemakings to put a dollar figure on climate change harms, without first putting them up for public review. The states had also argued that they face increased regulatory burdens and costs because of the way the estimates could be used.

The dispute revolves around President Joe Biden's decision early in his tenure to reconvene the Interagency Working Group, which was started during the Obama administration and is tasked with calculating the social costs of carbon dioxide, methane and nitrous oxide. Those metrics seek to put a price on the economic costs, or damages, of emitting carbon dioxide into the atmosphere — and, therefore, the benefits of reducing emissions.

According to the Fifth Circuit, Biden's executive order did not actually require any action from federal agencies, presenting a problem for the states' standing. The judges said that agencies are not punished or rewarded for how they choose to use the interim estimates, and have discretion in conducting cost-benefit analyses that could include the estimates.

In the Eighth Circuit case, the panel said there's no evidence the states have suffered any injury that would give them standing to sue. That ruling has been appealed to the Supreme Court, which has not yet made a decision on whether to accept the case.

The case is Louisiana et al. v. Biden et al ., case number 22-30087, in the U.S. Court of Appeals for the Fifth Circuit.

Dormant Commerce Clause

The justices made news again in May when they upheld a California ballot initiative that banned in-state sales of pork born from sows kept in confined housing.

In a 5-4 ruling, the justices rejected the National Pork Producers Council and American Farm Bureau Federation's challenge to a 2018 voter-approved ballot initiative that, among other things, banned in-state sales of meat from pigs born to mothers confined in small spaces.

The majority said that the business groups failed to prove that California's Proposition 12 violates the Constitution's dormant commerce clause, which isn't spelled out in the document but has been interpreted as barring states from discriminating between out-of-state and in-state companies.

Allyson Ho, a partner at Gibson Dunn & Crutcher LLP and co-chair of the firm's nationwide appellate and constitutional law practice group, told Law360 her biggest takeaway from the case is that the Supreme Court is — and seems likely to remain — deeply fractured over the nature and scope of the dormant commerce clause. 

In particular, Ho noted that the justices diverged on how to interpret the court's 1970's Pike v. Bruce Church  decision, which says state laws are unconstitutional if the burden they impose on interstate commerce is "clearly excessive in relation to the putative local benefits."

"The court tightened up dormant commerce clause doctrine by rejecting the argument that the clause creates any per se rule against laws with extraterritorial effects, clarifying that the 'heartland' of the Pike test is smoking out purposeful discrimination against out-of-state business and upholding the California law at issue," Ho said.

"But the court didn't slam the door shut," she added. "It declined to overrule Pike's balancing test altogether and left open the possibility that future challenges to laws imposing substantial burdens on interstate commerce could prevail, whether under the dormant commerce clause, or other constitutional provisions."

The case is National Pork Producers Council et al. v. Karen Ross et al. , case number 21-468, in the Supreme Court of the United States.

Climate Change

In April, the Supreme Court declined to review several federal court orders sending climate change lawsuits brought by state and local governments against fossil fuel companies back to state and local courts.

Chevron Corp., Exxon Mobil Corp. and other companies had asked the high court to review circuit court decisions that held the state and local governments' cases seeking to hold the businesses liable for climate-related infrastructure damages didn't involve questions of federal law that would have given federal courts jurisdiction.

The First, Third, Fourth, Eighth, Ninth and Tenth circuits all affirmed lower court remands of lawsuits by state and local governments accusing energy companies of promoting production and use of fossil fuels while concealing their environmental risks, in violation of state laws including nuisance, trespass and consumer fraud.

The companies had argued that claims related to greenhouse gas emissions and climate change are a matter of federal common law, while the state and local governments argued that there's no clear circuit split and that their state-law claims don't raise any uniquely federal issues.

The companies have said they intend to keep fighting the lawsuits in whatever venue they are heard.

The cases are Suncor Energy (U.S.A.) Inc. et al. v. Boulder County et al. , case number 21-1550; BP PLC et al. v. Baltimore , case number 22-361; Chevron Corp. et al. v. San Mateo County, California, et al. , case number 22-495; Sunoco LP et al. v. Honolulu, Hawaii et al .; and case number 22-523; Shell Oil Products Co. LLC et al. v. Rhode Island , case number 22-524, all before the Supreme Court of the United States.