Supreme Court Preview of 2020-2021
February 2, 2021
Environmental and Energy Law Cases and
Linda Tsang, Coordinator
Review of 2019-2020 Rulings
Legislative Attorney

The Supreme Court 2019-2020 term, which started on October 1, 2019, was historic in
Kate R. Bowers
unexpected ways. The Coronavirus Disease 2019 (COVID-19) pandemic resulted in the Court
Legislative Attorney
indefinitely closing its building to the public, postponing oral arguments, and conducting

telephonic oral arguments for the first time in history.
Eric N. Holmes
Beyond the effects of the pandemic, the 2019-2020 Term was notable for the substantive
Legislative Attorney

opinions that the Supreme Court issued on environmental, energy, and natural resources (EENR)
law issues. Of particular note for Congress’s work, the Court’s term included these opinions:
Stephen P. Mulligan
Legislative Attorney
 County of Maui v. Hawaii Wildlife Fund, holding that the Clean Water Act requires a

permit when there is a direct discharge from a pollution source into navigable waters or
Adam Vann
when there is the functional equivalent of a direct discharge;
Legislative Attorney
 Atlantic Richfield Co. v. Christian, holding that the Montana state courts had

jurisdiction over the landowners’ restoration damages claim, and that EPA must approve
Erin H. Ward
the restoration plans because the landowners were potentially responsible parties under
Legislative Attorney
the Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA); and
 United States Forest Service v. Cowpasture River Preservation Association, holding

that the U.S. Forest Service had authority under the Mineral Leasing Act to grant a
natural-gas pipeline right-of-way through lands in the George Washington National Forest traversed by the
Appalachian Trail.
The Supreme Court’s 2020-2021 term, which began on October 5, 2020, features cases relating to states’ competing claims to
several interstate rivers, disclosure of agency documents produced during an Endangered Species Act consultation, the
appropriate court to decide climate change liability suits, the small refinery exemptions under the Clean Air Act’s renewable
fuel standard, the relationship between separate CERCLA provisions for recouping cleanup costs, and other areas of EENR
law. The Court is also reviewing petitions for a writ of certiorari and complaints related to the scope of the President’s
authority to declare national monuments under the Antiquities Act, a state’s denial of a water quality certification under
Section 401 of the Clean Water Act, eminent domain authority under the Natural Gas Act, and other petitions that may
implicate EENR issues. The Biden Administration could change executive branch policy on certain matters and its litigation
strategies in pending cases.
In the 2020-2021 term, Justice Amy Coney Barrett began serving as the 103rd Associate Justice of the Supreme Court, filling
the vacancy left by the death of Justice Ginsburg at the end of the 2019-2020 term. Legal commentators anticipate that
Justice Barrett’s judicial philosophies may affect the Court’s majority views on agency deference, the scope of the federal
agency’s authority to implement EENR statutes, and the justiciability of environmental claims.
This report reviews some the major EENR decisions from the Supreme Court’s 2019-2020 term and previews the legal
disputes and arguments in selected EENR cases and petitions for certiorari in the 2020-2021 term. The report also highlights
the broader implications of these decisions and cases for Congress.
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link to page 5 link to page 19 Supreme Court Preview of Environmental Law Cases and Review of Rulings

he Supreme Court 2019-2020 term, which started on October 1, 2019, was historic in
unexpected ways. The Coronavirus Disease 2019 (COVID-19) pandemic resulted in the
T Court indefinitely closing its building to the public, postponing oral arguments, and
conducting telephonic oral arguments for the first time in history.1 Near the end of the term,
on September 18, 2020, Justice Ruth Bader Ginsburg passed away after serving on the Court for
27 years.2
Beyond the effects of the pandemic and Justice Ginsburg’s passing, the 2019-2020 term was
notable for the substantive opinions that the Court issued on environmental, energy, and natural
resources (EENR) law issues. These decisions addressed the scope of the Clean Water Act’s
(CWA’s) permitting program, limits on challenges to the government’s plan to remediate
hazardous waste contamination, and which federal agency has the authority to issue a permit for
an infrastructure project to cross the Appalachian National Scenic Trail.3
The Supreme Court’s 2020-2021 term, which began on October 5, 2020, features cases relating to
states’ competing claims to several interstate rivers, disclosure of agency documents produced
during an Endangered Species Act consultation, the appropriate court to decide climate change
liability suits, the Clean Air Act’s (CAA’s) renewable fuel standard, the relationship between
separate CERCLA provisions for recouping cleanup costs, and other areas of EENR law.4 The
Court is also reviewing petitions for a writ of certiorari and complaints5 related to national
monuments, water quality certification under Section 401 of the CWA, and other petitions that
implicate EENR issues.6 The Biden Administration could change executive branch policy on
certain matters and its litigation strategies in pending cases.7
In the 2020-2021 term, Justice Amy Coney Barrett began serving as the 103rd Associate Justice
of the Supreme Court, filling the vacancy left by the death of Justice Ginsburg.8 Legal
commentators anticipate that Justice Barrett’s judicial philosophy on agency deference,
congressional delegation of rulemaking authority to the executive branch, and federal court

1 For further background on the Supreme Court’s 2019-2020, see CRS Report R46515, Supreme Court October Term
2019: A Review of Selected Major Rulings, coordinated by Valerie C. Brannon.
2 See CRS Legal Sidebar LSB10537, The Death of Justice Ruth Bader Ginsburg: Initial Considerations for Congress,
by Valerie C. Brannon, Michael John Garcia, and Caitlain Devereaux Lewis.
3 See infra “Supreme Court 2019-2020 Term Review of the EENR Decisions.”
4 See infra “Supreme Court 2020-2021 Term Preview of EENR Cases.”
5 The primary means of petitioning the Supreme Court for review of a lower court decision is seeking a writ of
certiorari. Supreme Court Procedures: Writs of Certiorari, ADMIN. OFF. OF THE U.S. COURTS,
https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-
resources/supreme-1 (last visited Feb. 2, 2021). The Supreme Court has exclusive original jurisdiction over disputes
between state governments, which are brought to the Court through a bill of complaint. U.S. CONST. art. III, § 2, cl. 2;
28 U.S.C. § 1251(a).
6 See infra.
7 See Jeremy P. Jacobs and Pamela King, How the Supreme Court Could Upend Biden’s Green Agenda, GREENWIRE
(Jan. 12, 2021), https://www.eenews.net/greenwire/2021/01/12/stories/1063722333; Ellen M. Gilmer, Trump Leaves
Unfinished Business in Environmental Litigation, BLOOMBERG LAW (Nov. 7, 2020),
https://news.bloomberglaw.com/environment-and-energy/trump-leaves-unfinished-business-in-environmental-
litigation.
8 The Senate confirmed former Seventh Circuit Judge Barrett on October 26, 2020. PN2252, Amy Coney Barrett—
Supreme Court of the United States, 116th Cong. (Oct. 26, 2020) (confirmed by the Senate by 52 – 48),
https://www.congress.gov/nomination/116th-congress/2252. Justice Barrett took the judicial oath on October 27, 2020.
Press Release, Supreme Court of the United States, Judicial Oath Ceremony: The Honorable Amy Coney Barrett (Oct.
27, 2020), https://www.supremecourt.gov/publicinfo/press/oath/oath_barrett.aspx.
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Supreme Court Preview of Environmental Law Cases and Review of Rulings

jurisdiction will likely align with the conservative Justices on the Supreme Court when reviewing
cases involving EENR-related issues.9
This report reviews some of the major EENR decisions10 from the Supreme Court’s 2019-2020
term and previews the legal disputes and arguments in EENR cases and petitions for certiorari in
the 2020-2021 term. The report also highlights the broader implications of these decisions and
cases for Congress.
Supreme Court 2019-2020 Term Review of the
EENR Decisions
Clean Water Act: County of Maui v. Hawaii Wildlife Fund11
In one of its major environmental rulings of the 2019-2020 term, the Supreme Court addressed
the scope of the CWA’s applicability to pollutant discharges that migrate through groundwater to
regulated navigable surface waters.12 In County of Maui v. Hawaii Wildlife Fund, the Court held
that the CWA requires a permit for a direct discharge or the “functional equivalent of a direct
discharge” of pollutants from a point source into navigable waters.13 The 6-3 majority in Maui
introduced a new multi-factor test for determining whether indirect discharges are the “functional
equivalent” of a direct discharge.14
Background: The CWA prohibits any “discharge” or “addition” “of any pollutant” “to navigable
waters” “from any point source” without a permit.15 The CWA defines “pollutant” broadly to
include toxins such as “sewage” and “radioactive waste,” as well as more common elements such

9 See, e.g., Beth Gardiner, With Justice Barrett, a Tectonic Court Shift on the Environment, YALE ENV’T 360 (Oct. 26,
2020), https://e360.yale.edu/features/with-justice-barrett-a-tectonic-court-shift-on-the-environment; Ann Carlson et al.,
Climate Policymaking in the Shadow of the Supreme Court, LEGAL PLANET (Oct. 27, 2020), https://legal-
planet.org/2020/10/27/climate-policymaking-in-the-shadow-of-the-supreme-court/; Jody Freeman, What Amy Coney
Barrett’s Confirmation Will Mean for Joe Biden’s Climate Plan, VOX (Oct. 26, 2020); David LaRoss, Attorneys See
Supreme Court Losses Looming for Environmentalists, INSIDEEPA.COM (Oct. 20, 2020), https://insideepa.com/daily-
news/attorneys-see-supreme-court-losses-looming-environmentalists; Jennifer Hijazi et al., Carbon Regulations Could
Face Era of Scrutiny Under Barrett, E&E NEWS (Sept. 28, 2020),
https://www.eenews.net/climatewire/stories/1063714841/. For an in-depth discussion of Justice Barrett’s jurisprudence,
see CRS Report R46562, Judge Amy Coney Barrett: Her Jurisprudence and Potential Impact on the Supreme Court,
coordinated by Valerie C. Brannon, Michael John Garcia, and Caitlain Devereaux Lewis.
10 In the 2019-2020 term, the Supreme Court issued rulings related to administrative law that implicated issues
associated with judicial review of agency action that may arise in future challenges to environmental regulation. For
example, the Court held in Department of Homeland Security [DHS] v. Regents of the University of California that
DHS’s rescission of the Deferred Action for Childhood Arrivals (DACA) program violated the Administrative
Procedure Act in part because the agency failed to consider how DACA recipients and those connected to them relied
on the program. Dep’t of Homeland Security v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1913-15 (2020). This
ruling suggests that the Court may apply closer scrutiny to agency decisions that affect reliance on environmental
regulations and guidance. For a more in-depth discussion of the Regents decision, see CRS Legal Sidebar LSB10497,
Supreme Court: DACA Rescission Violated the APA, by Ben Harrington.
11 Linda Tsang, CRS Legislative Attorney, authored this section of the report.
12 Cnty. of Maui v. Haw. Wildlife Fund, 140 S. Ct. 1462 (2020).
13 Id. at 1477.
14 Id. at 1476-77.
15 33 U.S.C. §§ 1311(a); 1362(12).
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Supreme Court Preview of Environmental Law Cases and Review of Rulings

as “rock, sand, cellar dirt,” and “heat.”16 The act defines navigable waters as “waters of the
United States”17 and a “point source” as ‘‘any discernible, confined and discrete conveyance,
including . . . any pipe, ditch, channel, [or] tunnel.”18
The CWA allows certain pollutant discharges if authorized by a CWA permit issued under the
National Pollutant Discharge Elimination System (NPDES).19 CWA Section 402 requires point
source dischargers to obtain NPDES permits, which set pollution limits—known as effluent
limits—on the type and quantity of pollutants that dischargers can release into navigable waters.20
The CWA does not require NPDES permits for nonpoint source discharges. Nonpoint source
pollution is regulated through state programs under CWA Section 319 and other state and federal
laws.21
Maui and other citizen suits22 have sought to apply NPDES permitting requirements to point
source pollutant discharges that migrate through groundwater to navigable waters. In Maui, the
County of Maui’s (County’s) Lahaina Wastewater Reclamation Facility discharged treated
sewage into underground injection wells.23 EPA, the Hawaii Department of Health, and others
conducted a tracer dye study in which they injected a dye into the wells to see if and when the dye
would appear in the ocean.24 The study concluded that 64% of the wells’ treated sewage effluent
migrated through groundwater to the Pacific Ocean.25 While conceding that the wells were point
sources, the County argued that the point source must “convey the pollutants directly into the
navigable water” to be regulated under the CWA.26 Because the wells discharged to the Pacific
Ocean via groundwater, the County contended that it was not a point source discharger required
to obtain an NPDES permit under Section 402 the CWA.27
The U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) disagreed, affirming the district
court’s decision that the County had violated the CWA by discharging pollutants without an
NPDES permit.28 The Ninth Circuit concluded that the pollutants were “fairly traceable” from the
point source (wells) to navigable waters such that the discharge through groundwater was the

16 Id. § 1362(6).
17 Id. § 1362(7). For more information regarding the definition of “waters of the United States,” see CRS Report
R44585, Evolution of the Meaning of “Waters of the United States” in the Clean Water Act, by Stephen P. Mulligan.
18 33 U.S.C. § 1362(14).
19 Id. § 1342.
20 Id.
21 Id. § 1329. Other federal statutes that address nonpoint source pollution include the Safe Drinking Water Act, which
requires EPA to develop minimum requirements to prevent injection wells from contaminating underground sources of
drinking water, 42 U.S.C. § 300h-1; the Coastal Zone Act Reauthorization Amendments of 1990, which addresses
coastal nonpoint source pollution, 16 U.S.C. § 1455b; the Resource Conservation and Recovery Act (RCRA), which
addresses releases into groundwater from solid waste units, 42 U.S.C. § 6903(3) (regulating the “disposal,” including
discharge “into any waters, including ground waters”); and CERCLA, which governs the control and remediation of
groundwater pollution, id. § 9601(8) (regulating discharge into the “environment,” including discharges into “ground
water”).
22 CWA Section 505 grants “citizens” the right to bring civil actions against any person that allegedly violates effluent
standards or limitations. 33 U.S.C. § 1365.
23 Haw. Wildlife Fund v. Cnty. of Maui, 886 F.3d 737, 758 (9th Cir. 2018), vacated, 140 S. Ct. 1462 (2020).
24 Id. at 737-38
25 Id.
26 Id. at 762.
27 Id.
28 Id. at 763.
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“functional equivalent of a discharge into navigable waters.”29 In 2019, the Supreme Court
granted review of the Ninth Circuit’s decision to determine “whether the CWA requires a permit
when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint
source, such as groundwater.”30
Supreme Court’s Decision: In a 6-3 ruling, the Supreme Court vacated the Ninth Circuit
decision, rejecting the “fairly traceable” permitting test as well as other tests proposed by litigants
and the government to determine whether an indirect discharge to navigable waters requires a
NPDES permit.31 Justice Breyer delivered the opinion of the Court, joined by Chief Justice
Roberts and Justices Ginsburg, Sotomayor, Kagan, and Kavanaugh. In his majority opinion,
Justice Breyer relied on the CWA’s statutory context and purpose of the statutory phrase “from
any point source” to strike a middle ground between the Ninth Circuit’s “fairly traceable”
interpretation and the total exclusion of all discharges through groundwater proposed by the
County, the federal government, and dissents from Justices Thomas and Alito.32
The majority concluded that the various interpretations of the CWA’s permitting applicability
were inconsistent with Congress’s intent to provide sufficient federal authority to regulate
discharges of “identifiable sources” of pollutants into navigable waters while preserving the
states’ authority over groundwater discharges.33 The majority rejected the Ninth Circuit’s and the
environmental groups’ “fairly traceable” and “proximate cause” standards, reasoning that such a
broad interpretation would require a NPDES permit for highly diluted discharges that reach
navigable waters many years after their release from the point source.34 At the same time, the
majority refused to adopt the County’s and the federal government’s narrow interpretation that
would have categorically precluded jurisdiction over discharges to groundwater.35 That
interpretation, the majority reasoned, would open a “massive loophole in the permitting scheme”
by allowing point sources to discharge pollutants into groundwater a short distance from
navigable waters without a permit.36
To bridge these “extreme” interpretations, the majority created a new test for determining, on a
case-by-case basis, when a discharge requires a NPDES permit and outlined various factors to
consider in making such decisions.37 The majority held that the CWA requires a NPDES permit
for a direct discharge of pollutants or the “functional equivalent of a direct discharge” from a
point source of pollution into navigable waters.38 The majority explained that “[w]hether
pollutants that arrive at navigable waters after traveling through groundwater are ‘from’ a point
source depends upon how similar to (or different from) the particular discharge is to a direct

29 Id. at 765.
30 Haw. Wildlife Fund v. Cnty. of Maui, 886 F.3d 737 (9th Cir. 2018), cert. granted, 139 S. Ct. 1164 (U.S. Feb. 19,
2019) (No. 18-260).
31 Cnty. of Maui v. Haw. Wildlife Fund, 140 S. Ct. 1462, 1477-78 (2020).
32 Id. at 1469-70.
33 Id. at 1470-77.
34 Id. at 1470-73.
35 Id. at 1473-75.
36 Id. at 1473-76.
37 Id. at 1476-77.
38 Id. at 1476.
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discharge.”39 While rejecting the Ninth Circuit’s “fairly traceable” standard,40 the majority
appeared to echo the Ninth Circuit’s view that such discharges must be “the functional
equivalent” of a discharge directly into navigable waters.
The majority acknowledged that “a more absolute position . . . may be easier to administer” than
the “functional equivalent” test but noted that “there are too many potentially relevant factors
applicable to factually different cases . . . to use more specific language.”41 The majority
highlighted that the two “most important factors” in making a functional equivalent determination
will likely be (1) the distance pollution must travel to reach navigable waters, and (2) pollutant
transit time to navigable waters.42 However, the Court noted that, depending on the
circumstances, other factors may need to be considered, including the material the pollutant
travels through, dilution or chemical changes to the pollutant as it travels, the amount of the
pollutant entering the navigable waters, how and where the pollutant enters the navigable waters,
and the degree to which the pollution has “maintained its specific identity” at the point it enters
navigable waters.43
For further guidance in administering the new test, the majority pointed to the courts and EPA.
The majority noted that the courts can “provide guidance through decisions in individual cases,”
and EPA can “provide administrative guidance (within statutory boundaries),” through permits or
“general rules.”44 To address concerns that such a test could greatly expand permitting
requirements, the majority noted that EPA has been administering this permitting provision “for
over 30 years . . . [and] we have seen no evidence of unmanageable expansion” and that various
permitting techniques (e.g., issuing a NPDES general permit for a category of dischargers) and
the courts’ discretion in applying the CWA’s penalty provisions can be used to assuage such
concerns.45 The Court vacated and remanded the Ninth Circuit decision to determine whether the
Lahaina Wastewater Reclamation Facility needs a NPDES permit under the new “functional
equivalent” test.46
Concurring and Dissenting Opinions: Justice Kavanaugh joined Justice Breyer’s opinion “in
full,” emphasizing in his concurrence that the majority’s interpretation “adheres” to Justice
Scalia’s plurality opinion in Rapanos v. United States.47 In Rapanos, Justice Scalia stated that the
CWA “does not forbid the ‘addition of any pollutant directly to navigable waters from any point
source,’ but rather the ‘addition of any pollutant to navigable waters.’”48 Justice Kavanaugh noted
that the CWA “does not establish a bright-line test regarding when a pollutant may be considered
to have come ‘from’ a point source. The source of the vagueness is Congress’ statutory text, not

39 See id. (concluding that “an addition [of a pollutant to navigable waters] falls within the statutory requirement that it
be ‘from any point source’ when a point source directly deposits pollutants into navigable waters, or when the
discharge reaches the same result through roughly similar means.”)
40 Id. at 1473.
41 Id. at 1476-77.
42 Id.
43 Id.
44 Id. at 1477.
45 Id.
46 Id. at 1478.
47 Id. at 1478-79 (Kavanaugh, J., concurring).
48 Rapanos v. United States, 547 U.S. 715, 743 (2006) (quoting 33 U.S.C. § 1362(12)(A) (alteration in original)).
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the Court’s opinion. The Court’s opinion seeks to translate the vague statutory text into more
concrete guidance.”49
Justice Thomas dissented, joined by Justice Gorsuch, and Justice Alito issued his own dissent.
Both dissents would require a permit only when a point source discharges pollutants directly into
navigable waters.”50 Justice Thomas noted that the majority “focuses on the word ‘from,’ but the
most helpful word is ‘addition.’ That word, together with ‘to’ and ‘from,’ limits the meaning of
‘discharge’ to the augmentation of navigable waters.” Justice Alito argued that limiting the CWA
to direct discharges is “consistent with the statutory language and better fits the overall scheme of
the Clean Water Act.”51 He explained that Congress decided to treat “readily identifiable” point
source pollution, which are managed by uniform federal regulation, differently from non-point
pollution (such as pollution conveyed by groundwater), which is “better suited to individualized
local solutions.”52
Both dissents identified the “practical problems” in implementing the majority’s “functional
equivalent” test.53 Justice Alito criticized the majority’s test as “a rule that provides no clear
guidance and invites arbitrary and inconsistent application.”54
Considerations for Congress: In the aftermath of Maui, EPA, states, regulated entities, and the
courts are faced with interpreting, implementing, and enforcing the “functional equivalent” test
for indirect point source discharges. At a congressional oversight hearing in May 2020, the EPA
Administrator testified that the test may be “difficult” to implement.55
On December 10, 2020, EPA released for public comment a draft guidance on applying the Maui
decision and its “functional equivalent” test for pollutant discharges that travel through
groundwater before reaching navigable waters.56 The draft guidance emphasizes that a “functional
equivalent” analysis is required only if the facility owner or operator or NPDES permitting
authority determines that there is or will be “an actual discharge of a pollutant to a water of the
United States . . . from a point source.”57 For such discharges, EPA explains that a “functional
equivalent” evaluation would examine the factors set forth in the Maui decision, as well as an

49 Maui, 140 S. Ct. at 1478 (Kavanaugh, J., concurring).
50 Id. at 1479 (Thomas, J., dissenting) (noting that the majority “ultimately does little to explain how functionally
equivalent an indirect discharge must be to require a permit”); id. at 1486 (Alito, J., dissenting) (interpreting the CWA
to require a permit “when a pollutant is discharged directly from a point source to navigable waters”).
51 Id. at 1488 (Alito, J., dissenting).
52 Id. at 1488-89.
53 See, e.g., id. at 1481 (Thomas, J., dissenting) (holding that a CWA permit “is required only when a point source
discharges pollutants directly into navigable waters”); id. at 1486 (Alito, J., dissenting) (interpreting the CWA to
require a permit “when a pollutant is discharged directly from a point source to navigable waters”).
54 Id. at 1483 (Alito, J., dissenting) (“Entities like water treatment authorities that need to know whether they must get a
permit are left to guess how this nebulous standard will be applied. Regulators are given the discretion, at least in the
first instance, to make of this standard what they will. And the lower courts? The Court’s advice, in essence, is: ‘That’s
your problem. Muddle through as best you can.’”).
55 Oversight of the Environmental Protection Agency Before the S. Comm. on Env’t & Pub. Works, 116th Cong. (2020),
https://www.epw.senate.gov/public/index.cfm/2020/5/oversight-of-the-environmental-protection-agency.
56 Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section
402 National Pollutant Discharge Elimination System Permit Program, 85 Fed. Reg. 79,489 (Dec. 10, 2020).
57 Draft Guidance Memorandum from David P. Ross, Asst. Admin. EPA Office of Water on Applying the Supreme
Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant
Discharge Elimination System Permit Program 3-6 (Dec. 4, 2020), https://www.epa.gov/sites/production/files/2020-
12/documents/draft_ow_maui_guidance_document_-_12.2020_-_epa-hq-ow-2020-0673.pdf [hereinafter Draft Maui
Guidance].
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additional factor—the system design and performance of the facility that releases the pollutant.58
The draft guidance notes that if the pollutant composition or concentration that ultimately reaches
navigable waters is “different” from its initial discharge, it might not be the “functional
equivalent” of a direct discharge, thus not requiring an NPDES permit.59 The Biden
Administration may consider changes to the draft guidance prior to releasing it to the regulated
community and permitting authorities.
Various commentators agree that the “functional equivalent” test will likely increase litigation and
may result in a patchwork of conflicting judicial decisions that fail to provide consistent guidance
to the states or regulated entities.60 Ongoing litigation, including the remanded Maui case, will
need to address how to apply the “functional equivalent” test to unforeseeable discharges from
point sources such as pipeline ruptures and leaking underground wells and coal ash storage
ponds.61 Despite the Supreme Court’s reassurance that EPA and the courts can prevent a
significant expansion of the NPDES permitting requirements, some stakeholders are concerned
that previously unpermitted activities, including recycled water, groundwater recharge, manure
management, and wetland projects, would require CWA permits under the new test.62 In its draft
guidance, EPA anticipates that the need for NSPS permits for point source discharges of
pollutants that reach navigable waters via groundwater “will continue to be a small percentage of
the overall number of NPDES permits.”63
Other commentators fear that the new test will lead to years of litigation over the meaning and
scope of a “functional equivalent” discharge similar to the prolonged litigation and uncertainty
that resulted from the Supreme Court’s 2006 case, Rapanos v. United States.64 In Rapanos, the
justices split 4-4-1 on the proper test for determining which surface waters qualify as “waters of
the United States” subject to the CWA.65 Fourteen years after Rapanos, EPA and stakeholders
continue to litigate and debate the scope of “waters of the United States” as used in the CWA.66
Congress could consider legislative options to clarify the scope of the CWA over indirect
pollutant discharges or the applicability of NPDES permitting requirements for different

58 Id. at 6-8.
59 Id. at 6.
60 See Alejandro E. Camacho and Melissa Kelly, The Shape of Water After County of Maui v. Hawaii Wildlife Fund,
THE REGUL. REV. (July 28, 2020) (noting that “in the wake of the [Maui] decision, the courts and the U.S.
Environmental Protection Agency (EPA) will almost certainly continue their decades-long interpretive tussle”),
https://www.theregreview.org/2020/07/28/camacho-kelly-shape-water-after-county-maui/; Pamela King, Roberts’
Court Finds the Middle in High-stakes Enviro Term, E&E NEWS (July 13, 2020) (noting that “lower courts are going to
be wrestling with this for quite some time”).
61 See, e.g., Order, Prairie Rivers Network v. Dynegy Midwest Generation at 1-2, No. 18-3644 (7th Cir. Oct. 2, 2020)
(reviewing a district court decision dismissing the plaintiff’s allegations that a retired coal power plant violated the
CWA when pollutants from coal ash storage ponds leaked into groundwater and reached navigable waters); Upstate
Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018) (holding that the gasoline discharges
from a ruptured pipeline into groundwater violated the CWA because there was a “direct hydrologic connection”
between the polluted groundwater and navigable waters), vacated, 140 S. Ct. 2736 (2020).
62 Davina Pujari & Sean G. Herman, Groundwater Discharges Under the Clean Water Act, WATERWORLD (Aug. 13,
2020), https://www.waterworld.com/wastewater/article/14180305/groundwater-discharges-under-the-clean-water-act.
63 Draft Maui Guidance, at 6.
64 Davina Pujari et al., Breaking Precedent: SCOTUS in the Midst of a Pandemic, 50 ENV’T L. REP. 10787, 10796-97
(Oct. 2020).
65 Rapanos v. United States, 547 U.S. 715 (2006).
66 For discussion of the litigation history of “waters of the United States,” see CRS Report R44585, Evolution of the
Meaning of “Waters of the United States” in the Clean Water Act, by Stephen P. Mulligan.
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categories of indirect discharges. Congress could also use its oversight authority67 to examine
EPA’s efforts to implement and enforce the “functional equivalent” test or direct EPA to report to
Congress on related actions or interpretations as it has done in the past. For example, in March
2018, the House and Senate Appropriations Committees’ explanatory statement for the
Consolidated Appropriations Act of 2018 “encourage[d] the [EPA] to consider whether it is
appropriate to promulgate a rule to clarify that releases of pollutants through groundwater are not
subject to regulation as point sources under the CWA.”68 The Committees directed EPA to brief
the committees about its findings and any plans for future rulemaking.69 In April 2019, EPA
issued a guidance document providing its interpretation that point source pollutant discharges to
groundwater were not subject to the CWA.70 However, a year later, the Supreme Court in Maui
did not defer to and ultimately rejected EPA’s 2019 interpretive guidance that categorically
excluded indirect discharges from the CWA permitting program.
Comprehensive Environmental Response, Compensation, and
Liability Act: Atlantic Richfield Co. v. Christian71
In Atlantic Richfield v. Christian, the Supreme Court addressed a complex question regarding the
CERCLA limitations on how parties may challenge the scope of a plan to remediate hazardous
waste contamination.72 The Court held that owners of property located within a Superfund site
may not pursue restoration of their property in a manner that conflicts with a plan approved by
the U.S. Environmental Protection Agency (EPA) without EPA’s approval. The Court also held
that litigants can, subject to certain limitations, assert state-law claims that challenge an EPA-
approved CERCLA cleanup plan in state courts.
Background: Congress enacted CERCLA to clean up sites contaminated with hazardous
substances, pollutants, or contaminants across the United States and to hold the parties connected
to those sites responsible for cleanup costs.73 EPA administers the Superfund program and
maintains the National Priorities List (NPL), a prioritized list of some of the most hazardous
sites.74 EPA may compel certain entities, which the statute refers to as both “potentially
responsible parties” (PRPs) and “covered persons,” to perform or pay for the cleanup of
contaminated sites.75 Section 107 of CERCLA identifies four categories of PRPs that could be

67 For example, on April 18, 2018, the Senate Committee on Environment and Public Works held an oversight hearing
that examined whether pollutant releases through groundwater should be regulated under CWA or states’ jurisdiction.
The Appropriate Role of States and the Federal Government in Protecting Groundwater: Hearing Before the S. Comm.
on Env’t & Pub. Works, 115 Cong. 1-2 (2018) (statement of Sen. John Barrasso, Chairman, S. Comm. on Env’t & Pub.
Works).
68 H. Comm. on Approps., 115th Cong., Rep. on H.R. 1625/Public Law 115–141, Consolidated Appropriations Act,
2018 1,167 (Comm. Print 2018).
69 Id.
70 Interpretive Statement on Application of the Clean Water Act National Pollutant Discharge Elimination System
Program to Releases of Pollutants From a Point Source to Groundwater, 84 Fed. Reg. 16,810 (Apr. 23, 2019).
71 Kate R. Bowers, CRS Legislative Attorney, authored this section of the report.
72 Atlantic Richfield v. Christian, 140 S. Ct. 1335 (2020). CERCLA is also referred to as the Superfund program.
Superfund: CERCLA Overview, EPA, https://www.epa.gov/superfund/superfund-cercla-overview (last visited Feb. 2,
2021).
73 42 U.S.C. §§ 9601-75.
74 Superfund: National Priorities List (NPL), U.S. ENV’T PROT. AGENCY, https://www.epa.gov/superfund/superfund-
national-priorities-list-npl (last visited Feb. 2, 2021).
75 42 U.S.C. § 9607(a).
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liable for the costs of response actions.76 One such category includes the owner of a “facility,”
which is defined to include “any site or area where a hazardous substance has been deposited,
stored, disposed of, or placed, or otherwise come to be located.”77
Under CERCLA’s process for developing a cleanup plan, EPA conducts a remedial investigation
and feasibility study (RI/FS), or orders a PRP to conduct one, to evaluate site conditions and
remedy options before the agency selects a plan.78 CERCLA also provides several avenues for
stakeholder involvement in developing cleanup plans,79 and generally requires that the remedial
action comply with “legally applicable or relevant and appropriate” standards under state law.80
Atlantic Richfield involved the cleanup of a Superfund site at the former Anaconda copper smelter
in Butte, Montana. In 1983, a 300-square-mile area around the smelter was among the first sites
to be designated a Superfund NPL site.81 Over the past 35 years, EPA has managed an extensive
and ongoing cleanup at the site, which is being carried out by Atlantic Richfield, the site’s current
owner.82 In 2008, a group of 98 property owners within the Anaconda Superfund site sued
Atlantic Richfield in Montana state court, asserting state common-law claims for trespass,
nuisance, and strict liability.83 Among the forms of relief sought by the landowners were
“restoration damages,” which, under Montana law, would have to be used for restoration of the
property.84 To support their claim for restoration damages, the landowners proposed a plan that
included removing a greater depth of soil from residential yards, setting a more stringent arsenic
soil cleanup threshold level, installing an underground permeable barrier, and other remedies
beyond those selected by EPA.85
Atlantic Richfield argued that CERCLA Sections 113(b) and 113(h) barred the landowners’ claim
for restoration damages. Section 113(b) of the statute gives federal district courts “exclusive
original jurisdiction over all controversies arising under [CERCLA].”86 Section 113(h) provides
that “[n]o Federal court shall have jurisdiction under Federal law . . . to review any challenges to
removal or remedial action” except in several limited circumstances.87 The company also alleged
that the landowners were barred by CERCLA Section 122(e)(6) from implementing their
proposed cleanup plan. Section 122(e)(6) provides that, once the remedial investigation and
feasibility study has begun for an NPL-listed site, “no potentially responsible party may
undertake any remedial action” at the site without EPA’s approval.88
The Montana trial court granted judgment for the landowners on the restoration damages issue,
and the Montana Supreme Court affirmed.89 The Supreme Court granted review to consider three

76 Id. § 9607.
77 Id. § 9601(9).
78 40 C.F.R. § 300.430.
79 42 U.S.C. §§ 9613(k), 9621(f).
80 Id. § 9621(d)(2)(A).
81 Atlantic Richfield v. Christian, 140 S. Ct. 1335, 1347 (2020).
82 Id.
83 Id.
84 Id.
85 Id. at 1347-48.
86 42 U.S.C. § 9613(b).
87 Id. § 9613(h).
88 Id. § 9622(e)(6).
89 Atlantic Richfield Co. v. Mt. Second Judicial Dist. Ct., 408 P.3d 515 (Mt. 2017).
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Supreme Court Preview of Environmental Law Cases and Review of Rulings

questions: (1) whether CERCLA Section 113 “strips the Montana courts of jurisdiction over the
landowners’ claim for restoration damages”; (2) whether Section 122(e)(6) barred the
landowners’ claim because the landowners are PRPs who cannot implement restoration plans
without EPA’s consent; and (3) whether CERCLA preempted the landowners’ restoration
remedy.90
Supreme Court’s Decision: In an opinion authored by Chief Justice Roberts, the Court affirmed
in part and vacated in part the Montana Supreme Court’s judgment, and remanded for further
proceedings.91 Five additional justices joined the majority opinion in its entirety, which held that
the Montana state courts had jurisdiction over the landowners’ restoration damages claim, but that
restoration could not take place without EPA’s approval because the landowners were PRPs and
therefore subject to the requirements of Section 122(e)(6). The Court declined to reach the issue
of whether CERCLA otherwise preempts the landowners’ proposed cleanup plan.92
In a portion of the opinion joined by the entire Court except for Justice Alito, the majority ruled
that Section 113 of CERCLA did not strip the Montana state courts of jurisdiction over the
landowners’ claim.93 Rejecting Atlantic Richfield’s arguments as well as those raised in the
United States’ amicus brief, the Court held that the landowners’ claim for restoration damages
arose under Montana law and not CERCLA, and therefore those claims did not constitute
“controversies arising under” CERCLA for purposes of Section 113(b).94 The Court also
concluded that “[t]here is no textual basis for Atlantic Richfield’s argument that Congress
precluded state courts from hearing a category of cases in § 113(b) by stripping federal courts of
jurisdiction over those cases in § 113(h).”95 As a result, the Court held that the state courts
retained jurisdiction over the landowners’ claim for restoration damages.
As to the Section 122(e)(6) bar to remedial actions not approved by EPA, the Supreme Court
reversed the Montana Supreme Court’s holding.96 Looking to the list of “covered persons” in
Section 107 of CERCLA, the Court ruled that the landowners were PRPs and therefore needed
EPA’s approval for their restoration plan.97 Specifically, the landowners were the “owners” of “a
facility,” which under CERCLA is “any site or area where a hazardous substance [here, arsenic
and lead] . . . has come to be located.”98 According to the Court, landowners retain their PRP
status even if they are not liable for the payment of response costs.99 Otherwise, EPA would be
forced to monitor every property on a Superfund site and even preemptively file lawsuits to
ensure that landowners do not interfere with a cleanup by, for instance, digging up contaminated
soil without notifying EPA.
Concurring and Dissenting Opinions: Justice Alito concurred in part and dissented in part.100
Justice Alito agreed that the landowners could not bring their restoration damages claim without

90 Atlantic Richfield, 140 S. Ct. at 1345, 1357.
91 Id. at 1357.
92 Id.
93 Id. at 1349-52.
94 Id. at 1349-50.
95 Id. at 1350.
96 Id. at 1352.
97 Id.
98 Id.
99 Id. at 1353.
100 Id. at 1357 (Alito, J., concurring in part and dissenting in part).
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EPA’s consent, but did not believe it was necessary to reach the issue of whether state courts have
jurisdiction to hear challenges to EPA-approved cleanup plans.101 He further cautioned that
neither he, nor the parties, nor the majority had succeeded in clearing up the issues surrounding
the relationship between CERCLA Sections 113(b) and (h).102
Justice Gorsuch also wrote a partial concurrence and partial dissent, in which Justice Thomas
joined, agreeing with the majority’s ruling on jurisdiction but disagreeing with its ruling on
Section 122(e)(6).103 Justice Gorsuch would have held that the landowners are not PRPs because
EPA never notified them of their PRP status as required by Section 122(e)(1) and because
CERCLA’s statute of limitations for holding them responsible for cost-recovery actions “has long
since passed.”104 He also expressed concern that an expansive view of federal authority to
regulate landowners’ activity on their own property “would sorely test the reaches of Congress’s
power under the Commerce Clause.”105
Implications for Congress: When Congress amended CERCLA to add Section 113(h), it made
note of the concern that pre-enforcement judicial review of EPA response actions “would lead to
considerable delay in providing cleanups, would increase response costs, and would discourage
settlements and voluntary cleanups.”106 The Supreme Court’s interpretation of Section 113 in
Atlantic Richfield opens the door to some state-law claims that target the scope of an already
agreed-upon cleanup plan. This may result in additional litigation, and litigation at earlier stages
of the cleanup process. The prospect of additional litigation may also affect the substance and
complexity of future settlement negotiations between EPA and PRPs.
Congress has expressed concerns regarding the lengthy timeline for CERCLA cleanups.107 To
limit further delays associated with protracted litigation and settlement negotiations, Congress
could amend CERCLA to clarify the relationship between CERCLA Sections 113(b) and (h) and
specify the scope of federal and state jurisdiction under each subsection. Congress could also
amend Section 122(e)(6) to alter the timeframe during which PRPs are barred from undertaking
remedial actions, or expand the Section 122(e)(6) bar to apply to both NPL-listed and non-NPL
sites.
Justice Gorsuch’s dissent in Atlantic Richfield deserves special mention in light of the changing
composition of the Court. In particular, his narrower reading of CERCLA suggests that he could
be sympathetic in future cases toward states that attempt to impose more stringent environmental
regulations than what is strictly required under federal law. While the Court has not granted
certiorari in any cases that directly present such a discrepancy in federal and state environmental
regulation, there is one pending bill of complaint that implicates a federal-state tension in Section

101 Id.
102 Id. at 1361. Writing for the majority, Chief Justice Roberts responded that it was necessary to decide the
jurisdictional question in order to resolve uncertainty about the forum in which the litigation should continue. Id. at
1349 n.3.
103 Id. at 1361 (Gorsuch, J., concurring in part and dissenting in part).
104 Id. at 1364. The majority, however, concluded that landowners can be PRPs even if they can no longer be held liable
for cleanup costs. Id. at 1352-53.
105 Id. at 1365.
106 S. REP. NO. 99-11, at 58 (1985).
107 See Modernizing the Superfund Cleanup Program: Hearing Before the Subcomm. on Env’t of the H. Comm. on
Energy & Commerce, 115th Cong. 2, 7 (2018) (statements of Rep. Shimkus, Rep. Blackburn); Oversight of the U.S.
Environmental Protection Agency’s Superfund Program: Hearing Before the Subcomm. on Superfund, Waste Mgmt., &
Reg. Oversight of the S. Comm. on Env’t & Pub. Works, 115th Cong. 2 (2017) (statement of Sen. Rounds).
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401 of the CWA,108 and a pending case in the U.S. Court of Appeals for the D.C. Circuit (D.C.
Circuit) regarding California’s ability to set its own limits on tailpipe greenhouse gas (GHG)
emissions.109 Additionally, Justice Gorsuch’s concern about the Commerce Clause’s limitations
on Congress’s power to regulate landowner activities on their own property110 suggests that the
Court could take a greater interest in the intersection of the Commerce Clause and federal
environmental law in future cases.
Finally, plaintiffs in several climate change-related lawsuits against fossil-fuel energy companies
argued that the Court’s rejection of federal jurisdiction under CERCLA in Atlantic Richfield
supports their position that their state-law nuisance claims do not arise under federal law, and
therefore may proceed in state court.111 In October 2020, the Supreme Court granted certiorari in
another climate change nuisance suit to address a question regarding the scope of an appellate
court’s review of a district court’s order removing a case to state court.112 While the question
before the Court in that case is jurisdictional and unrelated to CERCLA, a decision broadening
the scope of review of removal orders may affect which courts—federal or state—adjudicate
climate change liability suits. And ultimately, these suits may present similar questions posed in
Atlantic Richfield regarding the relationship between federal environmental statutes and state
common law.
Mineral Leasing Act: United States Forest Service v. Cowpasture
River Preservation Association113
In United States Forest Service v. Cowpasture River Preservation Association (Cowpasture),114
the Supreme Court tackled a complex web of federal legislation and regulations that ultimately
boiled down to which federal agency has the authority to issue a permit for an infrastructure
project to cross the Appalachian National Scenic Trail (Appalachian Trail or Trail). The Court
found that the U.S. Forest Service (Forest Service) had acted properly when it issued a “special
use” permit for the construction and operation of a subsurface pipeline segment passing under the
Trail. The Court reversed a decision by the U.S. Court of Appeals for the Fourth Circuit (Fourth
Circuit), which had held that the Forest Service lacked statutory authority to issue the permit.
Background: In 2017, the developers of the Atlantic Coast Pipeline—a proposed 604-mile
interstate natural gas pipeline that would run from West Virginia though Virginia to Robeson

108 Montana v. Washington, motion for leave to file a bill of complaint filed (U.S. Jan. 21, 2020) (No. 22O152). See
infra at “Clean Water Act Section 401 Water Quality Certification: Montana v. Washington.”
109 See Union of Concerned Scientists v. Nat’l Hwy. Traffic Safety Admin. No. 19-1230 (D.C. Cir.).
110 See Atlantic Richfield, 140 S. Ct. at 1365 (Gorsuch, J.) (“If [CERCLA] really did grant the federal government the
power to regulate virtually each shovelful of dirt homeowners may dig on their own properties, it would sorely test the
reaches of Congress’s power under the Commerce Clause.”).
111 Plaintiff-Appellee’s Citation of Supplemental Authorities, Rhode Island v. Shell Oil Prods. Co., No. 19-1818, Doc.
No. 00117581373 (1st Cir. Apr. 24, 2020); Plaintiffs-Appellees’ Citation of Supplemental Authorities, Cnty. of San
Mateo v. Chevron Corp., No. 18-15499 , Doc. No. 195 (9th Cir. Apr. 27, 2020); Plaintiffs-Appellants’ Citation of
Supplemental Authorities, City of Oakland v. BP P.L.C., No. 18-16663, Doc. No. 167 (9th Cir. Apr. 24, 2020). The
First and Ninth Circuits upheld state-court jurisdiction, but did not expressly address Atlantic Richfield. Rhode Island v.
Shell Oil Prods. Co., No. 19-1818, 2020 WL 6336000 (1st Cir. Oct. 29, 2020); City of Oakland v. BP PLC, 969 F.3d
895 (9th Cir. 2020); Cnty. of San Mateo v. Chevron Corp., 960 F.3d 586 (9th Cir. 2020).
112 BP p.l.c. v. Mayor & City Council of Baltimore, cert. granted, 220 WL 5847132 (U.S. Oct. 7, 2020) (No. 19-1189).
See also infra at “Climate Change Liability Suits: BP p.l.c. v. Mayor and City Council of Baltimore”.
113 Adam Vann, CRS Legislative Attorney, authored this section of the report.
114 140 S. Ct. 1837 (2020).
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County, North Carolina, near the South Carolina border115—obtained a certificate of public
convenience and necessity from the Federal Energy Regulatory Commission for the project under
Section 7 of the Natural Gas Act.116 The pipeline's developers also needed other federal and state
authorizations for various project segments and characteristics, including permission to construct
and operate a segment of the pipeline that runs approximately 600 feet below the Appalachian
Trail within the federally controlled and managed George Washington National Forest. On
January 23, 2018, the Forest Service granted the pipeline operators a “special use permit” and a
right-of-way to cross the Trail.117 The Cowpasture River Conservation Association and other
conservation organizations filed a legal challenge to the Forest Service’s actions in the Fourth
Circuit shortly thereafter, claiming that the Forest Service’s actions violated the National Forest
Management Act (NMFA), the National Environmental Policy Act (NEPA), and the
Administrative Procedure Act (APA).118
The Fourth Circuit agreed with the conservation organizations, finding that the Forest Service had
failed to consider adequately certain factors as required by the NFMA, NEPA and the APA when
determining whether to issue the special use permit.119 Notably, the court further determined that
the Trail was part of the “National Park System.”120 As a result of that determination, the court
held that the Forest Service lacked authority to grant the special use permit and right-of-way,
because the relevant text of the Mineral Leasing Act of 1920 (MLA) explicitly excludes “lands of
the National Park System” from the definition of “federal lands” through which the Forest
Service may grant a right-of-way.121
Supreme Court’s Decision: The Supreme Court disagreed with the Fourth Circuit’s
interpretation of the MLA as applied to the Trail.122 In a 7-2 opinion authored by Justice Thomas,
the Court evaluated what it referred to as “the interaction of multiple federal laws.”123 The Court
first evaluated the Weeks Act of 1911,124 the authority under which the Hoover Administration
established the Shenandoah National Forest in 1927 and changed its name to the George
Washington National Forest in 1932.125 Congress later established the Appalachian Trail through
the passage of the National Trails System Act (Trails Act) in 1968.126 That statute dictates that the
Appalachian Trail is to be “administered primarily as a footpath by the Secretary of the Interior,
in consultation with the Secretary of Agriculture.”127 The act also empowers the Secretary of the
Interior to establish the location and width of the trails via “rights-of-way” agreements with

115 Atlantic Coast Pipeline Fact Sheet, June 2020, https://atlanticcoastpipeline.com/resources/docs/updated%20one-
pagers/domb003488%20acp%20construction%20fact%20sheet%20v6_06.2020.pdf.
116 15 U.S.C. § 717f.
117 Cowpasture River Preservation Association v. U.S. Forest Service, 911 F.3d 150, 160 (4th Cir. 2018).
118 Id.
119 Id. at 154.
120 Id. at 179.
121 Id. at 181.
122 The Supreme Court’s decision did not address Forest Service compliance with the NMFA, NEPA and the APA
during the decision-making process.
123 Cowpasture, 130 S. Ct. at 1842.
124 Pub. L. 61–435, 36 Stat. 961.
125 Executive Order 5867, George Washington National Forest, Virginia and West Virginia (June 28, 1932).
126 Pub. L. 90-453, 16 U.S.C. § 1241 et seq.
127 Id. at § 1244(a)(1).
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federal, state, and local agencies, as well as private landowners.128 The Secretary of the Interior
has delegated authority over National Trails to either the National Park Service or the Bureau of
Land Management; the Park Service has primary administrative responsibility for the
Appalachian Trail.129
With this framework in mind, the Supreme Court turned to the MLA, which the Forest Service
relied on to grant the Atlantic Coast Pipeline a right-of-way to cross under the Appalachian Trail.
The MLA provides that, among other things, “[r]ights-of-way through any Federal lands may be
granted by the Secretary of the Interior or appropriate agency head for pipeline purposes for the
transportation of oil, natural gas, synthetic liquid or gaseous fuels, or any refined product
produced therefrom.”130 However, the statutory language explicitly excludes “lands in the
National Park System” from the definition of “Federal lands,”131 meaning that the MLA does not
authorize agency heads to grant pipeline rights-of-way across “lands in the National Park
System.” The Forest Service relied on the authority granted by this section of the MLA in
authorizing Atlantic Coast Pipeline's right-of-way underneath the Appalachian Trail, meaning that
the Service concluded that the right-of-way did run through “lands in the National Park System.”
The Supreme Court focused “on the distinction between the lands that the Trail traverses and the
Trail itself, because the lands (not the Trail) are the object of the relevant statutes.”132 The Court
noted that there was no dispute regarding Forest Service jurisdiction over the lands within the
George Washington National Forest at the center of the case.133 The question for the Court,
therefore, was whether the lands associated with the Trail were still subject to Forest Service
jurisdiction. If so, the Forest Service had the authority to issue a right-of-way permit under the
MLA. If, however, the designation of the Trail under the Trails Act and the Secretary of the
Interior's delegation of administrative authority over the Trail to the National Park Service
rendered the Appalachian Trail “land[] in the National Park System,” the MLA would not confer
the authority to grant a right-of-way across the Trail.
The Court held that the Trails Act did not transfer jurisdiction over the land in which the
Appalachian Trail is located.134 According to the Court, the Trails Act directed the Secretary of
the Interior to enter into “right-of-way agreements,” not land transfers, and these right-of-way
agreements do not convert the underlying lands to “lands within the National Park System.”135
The decision explored the legal nature of rights-of-way and easements, pointing out that these
designations generally “grant a non-owner a limited privilege to ‘use the lands of another’” but
that “the grantor of the easement retains ownership over the land itself.”136 The Court
acknowledged that the circumstances were somewhat different in this case, where the federal
government was the owner of both the George Washington National Forest and the Appalachian
Trail, but it found that “the same general principles apply” with respect to different federal

128 Id. at § 1246.
129 See CRS Report R43868, The National Trails System: A Brief Overview, by Mark K. DeSantis and Sandra L.
Johnson, at Table 1.
130 30 U.S.C. § 185.
131 Id.
132 Cowpasture, 130 S. Ct. at 1844.
133 Id. at 1843.
134 Id. at 1844.
135 Id.
136 Id. at 1844-45.
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agencies.137 The Court interpreted the Trails Act’s reference to the granted land interests as
“rights-of-way” as a deliberate choice by the legislature to limit the nature of those property
interests.138 The Court noted that “[t]he fact that Congress chose to speak in terms of rights-of-
way in the Trails Act, rather than in terms of land transfers, reinforces the conclusion that the Park
Service has a limited role over only the Trail, not the lands that the Trail crosses.”139 As a result,
the Court concluded that the authorization did not make the land in question part of the “National
Park System” in which issuance of pipeline rights-of-way is not authorized under the MLA, but
rather “Federal lands” under the jurisdiction of the Forest Service across which a right-of-way
could be granted under the MLA.140
Dissenting Opinion: Justice Sotomayor wrote a dissenting opinion, which was joined by Justice
Kagan. In the dissent, Justice Sotomayor argued that the majority was mistaken in analogizing the
status of the Appalachian Trail as set forth in the Trails Act with easements as they are generally
understood under state law. Instead, after a brief review of the relevant language in the MLA and
the Trails Act discussed supra, Sotomayor wrote that
the only question here is whether parts of the Appalachian Trail are ‘lands’ within the
meaning of those statutes . . . . Those laws, a half century of agency understanding, and
common sense confirm that the Trail is land, land on which generations of people have
walked. Indeed, for 50 years the Federal Government has referred to the Trail as a ‘unit’ of
the National Park System.141
Sotomayor also pointed out that easements are generally land rights conferred by the owner of
real property to a non-owner, but in this case the federal government is the “owner” of both the
National Forest and the Appalachian Trail.142 The dissent took issue with the Court’s effort to
distinguish the Trail from the land it occupies, noting that “the Court does not disclose how the
Park Service could administer the Trail without administering the land that forms it.”143
Implications for Congress: As a result of this decision, the permit issued by the Forest Service
to the Atlantic Coast Pipeline for crossing underneath the Appalachian Trail is valid. Legislators
who oppose the pipeline or others like it could halt progress through new legislation, although it
is worth noting that the Atlantic Coast Pipeline project was cancelled in July 2020.144 In addition,
Congress could amend the statutory framework for authorizing crossings of the Appalachian Trail
and other properties administered by the National Park Service or other aspects of the interstate
pipeline permitting process to clarify whether and by whom such crossings should be permitted in
the future.

137 Id. at 1845.
138 Id.
139 Id. at 1847.
140 Id. at 1850.
141 Id. at 1851.
142 Id. at 1856.
143 Id.
144 Ivan Penn, Atlantic Coast Pipeline Canceled as Delays and Costs Mount, N.Y. TIMES, July 5, 2020.
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Supreme Court 2020-2021 Term Preview of
EENR Cases
The Supreme Court may experience an “ideological” shift in its 2020-2021 term with the passing
of Justice Ginsburg and the beginning of Justice Barrett’s first term sitting on the Court.145 Legal
commentators have noted differences between Justice Barrett’s and Justice Ginsburg’s judicial
philosophies that may affect the Court’s majority views on agency deference, the scope of federal
agencies’ authority to implement EENR statutes, and the justiciability of environmental claims.146
Justice Ginsburg authored or joined several consequential opinions in EENR law cases during her
time on the High Court.147 In Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.,
Justice Ginsburg held that environmental groups met the constitutional standing requirements in
part because they raised “reasonable concerns” that the defendant’s pollutant discharges over the
permitted limits “directly affected” their “recreational, aesthetic, and economic interests.”148
Commentators have noted that while serving on the U.S. Court of Appeals for the Seventh Circuit
(Seventh Circuit), then-Judge Barrett took a narrower view on types of alleged injuries that would
meet standing requirements.149 A stricter view of standing may limit stakeholder lawsuits that
challenge agency actions or seek to enforce pollution limits.150
During her tenure on the Court, Justice Ginsburg also authored or joined opinions related to
EPA’s authority to regulate GHG emissions under the CAA to address climate change-related
claims. In the 2007 landmark environmental case, Massachusetts v. EPA, Justice Ginsburg was
part of a five-Justice majority ruling that EPA has the authority to regulate GHGs from new motor
vehicles as “air pollutants” under the CAA and therefore states could challenge the EPA’s failure
to regulate those emissions adequately.151 In American Electric Power Co. v. Connecticut, Justice
Ginsburg wrote for a unanimous Court that held that EPA had authority to regulate GHGs from

145 See Leah Litman & Melissa Murray, Shifting from a 5-4 to a 6-3 Supreme Court Majority Could Be Seismic, WASH.
POST (Sept. 25, 2020) (noting that “[w]ith six justices cementing a conservative majority, liberal[] [justices] who hope
to prevail on issues that divide along ideological lines will have to persuade Roberts and another of the court’s
conservatives . . . .”), https://www.washingtonpost.com/outlook/trump-ginsburg-conservative-supreme-court-
majority/2020/09/25/17920cd4-fe85-11ea-b555-4d71a9254f4b_story.html.
146 See. e.g., Beth Gardiner, With Justice Barrett, a Tectonic Court Shift on the Environment, YALE ENV’T 360 (Oct. 26,
2020), https://e360.yale.edu/features/with-justice-barrett-a-tectonic-court-shift-on-the-environment; Ann Carlson et al.,
Climate Policymaking in the Shadow of the Supreme Court, LEGAL PLANET (Oct. 27, 2020), https://legal-
planet.org/2020/10/27/climate-policymaking-in-the-shadow-of-the-supreme-court/; Jody Freeman, What Amy Coney
Barrett’s Confirmation Will Mean for Joe Biden’s Climate Plan, VOX (Oct. 26, 2020). For an in-depth discussion of
Justice Barrett’s jurisprudence, see CRS Report R46562, Judge Amy Coney Barrett: Her Jurisprudence and Potential
Impact on the Supreme Court, coordinated by Valerie C. Brannon, Michael John Garcia, and Caitlain Devereaux
Lewis.
147 See CRS Legal Sidebar LSB10537, The Death of Justice Ruth Bader Ginsburg: Initial Considerations for Congress,
by Valerie C. Brannon, Michael John Garcia, and Caitlain Devereaux Lewis.
148 Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 183-85 (2000).
149 See CRS Report R46562, Judge Amy Coney Barrett: Her Jurisprudence and Potential Impact on the Supreme
Court, coordinated by Valerie C. Brannon, Michael John Garcia, and Caitlain Devereaux Lewis, at 33-34 (noting that
then-Judge Barrett’s opinions on the Seventh Circuit indicate an “approach to assessing whether risks of harm
accompany violations of procedural requirements that is more stringent than the approach that other judges have
applied or would have applied.”).
150 See, e.g., Gardiner, supra note 146 (noting that “[l]itigants on issues from water pollution to climate change could
find it harder to get through courtroom doors[]” if the Supreme Court takes a narrow view of standing).
151 Massachusetts v. EPA, 549 U.S. 497, 528-32 (2007).
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stationary sources such as power plants under the CAA, which displaced any federal common law
public nuisance claims seeking carbon dioxide emissions limits for fossil fuel-fired power
plants.152 While noting during her Supreme Court confirmation process that she does not have
“firm views”153 on climate change, Justice Barrett’s judicial philosophy regarding EENR issues
more broadly is unclear. However, her views on the limits of executive agency authority and the
amount of deference given to an agency’s actions could align with other Justices and potentially
narrow an agency’s ability to address climate change and other EENR issues.154
The Court’s 2020-2021 term, which began on October 5, 2020, features several EENR cases
relating to, among other things, the appropriate court to decide climate change liability suits,
states’ competing claims to several interstate rivers, the small refinery exemptions under the
CAA’s renewable fuel standard, the relationship between separate CERCLA provisions for
recouping cleanup costs, and disclosure of agency documents produced during an Endangered
Species Act consultation.155 The Court is also considering whether to review other EENR-related
cases.156
The following sections preview the legal disputes and arguments in several EENR cases of
potential importance and analyzes the potential implications for Congress.
Original Jurisdiction Interstate Water Cases157
In its 2020-2021 term, the Supreme Court has two original jurisdiction cases on its docket
involving states’ competing claims to several interstate rivers.158 In Texas v. New Mexico, the
Court is expected to address the latest dispute in a decades-old case about how to divide the Pecos
River.159 In Florida v. Georgia, the Court is scheduled to hear Florida’s argument that Georgia is
depleting too great a portion of the waters of the Apalachicola-Chattahoochee-Flint (ACF) Rivers
system.160

152 American Electric Power Co. v. Connecticut, 564 U.S. 410, 424-26 (2011) [hereinafter AEP]. For further discussion
of the AEP and Massachusetts v. EPA decisions, see CRS Report R44807, U.S. Climate Change Regulation and
Litigation: Selected Legal Issues, by Linda Tsang.
153 Nomination of Amy Coney Barrett to the U.S. Supreme Court Questions for the Record, Questions from Sen.
Booker at 12 (Oct. 16, 2020),
https://www.judiciary.senate.gov/imo/media/doc/Barrett%20Responses%20to%20QFRs.pdf.
154 See Ann Carlson et al., Climate Policymaking in the Shadow of the Supreme Court, Legal Planet (Oct. 27, 2020),
https://legal-planet.org/2020/10/27/climate-policymaking-in-the-shadow-of-the-supreme-court/ (discussing how the
nondelegation doctrine, which limits Congress’s ability to delegate legislative power, and the major questions doctrine,
which courts have used to limit deference to agency statutory interpretations concerning major political or economic
significance, could limit an agency’s regulatory authority).
155 See infra.
156 See infra.
157 Stephen P. Mulligan, CRS Legislative Attorney, authored this section of the report.
158 While the Supreme Court normally is a court of appellate jurisdiction, the Constitution and a federal statute, 28
U.S.C. § 1251(a), provide the Court with original and exclusive jurisdiction over cases between two or more states.
U.S. CONST. art. III, § 2 cl. 2 (“In all Cases . . . in which a State shall be Party, the Supreme Court shall have original
Jurisdiction.”).
159 See Texas v. New Mexico, No. 22O65 (U.S. 2018).
160 See Florida v. Georgia, No. 142, Orig. (U.S. 2019).
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Texas v. New Mexico
In its first oral argument of the 2020-2021 term, the Supreme Court heard Texas v. New Mexico, a
long-running case that has been before the Court since 1974.161 The litigation concerns how to
share the waters of the Pecos River—a notoriously unpredictable waterbody that is frequently dry
and derives much of its annual flow from flash floods.162 The Pecos River originates in north-
central New Mexico and flows south into Texas, where it joins the Rio Grande163 (Figure 1).
Figure 1. Pecos River

Source: Texas’s Mot. for Review of River Master’s Final Determination, Texas v. New Mexico, No. 22O65 (U.S.
Dec. 17, 2018).
Background: In 1948, Texas and New Mexico signed an interstate compact, the Pecos River
Compact, intended to equitably divide the river’s waters.164 Congress, which has constitutional
authority over interstate compacts,165 approved the compact the next year.166 Article III of the
Pecos River Compact provides that New Mexico may “not deplete by man’s activities167 the flow

161 See Texas v. New Mexico, 421 U.S. 927 (1975) (granting leave to file bill of complaint). Texas and New Mexico
are also engaged in another original jurisdiction case before the Supreme Court, which concerns competing water rights
to a portion of the Rio Grande in New Mexico. See Texas v. New Mexico & Colorado, No. 141, Original (U.S. Jan. 8,
2013). Colorado is also a party to the Rio Grande case.
162 See Texas v. New Mexico, 462 U.S. 554, 557 n.2 (1983) [hereinafter 1983 Texas].
163 Id. at 556-57.
164 63 Stat. 159 (1949) [hereinafter Pecos River Compact].
165 U.S CONST. art. I, § 10, cl. 3 (“No State shall, without the Consent of Congress . . . enter into any Agreement or
Compact with another State . . . .”).
166 Pecos River Compact, Act of June 9, 1949, 63 Stat. 159.
167 The compact defines “deplete by man’s activities” to mean “to diminish the stream flow of the Pecos River at any
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of the Pecos River at the [New Mexico-Texas] state line below an amount which will give to
Texas a quantity of water equivalent to that available to Texas under the 1947 condition.”168 The
Pecos River Compact defines the provision’s key phrase—1947 condition—by incorporating the
conditions described in an engineering advisory committee’s report.169 But New Mexico and
Texas soon realized that the hydrological data used in that report were faulty.170 When the two
states could not agree on how to fix the errors, Texas sued New Mexico in 1974, arguing that
New Mexico was over-depleting the Pecos.171
In a series of decisions in the 1980s, the Supreme Court held that New Mexico had overconsumed
the Pecos River and that it must deliver additional water annually to make up for prior
shortfalls.172 The Court also appointed a River Master173 to calculate future water deliveries and
determine whether there were shortfalls or surpluses.174 In a 1988 amended decree, the Court
defined the procedures for the River Master to make calculations and decisions.175
Although the Supreme Court maintained jurisdiction over the case in the decades that followed,
the litigation was largely dormant until 2014, when Tropical Storm Odile brought heavy rainfall
to the region.176 After stormwater filled Texas’s main reservoir on the Pecos River,177 Texas asked
New Mexico to store Texas’ portion of the river’s flows until it regained reservoir capacity.178
New Mexico agreed to store water at an upstream project within its borders, Brantley
Reservoir.179 The U.S. Bureau of Reclamation (Reclamation) owns and operates Brantley
Reservoir.180 Reclamation first stored the excess water to prevent flooding, but it later informed
the states that, once flood concerns abated, it could not store water for Texas without a contract.181

given point as the result of beneficial consumptive uses of water within the Pecos River Basin above such point. For the
purposes of this Compact it does not include the diminution of such flow by encroachment of salt cedars or other like
growth, or by deterioration of the channel of the stream.” Pecos River Compact, supra note 164, art. II(e).
168 Id. art. III(a).
169 Id. art. II(g).
170 Texas v. New Mexico, 446 U.S. 540, 541 (1980) [hereinafter 1980 Texas].
171 See 1983 Texas, 462 U.S. at 562 (describing Texas’s allegations in its Bill of Complaint).
172 Texas v. New Mexico, 482 U.S. 124, 128 & n.5 (1987) [hereinafter 1987 Texas]. See also 1980 Texas, 446 U.S. at
540 (adopting the Special Master’s report on the meaning of the “1947 condition”); 1983 Texas, 462 U.S. at 571
(declining to reform the Pecos Rivers Commission created by the Pecos River Compact and continuing to exercise
ongoing jurisdiction over the dispute between Texas and New Mexico).
173 A river master is an official appointed by the Supreme Court to oversee enforcement of interstate water decrees and
aid in resolution of disputes. See, e.g., Kansas v. Colorado, 543 U.S. 86, 92 (2004) (discussing circumstances in which
appointments of a river master are appropriate); New Jersey v. New York, 347 U.S. 995, 1001 (1954) (appointing
Delaware River Master).
174 1987 Texas, 482 U.S. at 134-35.
175 See Texas v. New Mexico, 485 U.S. 388 (1988) [hereinafter 1988 Texas].
176 Texas’s Motion for Review of River Master’s Final Determination at 7, Texas v. New Mexico, No. 22O65 (U.S.
Dec. 17, 2018) [hereinafter Texas Motion for Review].
177 Id.; Brief for the United States as Amicus Curiae at 7, Texas v. New Mexico, No. 22O65 (U.S. Dec. 23, 2019)
[hereinafter U.S. Amicus Brief, Texas v. New Mexico].
178 U.S. Amicus Brief, Texas v. New Mexico, supra note 177, at 8.
179 See id.
180 See id. See also Brantley Dam, U.S. BUREAU OF RECLAMATION (last visited Feb. 2, 2021),
https://www.usbr.gov/projects/index.php?id=28.
181 See U.S. Amicus Brief, Texas v. New Mexico, supra note 177, at 10-11. See also 43 U.S.C. § 523 (authorizing the
Secretary of the Interior to contract for storage and delivery of surplus water conserved by a Reclamation project
beyond the project’s requirements).
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Texas did not sign a water storage contract, and Reclamation began releasing water in the summer
of 2015.182
During the total time Reclamation stored excess water at Brantley Reservoir, more than 21,000
acre-feet of water evaporated before being released downstream.183 The dispute at the Supreme
Court concerns which state should be deemed to have used the water lost to evaporation for
purposes of the Pecos River Compact’s water-sharing formula. The River Master concluded that
New Mexico and Texas should split responsibility for evaporation losses evenly during the initial
period when Reclamation impounded water because of flooding concerns.184 But after the public
safety risk abated, all responsibility for evaporation shifted to Texas because, according to the
River Master, Reclamation was holding water solely for Texas’s benefit.185 The River Master thus
charged Texas with a greater portion of the evaporation losses, and New Mexico received a
retroactive credit of 16,627 acre-feet of water.186
Arguments Before the Supreme Court: Texas has challenged whether the River Master had
legal authority to award New Mexico the retroactive credit.187 Texas argues that the River Master
has a purely “technical” role in calculating water delivery obligations, and that he departed from
the accounting procedures and deadlines defined in the Supreme Court’s 1998 amended decree.188
New Mexico responds that the equities of the case weigh in its favor, and that the River Master
acted within the scope of his powers.189 The United States, which filed an amicus curiae brief,
supports New Mexico.190
Considerations for Congress: Because the current Texas v. New Mexico matter concerns only
one particular flooding event, some commentators view it as unlikely to set major legal precedent
in other interstate water disputes.191 That said, the case may be significant for water users in New
Mexico and Texas that depend on the Pecos River for irrigation and other uses.192
Florida v. Georgia
In its second interstate water case this term, Florida v. Georgia, the Supreme Court will consider
whether to apportion the waters of the ACF Basin.193 Unlike in Texas v. New Mexico, Florida and

182 See U.S. Amicus Brief, Texas v. New Mexico, supra note 177, at 10-11.
183 Id. at 11; Texas Motion for Review, supra note 176, at 7; N.M. Response to Texas’s Motion for Review of River
Master’s Final Determination at 7, No. 22O65 (U.S. Feb. 15, 2019) [hereinafter New Mexico Response].
184 U.S. Amicus Brief, Texas v. New Mexico, supra note 177, at 10-11.
185 Texas Motion for Review, supra note 176, at 29.
186 Id. at 30; U.S. Amicus Brief, Texas v. New Mexico, supra note 177, at 14.
187 See Texas Motion for Review, supra note 176, at 14-17.
188 Id. at 18.
189 See New Mexico Response, supra note 183, at 15-37.
190 U.S. Amicus Brief, Texas v. New Mexico, supra note 177, at 14-21.
191 See, e.g., Reed Benson, Case Preview: In Newest Chapter in Long-Running Water Dispute, Court Will Hear First-
Ever Challenge to Ruling by Interstate River Master, SCOTUSBLOG (Sep. 29, 2020),
https://www.scotusblog.com/2020/09/case-preview-in-newest-chapter-in-long-running-water-dispute-court-will-hear-
first-ever-challenge-to-ruling-by-interstate-river-master/.
192 See, e.g., Transcript of Oral Argument at 3, Texas v. New Mexico, No. 22O65 (U.S. Oct. 5, 2020) (Solicitor General
of Texas arguing that the River Master’s decision “threatens incalculable economic harm” and “effectively deprives
farmers and business of west Texas of a year’s worth of irrigation . . . .”).
193 The Supreme Court issued an order on October 5, 2020 stating that it will schedule oral argument in Florida v.
Georgia in “due course.” Order List: 592 U.S., Case 142, Orig., Florida v. Georgia (U.S. Oct. 5, 2020).
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Georgia do not have an interstate compact that dictates how to share the ACF waters. In 1997,
Florida, Georgia, and Alabama signed, and Congress approved, an interstate compact in which
the three states pledged to “develop an allocation formula for equitably apportioning the surface
waters of the ACF Basin.” 194 But the states never agreed on a formula, and their compact expired
in 2003.195 With no agreement in place, Florida petitioned the Supreme Court to equitably
apportion ACF waters.196 The case is now before the Court for the second time: the High Court
previously rejected a Special Master’s recommendation197 to dismiss Florida’s petition,198 and the
case is now before the Court on whether to adopt a second Special Master’s recommendation to
dismiss the case.
Background: The three major rivers of the ACF Basin—the Apalachicola, Chattahoochee, and
Flint—form a “Y”-shaped river system199 (Figure 2). The Chattahoochee and Flint Rivers flow
southward from Georgia, forming the top arms of the Y.200 At the Florida border, the rivers
combine and travel through Jim Woodruff Dam, a U.S. Army Corps of Engineers (Corps)
project.201 South of the dam, the combined waters form the stem of the Y and change their name
to the Apalachicola River, which flows into Apalachicola Bay on the Gulf of Mexico.202 The
Corps can control the amount of water flowing into Apalachicola River through the Woodruff
Dam and four additional Corps-operated dams along the Chattahoochee River.203

194 Apalachicola-Chattahoochee-Flint River Basin Compact, Pub. L. 105-104, art. I, 111 Stat. 2219, 2222-23 (1997).
195 Florida v. Georgia, 138 S. Ct. 2502, 2510 (2018).
196 See Complaint for Equitable Apportionment and Injunctive Relief ¶¶ 5-7, Florida v. Georgia, No. 22O142 (U.S.
Oct. 1, 2013) [hereinafter Florida v. Georgia Complaint].
197 In original jurisdiction cases, the Supreme Court often appoints a special master to develop the record and preside
over preliminary legal arguments, but the Court retains authority to approve, revise, or reject a special master’s
findings, conclusions, and recommendations. E.g., Washington v. Oregon, 288 U.S. 592 (1933).
198 Florida v. Georgia, 138 S. Ct. 2502, 2516 (2018).
199 See id. at 2508.
200 See id. at 2508-09.
201 Id.
202 Id.
203 See Brief for the United States as Amicus Curiae in Support of Overruling Florida’s Exception 2C to the Report of
the Special Master at 4, Florida v. Georgia, No. 22O142 (U.S. July 6, 2020) [hereinafter 2020 U.S. Amicus Brief,
Florida v. Georgia]. The Corps operates Woodruff Dam and other dams in the ACF Basin under “a Master Water
Control Manual (Master Manual) governing all federal projects in the ACF Basin and separate reservoir regulation
manuals for each individual project.” Id. at 4-5.
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Figure 2. Apalachicola-Chattahoochee-Flint (ACF) River Basin

Source: Pamela King, Justices Tee Up Arguments in Southeast Water War, E&E NEWS (Oct. 5, 2020),
https://www.eenews.net/greenwire/2020/10/05/stories/1063715483.
In 2013, Florida filed a complaint in the Supreme Court alleging that Georgia’s consumption of
the Flint River reduced the amount of water that reaches the Apalachicola River, harming
Florida’s ecosystems and leading to the collapse of the local oyster industry.204 The Court
appointed a Special Master to develop the factual record and make preliminary legal
recommendations, subject to the Court’s approval.205
After a five-week trial in 2017 in which Florida sought a judicial decree limiting Georgia’s
consumptive use of the Flint River, the Special Master recommended dismissing the case because
the relief Florida sought would not redress its alleged injury.206 The Special Master concluded that
the requested remedy would be ineffective without requiring the Corps to change its dam
operations,207 but the Corps was not a party to the case because it was protected by sovereign
immunity and therefore would not be bound by the Supreme Court’s decree.208 The Special

204 See Florida v. Georgia Complaint, supra note 196, at ¶¶ 5-7.
205 Order in Pending Case, Florida v. Georgia, No. 22O142 (U.S. Nov. 19, 2014).
206 Report of the Special Master at 30, Florida v. Georgia, No. 22O142 (U.S. Feb. 14, 2017) [hereinafter First Special
Master Report, Florida v. Georgia].
207 Id.
208 Florida v. Georgia, 138 S. Ct. 2502, 2511 (2018).
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Master concluded that, without a decree binding the Corps, Florida had not met its burden to
show “by clear and convincing evidence that its injury can be redressed by an order equitably
apportioning the waters of the Basin.”209
In a 5-4 opinion, the Supreme Court in 2018 declined to adopt the Special Master’s conclusion.210
The Court held that “clear and convincing evidence” was too strict a standard for the question of
whether an equitable apportionment decree could adequately redress Florida’s alleged injuries.211
Instead, the Court held that Florida must only show “it is likely to prove possible” to fashion a
decree that “ameliorates [its] harm significantly . . . .”212 The High Court remanded the case to the
Special Master with instructions to address more questions about whether Florida met this burden
and satisfied the Court’s other standards to apportion interstate waters equitably.213
On remand, a newly appointed Special Master214 found nearly uniformly in Georgia’s favor and
recommended that the Supreme Court deny Florida’s request for apportionment.215 The Special
Master found that “Florida has not suffered any harm from Georgia’s consumption” of Flint River
waters.216 To the contrary, he concluded that drought and Florida’s mismanagement of its
resources were the predominate causes of the oyster industry collapse, and that there was no
evidence of harm to the ecosystem.217 The Special Master concluded that Georgia did not take an
inequitable amount of ACF waters given Georgia’s conservation efforts and its greater share of
the population, employment, and economic output of the ACF Basin.218 And because the Corps
impounds water during drought periods, the Special Master determined that “very little of the
additional streamflow generated by a decree would result in increased Apalachicola flows at the
time when Florida needs them.”219 Therefore, the Special Master concluded, “Florida would
receive no appreciable benefit from [an equitable apportionment] decree.”220

209 First Special Master Report, Florida v. Georgia, supra note 206, at 3.
210 Florida, 138 S. Ct. at 2516.
211 Id.
212 Id.
213 The Supreme Court instructed the Special Master to address whether (1) decreased water flow into the Apalachicola
River caused Florida harm; (2) Georgia took too much water from the Flint River in contravention of equitable
principles; (3) Georgia’s inequitable use of ACF Basin waters, if proven, injured Florida; (4) “an equity-based cap on
Georgia’s use of the Flint River [would] lead to a significant increase in streamflow from the Flint River into Florida’s
Apalachicola River . . . .”; and (5) the amount of extra water that flows into the Apalachicola River would
“significantly redress [Florida’s] economic and ecological harm . . . [.]” Id. at 2518. The Supreme Court also stated that
the Special Master must determine whether Florida proved that the benefits of apportionment “substantially outweigh
the harm that might result.” Id. at 2528 (quoting Colorado v. New Mexico, 459 U.S. 176, 187 (1982)).
214 The Supreme Court first appointed Ralph I. Lancaster, a private practitioner in Portland, Maine, as Special Master.
Florida v. Georgia, 574 U.S. 1021 (2014). Following its 2018 decision, the Court discharged Special Master Lancaster
“with the thanks of the Court,” and appointed the Honorable Paul J. Kelly, Jr., a federal judge on the United States
Court of Appeals for the Tenth Circuit. Order Appointing Judge Paul J. Kelly, Jr. as Special Master, 140 S. Ct. 2626
(Aug. 9, 2018), amended 139 S. Ct. 57 (Sept. 25, 2018) (mem.).
215 Report of the Special Master at 7, Florida v. Georgia, No. 142, Orig. (U.S. Dec. 11, 2019) [hereinafter Second
Special Master Report, Florida v. Georgia].
216 Id. at 25.
217 Id. at 8-23, 78.
218 Id. at 45-48. The special master found that Georgia’s portion of the ACF Basin “contains 92% of the population,
96% of employment, and contributes more than 99% of the gross regional product of the whole ACF Basin.” Id. at 46.
219 Id. at 62.
220 Id.
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Arguments Before the Supreme Court: Florida has filed exceptions (i.e., challenges) to all
elements of the Special Master’s conclusions, and it argues that the Special Master should have
allowed the states to present additional evidence.221 The United States has not taken a position on
the merits of the case. However, it did file an amicus curiae brief opposing Florida’s contention
that the Special Master overstated the possibility that, if the Supreme Court were to cap Georgia’s
consumption, the Corps could “offset” gains by impounding newly available water in its dams.222
The United States does not state whether the Corps would offset gains in ACF flows. Instead, it
asserts that a Supreme Court decree would not bind the Corps because it is not a party, and that
the Corps’ primary objective when releasing flows will be to advance its projects’ statutorily
authorized purposes rather than to address the apportionment problems at issue in the litigation.223
Considerations for Congress: With a growing demand for ACF Basin waters, particularly for
municipal and industrial uses in the Atlanta metropolitan area, and downstream flows that can
affect riverine and bay ecosystems in Florida, the Florida v. Georgia litigation has the potential to
affect millions of water users in the region224—an issue of interest to some in Congress.225 And
because the case concerns equitable apportionment rather than the specific terms of an interstate
compact, it may set precedent in future interstate water disputes that arise in the absence of a
compact.226 Changes in the Supreme Court’s composition may influence its ultimate decision as
Justices Kennedy and Ginsburg, who are no longer on the Court, were part of the five-Justice
majority that ruled in Florida’s favor in 2018.227 On the other hand, the four dissenting Justices
who would have adopted the first Special Master’s recommendation to decline Florida’s
apportionment request—Justices Thomas, Alito, Kagan, and Gorsuch—remain on the Court.228

221 Exceptions to Report of the Special Master by Plaintiff State of Florida and Brief in Support of Exceptions at i-ii,
Florida v. Georgia, No. 142, Orig. (U.S. Apr. 13, 2020) [hereinafter Florida’s Exceptions to Second Special Master
Report].
222 See 2020 U.S. Amicus Brief, Florida v. Georgia, supra note 203, at 22-44.
223 Id.
224 For additional background on the demand for ACF waters, see STEPHEN J. LAWRENCE, U.S. GEOLOGICAL SERV.,
WATER USE IN THE APALACHICOLA-CHATTAHOOCHEE-FLINT RIVER BASIN, ALABAMA, FLORIDA, AND GEORGIA, 2010,
AND WATER-USE TRENDS, 1985-2010 (2016).
225 See, e.g., 162 CONG. REC. H3060 (daily ed. May 24, 2016) (statement of Rep. Gwen Graham) (“The Apalachicola,
Chattahoochee, and Flint River system is a critically important asset to the Southeastern United States’ ecology,
economy, and heritage. Unfortunately, it has also become a point of intense political friction and lengthy, ongoing, and
extremely costly litigation.”).
226 For example, the Supreme Court’s 2018 decision in Florida v. Georgia articulated a new “likely to prove possible”
standard for redressability in equitable apportionment cases, discussed above. See Florida v. Georgia, 138 S. Ct. 2502,
2516 (2018). Some commentators view both Florida v. Georgia and Texas v. New Mexico as part of a broader trend of
interstate water disputes related to extreme weather events and climate change. See, e.g., Pamela King, Climate Change
Unleashes Interstate Water Wars, E&E NEWS (May 6, 2020), https://www.eenews.net/stories/1063047595; Jerome C.
Muys Jr. and George William Sherk, The Dogmas of the Quiet Past: Potential Climate Change Impacts on Interstate
Compact Water Allocation. 34 VA. ENV’T. L.J. 297, 299-303 (2016).
227 Florida v. Georgia, 138 S. Ct. 2502 (2018).
228 Id. at 2528 (Thomas, J., dissenting). Justice Thomas, joined by Justices Alito, Kagan, and Gorsuch, argued that the
Special Master reached his decision after balancing the harms and benefits of an equitable apportionment decree rather
than applying a “‘threshold’ redressability requirement. . . .” Id. at 2536.
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Endangered Species Act and the Freedom of Information Act:
U.S. Fish and Wildlife Service v. Sierra Club229
On November 2, 2020, the Supreme Court held oral argument in U.S. Fish and Wildlife Service v.
Sierra Club, considering the limits of the deliberative process privilege under the Freedom of
Information Act (FOIA) as it applies to Section 7 consultations under the Endangered Species Act
(ESA). The Court granted review of a Ninth Circuit decision requiring disclosure of certain
agency documents produced during the ESA consultation process for an EPA rule on cooling
water intake structures.
Background: In April 2011, EPA proposed new regulations for cooling water intake structures
under the CWA.230 In connection with the proposed regulations, EPA initiated an ESA Section 7
consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service
(together, the Services).231
Section 7 of the ESA generally requires federal agencies to consult with one or both of the
Services when their actions may affect species listed as endangered or threatened under the ESA
or their designated critical habitat.232 This process is used to ensure that federal agencies comply
with the ESA mandate that federal agency actions not “jeopardize the continued existence of any
endangered species or threatened species or result in the destruction or adverse modification of
[critical] habitat.”233 At the end of a Section 7 consultation, the Services generally provide a
biological opinion (BiOp) as to whether the action is likely to jeopardize the continued existence
of the listed species or adversely modify critical habitat.234 If the Services determine that the
action is likely to jeopardize listed species or adversely modify critical habitat, they must suggest
reasonable and prudent alternatives (RPAs) to the action that would not violate the statute, to the
extent RPAs are available.235 The federal agency may request that the Services provide a draft

229 Erin H. Ward, CRS Legislative Attorney, authored this section of the report.
230 76 Fed. Reg. 22,174 (Apr. 20, 2011).
231 For a brief overview of the ESA, see CRS In Focus IF11241, The Legal Framework of the Endangered Species Act
(ESA), by Erin H. Ward.
232 16 U.S.C. § 1536(a)(2). Endangered species, threatened species, and critical habitat are all defined terms under the
ESA. The ESA defines endangered species as “any species which is in danger of extinction throughout all or a
significant portion of its range,” other than certain insects considered pests. Id. § 1532(6). It defines threatened species
to mean “any species which is likely to become an endangered species within the foreseeable future throughout all or a
significant portion of its range.” Id. § 1532(20). Finally, the ESA defines critical habitat for an endangered or
threatened species as
(i) the specific areas within the geographical area occupied by the species, at the time it is listed in
accordance with the provisions of section 1533 of this title, on which are found those physical or
biological features (I) essential to the conservation of the species and (II) which may require special
management considerations or protection; and
(ii) specific areas outside the geographical area occupied by the species at the time it is listed in
accordance with the provisions of section 1533 of this title, upon a determination by the Secretary
that such areas are essential for the conservation of the species.
Id. § 1532(5). The act does not define habitat.
233 Id.
234 Id. § 1536(b).
235 Id. § 1536(b)(3)(A).
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BiOp to analyze the RPAs if the Services conclude that the action is likely to jeopardize listed
species or adversely modify critical habitat.236
In this case, after reviewing EPA’s proposed rule, the Services in December 2013 initially
concluded in separate draft BiOps that EPA’s proposed cooling water intake structure rule would
jeopardize listed species and suggested RPAs.237 EPA subsequently modified the proposed action
in March 2014.238 NMFS circulated a draft jeopardy BiOp internally in April 2014, and in May
2014 the Services issued a joint final BiOp finding no jeopardy.239
The Sierra Club filed a FOIA request seeking, among other things, the Services’ December 2013
draft BiOps finding jeopardy, the associated RPAs, the April 2014 draft BiOp, and other
documents the Services prepared during the consultation process to assess EPA’s proposed
cooling water intake structures rule.240 FOIA requires federal agencies to provide certain agency
records to the public, either automatically or upon request by any person provided the records are
“reasonably describe[d].”241 But the statute allows federal agencies to withhold records (or
portions of records) that fall within nine exemptions.242 At issue in this case is FOIA
Exemption 5:
[The requirement to release agency records] does not apply to matters that are—
. . . (5) inter-agency or intra-agency memorandums or letters that would not be available
by law to a party other than an agency in litigation with the agency, provided that the
deliberative process privilege shall not apply to records created 25 years or more before
the date on which the records were requested[.]243
The Services relied on this exemption to withhold records related to the consultation process,
including the draft BiOps that found that the proposed rule would jeopardize listed species and
documents identifying RPAs to the action. Sierra Club challenged the records being withheld as
not properly within the FOIA Exemption 5. The district court identified 12 documents that had
been improperly withheld in part or in full.244 The 12 documents included three draft BiOps, three
documents identifying RPAs, and six documents with other terms and conditions or analyses.245
Ninth Circuit Decision: The Ninth Circuit affirmed the district court’s order except with respect
to three documents: two of the RPAs and one of the draft BiOps.246 The court noted that
Exemption 5 “has been interpreted as coextensive with all civil discovery privileges” and that in
this case, the Services were claiming the “deliberative process privilege,” which protects “‘the
quality of agency decisions by ensuring that the frank discussion of legal or policy matters in
writing, within the agency, is not inhibited by public disclosure.’”247 However, the court also

236 50 C.F.R. § 402.14(g)(5).
237 Sierra Club v. U.S. Fish and Wildlife Serv., 925 F.3d 1000, 1007-08 (9th Cir. 2019).
238 Id. at 1008.
239 Id.
240 Id. at 1008-10.
241 5 U.S.C. § 552(a). For more information on FOIA, see CRS Report R46238, The Freedom of Information Act
(FOIA): A Legal Overview, by Daniel J. Sheffner.
242 Id. § 552(b).
243 Id. § 552(b)(5).
244 Sierra Club v. U.S. Fish & Wildlife Serv., 925 F.3d 1000, 1009 (9th Cir. 2019).
245 Id. at 1009-10.
246 Id. at 1018.
247 Id. at 1011 (quoting Maricopa Audubon Soc’y v. U.S. Forest Serv., 108 F.3d 1089, 1092 (9th Cir. 1997)).
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observed that “FOIA is meant to promote disclosure” and accordingly “its exemptions are
interpreted narrowly.”248
To determine whether the documents should be exempt from disclosure pursuant to the
deliberative process privilege, the Ninth Circuit assessed whether the documents were (1) pre-
decisional and (2) deliberative.249 To classify a document as pre-decisional under Ninth Circuit
precedent, the agency must identify the decision to which the document is “pre-decisional” and
show that the document was “‘prepared in order to assist an agency decision-maker in arriving at
his decision, and may include recommendations, draft documents, proposals, suggestions, and
other subjective documents which reflect the personal opinions of the writer rather than the policy
of the agency.’”250 In applying this standard to the Services’ documents, the court focused on
whether each document was pre-decisional to the BiOps rather than to the EPA rulemaking.251
To assess the second deliberativeness prong, the Ninth Circuit applied a “‘functional approach’”
that “considers whether the contents of the documents ‘reveal the mental processes of the
decision-makers’ and would ‘expose [the Services’] decision-making process in such a way as to
discourage candid discussion within the agency and thereby undermine [their] ability to perform
[their] functions.’”252 In making this assessment, the court explained that the Ninth Circuit and
other circuits understand “deliberative” to mean “reflecting the opinions of individuals or groups
of employees rather than the position of an entire agency.”253
The court concluded that the two December 2013 draft BiOps finding jeopardy were neither pre-
decisional nor deliberative because they were the Services’ final opinions on the EPA rule as
proposed in November 2013.254 The court found similarly for the other documents containing
terms, conditions, and other analyses.255 The court held that two of the RPAs from December
2013 were successive drafts of the Services’ recommendations that could shed light on the
internal vetting process and were accordingly deliberative, but that the March 2014 RPA appeared
to be a final version that was not deliberative.256 Finally, the court held that the April 2014 draft
jeopardy BiOp that addressed EPA’s revised rule as proposed in March 2014 was both pre-
decisional and deliberative because there were later versions of the BiOp and some of the internal
agency deliberations might be reconstructed if the April 2014 draft and May 2014 final BiOps
were compared.257
Arguments Before the Supreme Court: The Services argue to the Supreme Court that requiring
disclosure of the draft BiOps is contrary to Congress’s intent that Exemption 5 of FOIA protect
“frank discussion of legal or policy matters” in agency decision-making.258 The Services observe
that the Supreme Court has described Exemption 5 as distinguishing “between predecisional
memoranda prepared in order to assist an agency decision-maker in arriving at his decision,

248 Id.
249 Id.
250 Id. at 1012 (quoting Assembly of Cal. v. U.S. Dep’t of Commerce, 968 F.2d 916, 920 (9th Cir. 1992)).
251 Id. at 1013.
252 Id. at 1015 (quoting Assembly of Cal., 968 F.2d at 920-21).
253 Id. at 1016.
254 Id. at 1012-15.
255 Id.
256 Id. at 1018.
257 Id.
258 Brief for Petitioners, U.S. Fish and Wildlife Serv. v. Sierra Club, No. 19-547, at 18 (2020).
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which are exempt from disclosure, and postdecisional memoranda setting forth the reasons for an
agency decision already made, which are not.”259 The Services point out that the draft December
2013 BiOps were not final BiOps and were not circulated in full to EPA “because they decided
more work was needed.”260 They note that under Supreme Court and D.C. Circuit precedent, a
draft does not become a final document if the agency abandons a particular course.261 The
Services contend that requiring disclosure of draft BiOps that are not adopted as the agency’s
final position “would severely undermine Congress’s purposes in incorporating the deliberative
process privilege into FOIA.”262
In response, the Sierra Club contends that the Services rely on principles governing judicial
review of final agency action, and that the FOIA statutory provisions do not limit disclosures to
final agency action but instead “mandate[] disclosure of the reasoning for intermediate decisions
that shape later outcomes.”263 Sierra Club further argues that whether a decision is final depends
not on the agency’s designation but rather on “whether the record demonstrates that the document
contains the basis of a policy the agencies ‘actually adopted,’ rather than conveying ‘advisory
opinions, recommendations and deliberations.”264 Finally, Sierra Club observes that a draft
jeopardy BiOp may contain a tentative jeopardy determination for further discussion or may
contain a “conclusive jeopardy opinion” with only the RPA component for further discussion.265
Considerations for Congress: The Supreme Court’s decision in this case could determine
whether parties seeking to challenge BiOps and related federal agency actions through judicial
review may obtain copies of draft BiOps and other agency documents created during the
consultation process. Final BiOps—unlike draft BiOps—are final agency actions subject to
judicial review under the APA.266 The APA allows affected individuals to seek review by the
courts of final agency actions to determine whether the actions are within the agency’s statutory
authority and comply with legal requirements.267 The APA requires courts to “hold unlawful and
set aside agency action, findings, and conclusions found to be,” among other things, “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.”268 When a court
reviews a final BiOp issued by the Services, any interim agency records that are not ultimately
adopted would likely only affect the outcome of the litigation to the extent they showed the final
BiOp was arbitrary and capricious. For example, if a draft BiOp includes data that are not
addressed in the final BiOp or that contradict the Services’ analysis in the final BiOp, the court
might conclude that the final BiOp is arbitrary and capricious because the Services had “entirely
failed to consider an important aspect of the problem” or “offered an explanation for [their]
decision that runs counter to the evidence before the agency.”269 That the agency modified its

259 Id. (quoting Renegotiation Bd. v. Grumman Aircraft Eng’g Corp., 421 U.S. 168, 184 (1975)).
260 Id. at 19.
261 Id. at 20.
262 Id. at 21.
263 Brief for Respondent, U.S. Fish and Wildlife Serv. v. Sierra Club, No. 19-547, at 20 (2020).
264 Id. at 20-21.
265 Id. at 21.
266 Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (finding biological opinions are final agency action subject to
judicial review); Ctr. for Marine Conservation v. Brown, 917 F. Supp. 1128, 1151-52 (S.D. Tex. 1996) (concluding that
biological opinions are not substantive rules but rather policy statements).
267 5 U.S.C. §§ 701-706.
268 Id. § 706(2).
269 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
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analysis or changed its conclusion between the draft BiOp and final BiOp, however, would not on
its own be sufficient to vacate a final BiOp.
Release of such documents would provide more transparency into the agency decision-making
process as agencies assess the effects on listed species and critical habitat. While such
transparency could increase third parties’ ability to hold federal agencies accountable for their
assessments and for changes they make to planned actions, the government contends that it could
also chill agencies’ “frank discussion” of legal and policy issues when they assess such effects
and decide how to proceed. If Congress is unsatisfied with how the Supreme Court’s opinion
balances transparency with protecting agency deliberations, Congress may amend FOIA
exemptions to clarify which agency documents are protected from disclosure by Exemption 5.
Climate Change Liability Suits: BP p.l.c. v. Mayor and City Council
of Baltimore270
In BP p.l.c. v. Mayor and City Council of Baltimore, the Supreme Court granted review of a
Fourth Circuit ruling affirming a district court’s remand from federal to state court of a lawsuit
seeking damages for climate change-related injuries resulting from the sale and promotion of
fossil fuel products.271 Because previous attempts to hold GHG emitters liable for climate change-
related injuries have failed in federal courts, state and local governments, including Baltimore,
have pursued nuisance and other tort claims against fossil fuel producers in state court.272 The
Court’s ruling in Baltimore could affect whether climate liability suits273 against fossil fuel
producers belong in federal or state court.
Background: The Baltimore case arose from lower court decisions related to whether climate
liability suits belong in federal court. Federal courts have limited jurisdiction over cases relating
to certain types of subject matter and “possess only that power authorized by Constitution and
statute.”274 In general, federal courts have such subject matter jurisdiction over any case arising
under federal statutes, the Constitution, or treaties.275 If the plaintiff brings a suit in state court
over which the federal district courts have jurisdiction, the defendant may choose to “remove” the
suit to federal court based on statutory or constitutional grounds.276

270 Linda Tsang, CRS Legislative Attorney, authored this section of the report.
271 Mayor & City Council of Balt. v. BP P.L.C., 952 F.3d 452 (4th Cir. 2020), cert. granted sub nom. BP p.l.c. v.
Mayor & City Council of Balt., 207 L. Ed. 2d 1165 (No. 19-1189) (U.S. Oct. 2, 2020).
272 See infra, “Considerations for Congress” for relevant federal and state cases.
273 Legal scholars and commentators have used various terms to refer to lawsuits seeking to hold GHG emitters or
fossil fuel producers liable for climate change-related damages, including climate liability suits, climate change
nuisance suits, climate tort suits, and climate change suits. See, e.g., Myanna Dellinger, See You in Court: Around the
World in Eight Climate Change Lawsuits, 42 WM. & MARY ENV’T L. & POL’Y REV. 525 (2018); Tracy Hester, Climate
Tort Federalism, 13 FIU L. REV. 79 (2018); Carol Wood et al., Do Climate Change Nuisance Suits Belong In Federal
Court?, LAW360 (June 16, 2020), https://www.law360.com/articles/1282676; Karen Savage, What’s Next for Each
Climate Liability Suit, THE CLIMATE DOCKET (May 31, 2020), https://www.climatedocket.com/2020/05/31/climate-
suits-colorado-baltimore-california. This report will refer to these cases as “climate liability” lawsuits unless the suit
focuses on a specific claim, such as a state nuisance law.
274 U.S. CONST. art. III, § 2; Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994).
275 U.S. CONST. art. III, § 2.
276 28 U.S.C. § 1441. In addition, a civil action filed in state court may be removed to federal court if a specialized
removal provision applies, such as the federal-officer removal statute. Id. § 1442.
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In July 2018, the Mayor and City of Baltimore (Baltimore) filed suit in Maryland state court
against twenty-six fossil fuel producers, alleging that they violated state nuisance, negligence,
strict liability, and consumer fraud laws by producing, promoting, and marketing fossil fuel
products that contribute to climate change.277 Baltimore claims that it suffered various “climate
change-related injuries” as a result of these companies’ actions, including infrastructure repair and
planning and response costs associated with increases in sea levels, storms, floods, heatwaves,
droughts, and extreme precipitation.278 Baltimore seeks compensatory damages, civil penalties,
punitive damages, and other relief.279
Two of the defendants, Chevron Corporation and Chevron U.S.A. Inc., removed the case to the
U.S. District Court for the District of Maryland, asserting eight separate grounds to support
removal.280 One of those eight grounds was that removal was authorized under the federal-officer
removal statute, 28 U.S.C. § 1442, because Baltimore “bases liability on activities undertaken at
the direction of the federal government.”281 The defendants also argued that the case should be
removed because Baltimore’s claims are governed by federal common law and preempted by the
CAA, other federal statutes, and the Constitution.282 Baltimore then filed a motion to send the
case back to state court, asserting that the federal court lacked subject matter jurisdiction over the
state law claims.283 The Maryland federal district court granted the remand to state court, rejecting
all eight removal grounds asserted by the defendants.284 The defendants appealed the remand
order to the Fourth Circuit.285
On appeal, the Fourth Circuit concluded that it could review only the lower court’s ruling
pursuant to the federal-officer removal statute, 28 U.S.C. § 1442, because 28 U.S.C. § 1447(d)
bars appellate review of removal orders unless the case was removed pursuant to (1) the federal-
officer removal statute, 28 U.S.C. § 1442, or (2) the civil-rights removal statute, 28 U.S.C.
§ 1443.286 Relying on Fourth Circuit precedent, the court then determined that it lacked
jurisdiction because Section 1447(d) does not extend appellate jurisdiction to the seven other
grounds for removal that the district court rejected in its order.287 In so holding, the court
acknowledged conflicting rulings from federal appellate courts on the scope of appellate review

277 Plaintiff’s Complaint at 1-5, Mayor & City Council of Balt. v. BP P.L.C., No. 24-C-18-004219 (Balt. City Cir. Ct.
Jul. 20, 2018).
278 Id. at 106.
279 Id. at 130.
280 Mayor & City Council of Balt. v. BP P.L.C., 388 F. Supp. 3d 538, 548-49 (D. Md. 2019).
281 Id. at 567. The federal-officer removal statute authorizes the removal of state-court actions filed against “any officer
(or any person acting under that officer) of the United States or of any agency thereof, in an official or individual
capacity, for or relating to any act under color of such office” . . . “to the district court of the United States for the
district and division embracing the place wherein it is pending.” 28 U.S.C. § 1442(a).
282 Mayor & City Council of Balt., 388 F. Supp. at 548-49.
283 Id. at 549. Baltimore filed its motion to remand under 28 U.S.C. § 1447(c), which states that “[i]f at any time before
final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”
284 Mayor & City Council of Balt., 388 F. Supp. at 549.
285 Mayor & City Council of Balt. v. BP P.L.C., 952 F.3d 452, 458 (4th Cir. 2020), cert. granted sub nom. BP p.l.c. v.
Mayor & City Council of Balt., 207 L. Ed. 2d 1165 (No. 19-1189) (U.S. Oct. 2, 2020).
286 Id. at 459-61. 28 U.S.C. § 1447(d) states that “[a]n order remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which
it was removed pursuant to section 1442 [federal-officer removal statute] or 1443 [civil-rights removal statute] of this
title shall be reviewable by appeal or otherwise.”
287 Mayor & City Council of Balt., 952 F.3d at 460-61.
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of removal orders under Section 1447(d).288 The Fourth Circuit affirmed the district court’s ruling
that removal to federal court was improper under the federal-officer removal statute.289
Arguments Before the Supreme Court: The Supreme Court granted the fossil fuel producers’
petition for a writ of certiorari on whether Section 1447(d) permits appellate review of any
removal grounds addressed in a district court’s remand order where removal to federal court was
based in part on the federal-officer or civil-rights removal statutes.290 In their petition, the fossil
fuel producers argued that the Fourth Circuit erred in its narrow interpretation that Section
1447(d) limits the scope of appellate review to whether removal was appropriate under the
federal-officer or civil-rights removal statute.291
To support their more expansive view of Section 1447(d), the petitioners cited decisions from the
U.S. Courts of Appeals for the Fifth, Sixth, and Seventh Circuits that held that any issue
encompassed in the remand order is subject to appellate review.292 They argued that these
appellate rulings followed the Supreme Court’s decision in Yamaha Motor Corp., U.S.A. v.
Calhoun, where the Court held that a court of appeals may review “any issue fairly included
within a certified order” for an interlocutory (i.e., interim) appeal of a pending question of law in
a lower court case.293 The petitioners also noted that in decisions prior to the Baltimore suit, other
courts of appeal had reached conflicting conclusions. Specifically, the Second, Third, Fourth,
Eighth, Ninth, and Eleventh Circuits held that only the federal-officer or civil-rights statutory
ground for removal in a district court’s remand order is subject to appellate review in suits.294
Baltimore asserted that the Fourth Circuit’s narrow interpretation is “consistent with the [Section
1447(d)] statutory text and strict limitations Congress has historically placed on appellate review
of remand orders.”295 The Court held oral argument on January 19, 2021.
Considerations for Congress: Baltimore’s lawsuit is one of over twenty similar suits that state
and local governments have filed since 2017, seeking to hold fossil fuel producers liable for
climate change-related damages under state nuisance, negligence, or consumer fraud laws.296
Several of these suits are facing similar issues related to which court is the appropriate venue.
Much like the plaintiffs in Baltimore, other state and local governments have had their cases
returned to state courts after securing remand orders under Section 1447(d) from the First, Ninth,
and Tenth Circuit Courts of Appeals.297 Fossil fuel producers in these cases have filed petitions

288 Id. at 460-61.
289 Id. at 471.
290 Mayor & City Council of Balt. v. BP P.L.C., 952 F.3d 452 (4th Cir. 2020), cert. granted sub nom. BP p.l.c. v.
Mayor & City Council of Balt., 207 L. Ed. 2d 1165 (No. 19-1189) (U.S. Oct. 2, 2020).
291 Petition for Writ of Certiorari at 17, BP p.l.c. v. Mayor & City Council of Balt., No. 19-1189 (U.S. Mar. 31, 2020).
292 Id.
293 Id. at 11-14 (citing Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 206 (1996)).
294 Id. at 17.
295 Brief of Respondent Mayor & City Council of Balt. in Opposition at 3-5, BP p.l.c. v. Mayor & City Council of Balt.,
No. 19-1189 (S. Ct. Mar. 31, 2020).
296 Keith Goldberg, Big Oil Faces Rising Tide of Gov’t Climate Change Suits, LAW360 (Sept. 18, 2020),
https://www.law360.com/articles/1311199.
297 See Rhode Island v. Shell Oil Prod. Co., No. 19-1818, 2020 WL 6336000, *6-7 (1st Cir. Oct. 29, 2020) (concluding
that 28 U.S.C § 1447(d) allows review of only the district court’s decision regarding removal under federal-officer
removal statute, 28 U.S.C. § 1442(a)(1), and the fossil fuel producers failed to establish proper grounds for federal
officer removal); Bd. of Cnty. Comm’rs v. Suncor Energy (U.S.A.) Inc., 965 F.3d 792, 827 (10th Cir. 2020) (same);
Cnty. of San Mateo v. Chevron Corp., 960 F.3d 586, 603 (9th Cir. 2020) (same). These appellate decisions affected
climate liability suits brought by the State of Rhode Island, the Board of County Commissioners of Boulder County,
and the separate suits by the California counties of San Mateo, Imperial Beach, Marin, and Santa Cruz.
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for a writ of certiorari to the Supreme Court on the same Section 1447(d) issue raised in the
Baltimore suit.298
In addition to court venue issues, challenges to personal jurisdiction over fossil fuel producers
have halted various climate liability suits. For example, the Maryland state circuit court has
paused the Baltimore suit pending the outcome of the Supreme Court’s review of the Section
1447(d) issue and a pair of Supreme Court cases related to whether a state court has personal
jurisdiction over corporate defendants that are not incorporated or headquartered in-state.299 A
federal district court in Washington State reviewing similar personal jurisdiction issues has
paused a King County climate liability suit to await the Supreme Court’s decision in the personal
jurisdiction cases.300 Other courts may follow suit in staying pending climate liability litigation
that raise related venue and personal jurisdiction challenges.301
Although resolution of the removal issues in Baltimore will not address the merits of the climate
liability suits, the court venue may affect the law and precedent that is applied in these cases.
Fossil fuel producers have sought to remove the state climate liability cases to federal court,302
where previous attempts to hold major sources of GHG emissions liable for climate change-
related injuries have failed. In 2011, the Supreme Court held in American Electric Power Co. v.
Connecticut (AEP) that the federal common law interstate nuisance claim303 seeking an injunction
limiting GHG emissions from fossil fuel-fired power plants, was displaced by the CAA.304 The
AEP decision affirmed the Court’s 2007 ruling in Massachusetts v. EPA, which held that the CAA
authorizes EPA to regulate GHG emissions from power plants.305 The Court explained that a
federal statute displaces federal common law if the statute “‘speak[s] directly to [the] question’ at
issue.”306 In 2012, the Ninth Circuit held in Native Village of Kivalina v. ExxonMobil Corp. that
the Supreme Court’s reasoning in AEP also precludes federal common law claims seeking
monetary damages, rather than injunctive relief.307 Other federal common law nuisance suits

298 Petition for Writ of Certiorari, Shell Oil Prods. Co., L.L.C. v. Rhode Island, No. 20-900 (U.S. Jan. 5, 2021); Petition
for Writ of Certiorari, Chevron Corp. v. Cnty. of San Mateo, No. 20-884 (U.S. Jan. 4, 2021); Petition for Writ of
Certiorari, Suncor Energy (USA) v. Bd. of Cnty. Comm’ns of Boulder Cnty. No. 20-783 (U.S. Dec. 8, 2020).
299 Docket Order, Mayor & City Council of Balt. v. BP P.L.C., No. 24-C-18-004219 (Md. Cir. Aug. 6, 2020). See Ford
Motor Co. v. Mont. Eighth Judicial Dist. Court, No. 19-368, consolidated with Ford Motor Co. v. Bandemer, No. 19-
369, cert. granted (U.S. Jan. 17, 2020) (reviewing decisions by the Montana and Minnesota high courts in cases
concerning specific personal jurisdiction over auto manufacturers in wrongful death and products liability cases).
300 See, e.g., Order Continuing Stay, King Cnty. v. BP PLC, No. 2:18-cv-00758 (W.D. Wash. Sept. 10, 2020).
301 See, e.g., Joint Motion to Stay, City of Charleston v. Brabham Oil Co. Inc., No. 2:20cv03579 (D.S.C. Nov. 13,
2020) (requesting a stay pending the Supreme Court’s decision in the Baltimore suit).
302 See, e.g., supra note 297.
303 Generally, federal common laws are applied by federal courts absent any controlling federal statute. See Rodriguez
v. Fed. Deposit Ins. Corp., 140 S. Ct. 713, 717 (2020) (“[O]nly limited areas exist in which federal judges may
appropriately craft the rule of decision.”). The Supreme Court recognized the federal common law of public nuisance in
its 1972 decision Illinois v. City of Milwaukee, which extended federal common law to include public nuisances caused
by the pollution of either interstate or navigable waters. 406 U.S. 91, 99 (1972).
304 See AEP, 564 U.S. 410, 415 (2011) (“[T]he Clean Air Act and the EPA actions it authorizes displace any federal
common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.”).
305 See id. at 424 (“Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to
regulation under the [Clean Air] Act.”) (citing Massachusetts v. EPA, 549 U.S. 497, 528-29 (2007)).
306 Id. at 424 (quoting Mobil Oil Co v. Higginbotham, 436 U.S. 618, 625 (1978)). See also Milwaukee v. Illinois, 451
U.S. 304, 314 (1981) (“[W]hen Congress addresses a question previously governed by a decision rested on federal
common law the need for such an unusual exercise of lawmaking by federal courts disappears.”).
307 Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 858 (9th Cir. 2012). The Alaskan native village sought
monetary damages from energy companies and electric utilities for coastal erosion, alleging that GHG emissions from
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seeking climate change-related damages have also been dismissed by federal district courts
because the courts found that the claims were displaced by the CAA or raised nonjusticiable
questions that only the political branches can resolve.308
It is unclear how AEP, Native Village of Kivalina, and similar rulings would apply in ongoing
state climate liability suits because those decisions neither involved fossil fuel producers nor
addressed whether federal law preempts state law claims. As the Supreme Court noted in AEP,
the “availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the
federal Act.”309 Unlike displacement, which occurs when “federal statutory law governs a
question previously the subject of federal common law,”310 preemption occurs when a federal
statute supersedes a state law.311 The Court in AEP noted that “[l]egislative displacement of
federal common law does not require the ‘same sort of evidence of a clear and manifest
[congressional] purpose’ demanded for preemption of state law.”312
In May 2020, the Ninth Circuit directly addressed whether the CAA preempts the City and
County of San Francisco and the City of Oakland’s climate nuisance suits against fossil fuel
producers.313 In City of Oakland v. BP PLC, the court vacated and remanded the federal district
court’s denial of the plaintiffs’ motions to remand to state court, holding that the lower court did
not have jurisdiction over the state-law public nuisance claim because it did not raise a substantial
question of federal law.314 The court concluded, among other things, that the CAA does not
“completely preempt” state-law causes of action because “the statutory language does not
indicate that Congress intended to preempt ‘every state law cause of action within the scope’ of
the Clean Air Act” and that the CAA does not include a “substitute” federal claim for “nuisance
caused by global warming.”315 The Ninth Circuit instructed that the state-law nuisance claims
must proceed in state court if the lower court determines that there is no alternative basis for
federal jurisdiction.316 On the same day, the Ninth Circuit remanded separate climate nuisance
suits by several California counties to state court based on defendant’s failure to establish proper
grounds for federal-officer removal.317 If these climate nuisance suits survive other jurisdictional

their operations contribute to climate change, and thus to the village’s erosion problem. Id. at 853-54.
308 The City of New York is appealing to the Second Circuit a federal district court dismissal of its climate liability suit
against fossil fuel producers, which ruled that the nuisance and trespass claims involve interstate GHG emissions and
are displaced by the CAA. City of New York v. BP P.L.C., 325 F. Supp. 3d 466, 474-75 (S.D.N.Y. 2018), appeal
pending, No. 18-2188 (2d Cir.). Also, in Comer v. Murphy Oil USA, property owners sought money damages, claiming
that GHG emissions from oil and energy companies were a “nuisance” that added to the severity of Hurricane Katrina,
which damaged their property. 839 F. Supp. 2d 849, 862-865 (S.D. Miss. 2012), aff’d on other grounds, 718 F. 3d 460
(5th Cir. 2013). The court held that the CAA displaced federal claims and preempted the state claims, and that “the
claims presented by the plaintiffs constitute non-justiciable political questions, because there are no judicially
discoverable and manageable standards for resolving the issues presented, and because the case would require the
Court to make initial policy determinations that have been entrusted to the EPA by Congress.” Id. at 865.
309 AEP, 564 U.S. at 429.
310 City of Milwaukee v. Illinois, 451 U.S. 304, 316 (1981).
311 Id. at 316-17.
312 AEP, 564 U.S. at 423, quoting Milwaukee, 451 U.S. at 317.
313 City of Oakland v. BP PLC, 960 F.3d 570, 581-82 (9th Cir. 2020).
314 Id. at 581-82.
315 Id.
316 Id. at 585-86.
317 Cnty. of San Mateo v. Chevron Corp., 960 F.3d 586 (9th Cir. 2020) (concluding that 28 U.S.C § 1447(d) allows
review only of the district court’s decision regarding removal under federal-officer removal statute, 28 U.S.C. §
1442(a)(1), and the fossil fuel producers failed to establish proper grounds for federal officer removal).
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challenges and remain in state court, they would not be bound by AEP, Native Village of Kivalina
and other federal precedents involving federal nuisance common law.
The Supreme Court has not agreed to address the question of whether federal or state common
law would apply to climate change liability suits in the Baltimore case. However, in an effort to
resolve the federal versus state law question, the fossil fuel producers have asked the Court to
expand the scope of its review in Baltimore to “confirm that this case and others like it were
properly removed to federal court on the ground that federal common law necessarily governs
claims alleging injury based on the contribution of interstate and international emissions to global
climate change.”318
The scope of appellate review of remand orders is among various procedural and jurisdictional
issues that arise in climate change liability suits that implicate the interaction between federal and
state law. These issues will likely contribute to Congress’s ongoing debate over climate change
regulation and policy. Without legislative clarification or direction on these issues, the courts will
continue to draw the lines with respect to the scope of appellate review, the appropriate venue for
climate liability, and the applicability of federal versus state law.
Renewable Fuel Standard: HollyFrontier Cheyenne Refining LLC v.
Renewable Fuels Association319
In HollyFrontier Cheyenne Refining LLC v. Renewable Fuels Association, the Supreme Court
granted review on January 8, 2021 of a Tenth Circuit decision vacating small refinery exemptions
that the EPA had granted under the CAA’s renewable fuel standard (RFS).320 The RFS requires
refineries and importers of non-renewable fuels to account for a certain amount of renewable fuel
that is blended into transportation fuel (i.e., an annual renewable volume obligation). The RFS
allows small refineries to petition EPA “at any time” for “an extension of the exemption” “for the
reason of disproportionate economic hardship.”321
Background: The RFS generally requires EPA to ensure that increasing specified volumes of
categories of renewable fuels are blended into transportation fuel in the United States each
year.322 In turn, EPA requires refineries and importers of non-renewable fuels (obligated parties)
to meet annual renewable volume obligations (RVOs) by either blending renewable fuels into
transportation fuel themselves or obtaining credits, called renewable identification numbers
(RINs) from other entities that blended renewable fuels.323 Each obligated party’s individual RVO
is based on its gasoline and diesel production or imports and an annual percentage standard that
EPA promulgates every year.324 The annual percentage standards for each renewable fuel category
are based on projected gasoline and diesel consumption in the United States and the statutory
volume requirements.325

318 Brief for the Petitioners at 45, BP p.l.c. v. Mayor & City Council of Balt., No. 19-1189 (U.S. Nov. 16, 2020).
319 Erin H. Ward, CRS Legislative Attorney, authored this section of the report.
320 Renewable Fuels Ass’n v. EPA, 948 F.3d 1206 (10th Cir. 2020), cert. granted sub nom. HollyFrontier Cheyenne
Refining, LLC, v. Renewable Fuels Ass’n, No. 20-472 (U.S. Jan. 8, 2021).
321 42 U.S.C. § 7545(o)(9)(B).
322 Id. § 7545(o).
323 Id. § 7545(o)(2).
324 Id. § 7545(o)(3).
325 40 C.F.R. § 80.1405.
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When the RFS was enacted in 2005, Congress included an exemption for small refineries.326 The
RFS automatically exempted all small refineries from RFS compliance through the 2010
compliance year.327 Congress required EPA to extend this exemption for two additional years if a
study conducted by the Secretary of Energy determined that compliance with the RFS would
subject small refineries to a “disproportionate economic hardship.”328 In addition—and of
relevance to the Tenth Circuit decision—the RFS allows small refineries to petition EPA “at any
time” “for an extension of the exemption” “for the reason of disproportionate economic
hardship.”329 Small refineries must demonstrate disproportionate economic hardship due to RFS
compliance for each year petitioned for.330 If granted, the exemption is only valid for the
compliance year(s) petitioned for.331
Tenth Circuit Opinion: In Renewable Fuels Association v. EPA, renewable fuels producers
challenged EPA’s decision to grant petitions to exempt three small refineries from the RFS for
specific compliance years: HollyFrontier Cheyenne Refining LLC for 2016, HollyFrontier Woods
Cross Refining LLC for 2016, and Wynnewood Refining Company, LLC for 2017.332 The
refineries intervened in the case as respondents. The Tenth Circuit agreed with the challengers
with respect to two central legal issues—that the EPA improperly interpreted the RFS regarding
(1) which refineries are eligible to receive exemptions and (2) how to evaluate “disproportionate
economic hardship.”
The Tenth Circuit first held that small refineries are eligible to receive a small refinery exemption
only if they have previously received an exemption for every compliance year up to the
compliance year for which they seek an exemption.333 The court’s holding hinged on language in
the statute allowing small refineries to petition EPA for “an extension of the exemption.”334 To
interpret this phrase, the court considered the plain meaning of the term “extension” as defined by
various dictionaries.335 These definitions, the court determined, generally involved something
being increased or added to, such as a period of time. The court reasoned, based on these
definitions and “common sense,” “that the subject of an extension must be in existence before it
can be extended.”336 In other words, a small refinery could only extend an exemption it had

326 42 U.S.C. § 7545(o)(9). A refinery is considered a small refinery under the RFS if it does not process more than
75,000 barrels a day of crude oil on average in a calendar year. Id. § 7545(o)(1)(K).
327 Id. § 7545(o)(9)(A)(i).
328 Id. § 7545(o)(9)(A)(ii).
329 Id. § 7545(o)(9)(B). The statute requires EPA to consult with the Department of Energy regarding any such petitions
and to act on the petitions within 90 days of receiving them. Id. EPA considers the information in small refinery
exemption petitions (including the petitioners’ names) and its decisions to grant or deny them as confidential business
information. See, e.g., Adv. Biofuels Ass’n v. EPA, 792 F. App’x 1, 3 (D.C. Cir. 2019).
330 See 40 C.F.R. § 80.1441(e)(2); RFS Small Refinery Exemptions, U.S. ENV’T PROT. AGENCY,
https://www.epa.gov/fuels-registration-reporting-and-compliance-help/rfs-small-refinery-exemptions (last visited Feb.
2, 2021).
331 Id.
332 Renewable Fuels Ass’n v. EPA, 948 F.3d 1206 (10th Cir. 2020).
333 Id. at 1243-49.
334 42 U.S.C. § 7545(o)(9)(B) (emphasis added).
335 Renewable Fuels Ass’n, 948 F.3d at 1244-45. Because the Tenth Circuit had previously determined that small
refinery exemption petitions were informal adjudications not subject to deference under the Chevron framework, the
court did not defer to EPA’s interpretation of the statutory text. Id. at 1244 (citing Sinclair Wyo. Refin. Co. v. EPA, 887
F.3d 986, 992-93 (10th Cir. 2017)).
336 Id.
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received already. In reaching this conclusion, the court distinguished extending an exemption
from renewing or restarting it.337
Based on this understanding, the court held that “a small refinery which did not seek or receive an
exemption in prior years is ineligible for an extension, because at that point there is nothing to
prolong, enlarge, or add to.”338 The court determined that this interpretation comports with the
legislative intent by “funnel[ing] small refineries towards compliance over time” to achieve the
statute’s “aggressive and ‘market forcing’” renewable fuels targets.339 Finding that none of the
three small refineries at issue had received an exemption every year prior to the compliance years
at issue in the petitions, the court held that the petitions were improperly granted.340
The Tenth Circuit also vacated EPA’s decisions based on two flaws it identified in how EPA
evaluated the hardship that the refineries would incur from compliance. First, the court
determined that the statute only allows EPA to consider “disproportionate economic hardship”
caused by RFS compliance—not by other economic factors.341 The court held that EPA had
improperly considered other factors, such as an industry-wide downward trend of lower net
refining margins, in its analysis of the petitions at issue. Second, the court held that when EPA
assesses the hardship from RFS compliance, the agency must account for its pre-existing position
that RIN costs are “passed through” to consumers when it analyzes whether RIN costs generate a
“disproportionate economic hardship.”342 EPA has generally taken the position that refiners that
demonstrate compliance by purchasing RINs rather than blending renewable fuel recoup those
costs in the price of their petroleum blendstocks.343 The court observed that EPA did not address
this RIN cost recoupment theory when analyzing whether RIN costs imposed a disproportionate
economic hardship on the refineries.344 The court concluded that EPA had “failed to consider an
important aspect of the problem” by declining to explain either its changed position or why the
RIN cost recoupment theory did not apply to the circumstances of these specific small refineries
petitions.345
Arguments Before the Supreme Court: In their petition for a writ of certiorari, HollyFrontier
Cheyenne Refining LLC and the other small refineries assert that the Tenth Circuit “interpreted a
term in the RFS so restrictively that it ‘transform[s]’ the RFS ‘into something far beyond what
Congress plausibly intended.’”346 The petitioners argue that the Tenth Circuit’s interpretation of
the small refinery exemption as a temporary measure is contrary to congressional intent to
provide a “safety valve” for small refineries “at any time” and to principles of statutory

337 Id. at 1245.
338 Id.
339 Id. at 1246.
340 Id. at 1249.
341 Id. at 1252-54.
342 Id. at 1255-57.
343 Modifications to Fuel Regulations to Provide Flexibility for E15; Modifications to RFS RIN Market Regulations, 84
Fed. Reg. 10,584, 10,607 (Mar. 21, 2019).
344 Renewable Fuels Ass’n, 948 F.3d at 1257.
345 Id.
346 Petition for Writ of Certiorari at 12, HollyFrontier Cheyenne Refin., LLC v. Renewable Fuels Ass’n, No. 20-472
(Sept. 4, 2020). (quoting Sinclair Wyo. Refin. Co. v. EPA, 887 F.3d 986, 996-97 (10th Cir. 2017)). EPA, the defendant
in the underlying case, did not file a petition for certiorari.
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interpretation.347 The petition notes that several small refineries had already announced they
would change or halt operations after failing to obtain an exemption.348
The biofuels coalition’s brief in opposition to certiorari, filed on December 9, 2020, argues that
the Tenth Circuit correctly decided the case on the merits.349 Furthermore, even if the judgment
could be reversed on the grounds raised by the petitioners, the biofuels coalition claim that the
economic harm anticipated by the petitioners is overstated and in any event that EPA has
alternative means under the statute of addressing any such harm.350
Considerations for Congress: Small refinery exemptions have garnered attention from
stakeholders and Congress as the number of exemptions sought and granted has increased
significantly in the last few years.351 On September 14, 2020, EPA announced that it was denying
a number of small refinery exemption petitions that had been submitted for past compliance years
in response to the Tenth Circuit’s decision.352 If the Supreme Court affirms the Tenth Circuit
decision, the number of small refinery exemptions granted could be significantly reduced from
recent years and small refinery operations may be affected. If the Supreme Court reverses the
Tenth Circuit decision, EPA may continue to grant increasing numbers of small refinery
exemptions, which could affect the amount of renewable fuel blended into transportation fuel.
Congress could address the small refinery exemption to clarify how it should work or choose to
revise the RFS more broadly to address the underlying issues that may be driving an increase in
petitions for small refinery exemptions.
Comprehensive Environmental Response, Compensation, and
Liability Act: Guam v. United States353
On January 8, 2021, the Supreme Court granted review of Guam v. United States, a D.C. Circuit
ruling regarding when a lawsuit to recoup cleanup costs under CERCLA must proceed as a
“contribution action” under Section 113(f) as opposed to a “cost recovery action” under Section
107(a).354 Because the two causes of action have different statutes of limitations, determining
which section (if any) applies, the type of action can sometimes affect whether a lawsuit to
recoup cleanup costs may proceed at all. Joining three of the four other federal courts of appeals
to have reached the issue, the D.C. Circuit held that a prior settlement under a different statute
was sufficient to trigger CERCLA’s contribution provision, thus barring Guam from proceeding
with a cost recovery action, and rendering its claim untimely.

347 Id. at 13-21.
348 Id. at 30.
349 Brief in Opposition to Petition for Certiorari at 24-28, HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels
Ass’n, No. 20-472 (U.S. 2020).
350 Brief in Opposition to Petition for Certiorari at 19-22, HollyFrontier Cheyenne Refining, LLC, No. 20-472.
351 See, e.g., Hearing on “Protecting the RFS: The Trump Administration’s Abuse of Secret Waivers” Before the H.
Comm. on Energy & Comm., 116th Cong. (2019); Adv. Biofuels Ass’n v. EPA, 792 F. App’x 1 (D.C. Cir. 2019); RFS
Small Refinery Exemptions, U.S. ENV’T PROT. AGENCY, https://www.epa.gov/fuels-registration-reporting-and-
compliance-help/rfs-small-refinery-exemptions (last updated Sept. 17, 2020).
352 EPA Takes Action to Protect Integrity of the Renewable Fuel Standard Program, Support American Farmers, U.S.
ENV’T PROT. AGENCY (Sept. 14, 2020), http://www.epa.gov/newsreleases/epa-takes-action-protect-integrity-renewable-
fuel-standard-program-support-american-1.
353 Kate R. Bowers, CRS Legislative Attorney, authored this section of the report.
354 Guam v. United States, 950 F.3d 104 (D.C. Cir. 2020), cert. granted2021 WL 77250 (No. 20-382) (U.S. Jan. 8,
2021).
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Background: CERCLA provides that “potentially responsible parties” (PRPs) may be compelled
to perform or pay for the cleanup of contaminated sites.355 The statute includes two provisions
that allow parties that incur cleanup costs to recoup all or part of their costs from PRPs.
First, Section 107(a)(4)(B) allows any person to sue a PRP to recover “any other necessary costs
of response” that that person has incurred.”356 These lawsuits are known as “cost recovery”
actions. Cost recovery actions under Section 107(a) are subject to a six-year statute of limitations,
which, for remedial actions, begins upon the initiation of the remedial action.357
Second, Section 113(f) allows a person to assert a contribution claim against other PRPs in court
so that those PRPs would bear an equitable share of response costs under certain circumstances.
As relevant to this case, Section 113(f)(3)(B) provides that a party
that has resolved its liability to the United States or a State for some or all of a response
action or for some or all of the costs of such action in an administrative or judicially
approved settlement may seek contribution from any person who is not party to a
settlement.358
Contribution actions under Section 113(f) are subject to a three-year statute of limitations, which
begins on “the date of judgment in any action under [CERCLA] for recovery of [response] costs”
or the “entry of a judicially approved settlement with respect to such costs.”359
A party that may bring a Section 113(f) contribution action must proceed under Section 113(f),
and is precluded from proceeding with a cost recovery action under Section 107(a).360 For this
reason, and because of the differing statutes of limitations, determining whether a party’s claims
are timely and thus may go forward sometimes hinges on how prior settlements to address
contamination at the site are characterized.361
Guam v. United States concerns the cleanup of a site known as the Ordot Dump, which was the
only public landfill on the island of Guam until it closed in 2011. The U.S. Navy, which had
jurisdiction over the island from 1898 until it relinquished sovereignty in 1950, continued to
deposit waste at the site even after 1950.362 After assuming ownership and operation of the Ordot
Dump in 1950, the newly formed civilian government of Guam accepted waste and stored it in

355 42 U.S.C. § 9607(a).
356 Id. § 9607(a)(4)(B). Section 107(a)(4)(A) also allows the United States, states, and tribes to obtain “all costs of
removal or remedial action” from PRPs. Id. § 9607(a)(4)(A).
357 Id. § 9613(g)(2)(A)-(B).
358 Id. § 9613(f)(3)(B).
359 Id. § 9613(g)(3)(B).
360 See Whittaker Corp. v. United States, 825 F.3d 1002, 1007 (9th Cir. 2016) (“[E]very federal court of appeals to
consider the question . . . has said that a party who may bring a contribution action for certain expenses must use the
contribution action, even if a cost recovery action would otherwise be available.”).
In 2007, the Supreme Court clarified in United States v. Atlantic Research Corp. that CERCLA does not bar PRPs from
recovering costs under Section 107(a). 551 U.S. 128, 141 (2007). The Court acknowledged that Sections 107(a) and
113(f) “complement each other by providing causes of action ‘to persons in different circumstances,’” and cautioned
that a PRP “cannot simultaneously seek to recover the same expenses” under both causes of action, thereby “[choosing]
the 6-year statute of limitations for cost-recovery actions over the shorter limitations period for § 113(f) contribution
claims.” Id. at 139 (quoting Consol. Edison Co. of N.Y., Inc. v. UGI Utils., Inc., 423 F.3d 90, 99 (2d Cir. 2005)).
361 See Guam v. United States, 950 F.3d 104, 115 (D.C. Cir. 2020) (“‘Whether or not liability is resolved through a
settlement’ is unanswerable by a ‘universal rule;’ it instead requires examination of ‘the terms of the settlement on a
case-by-case basis.’”) (quoting Bernstein v. Bankert, 733 F.3d 190, 213 (7th Cir. 2013)).
362 Petition for Writ of Certiorari at 7, Guam v. United States, No. 20-382 (U.S. Sept. 16, 2020); Guam v. United States,
950 F.3d 104, 108-09 (D.C. Cir. 2020).
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open ravines there.363 Contaminants from the Ordot Dump leached into a nearby river and its
tributaries, which ultimately flow into the Pacific Ocean.364
EPA sued Guam in 2002, alleging that the discharge of untreated leachate from the Ordot Dump
violated the CWA.365 Guam and EPA resolved that litigation by entering into a consent decree in
2004 that required Guam to pay a civil penalty and close the Ordot Dump.366 The consent decree
reserved the United States’ rights with respect to claims outside the 2002 complaint.367
In 2017, Guam sued the United States, alleging that the Navy was responsible for the
contamination at the Ordot Dump.368 Guam asserted a CERCLA Section 107(a) cost-recovery
claim seeking “removal and remediation costs” related to the landfill, and, in the alternative, a
contribution action pursuant to Section 113(f).369 The United States moved to dismiss Guam’s
complaint, arguing that the 2004 consent decree resolved Guam’s liability for a response action,
thus barring Guam from proceeding with a Section 107(a) cost-recovery action.370 The United
States further argued that Guam could not proceed with a contribution action under Section 113(f)
because that section’s three-year statute of limitations period began with the entry of the 2004
consent decree and thus had already run.371
The U.S. District Court for the District of Columbia denied the United States’ motion to
dismiss.372 The court held that the 2004 consent decree “did not resolve Guam’s liability for the
Ordot Landfill cleanup,” and that Guam therefore could proceed under Section 107(a) because its
claim was outside the scope of Section 113(f)(3)(B).373
On interlocutory review,374 the D.C. Circuit reversed and remanded.375 Joining the Third, Seventh,
and Ninth Circuits,376 and rejecting the Second Circuit,377 the D.C. Circuit held that Section
113(f)(3)(B) “does not require a CERCLA-specific settlement” before a party may pursue a
contribution claim (and therefore may not pursue a cost recovery claim).378 Analyzing the terms
of the 2004 consent decree, the court held that the settlement required Guam to take action that
qualified as a “response action” under CERCLA and “released Guam from legal exposure” for the

363 Brief for the United States in Opposition at 4, Guam v. United States, No. 20-382 (U.S. Dec. 7, 2020).
364 Guam v. United States, 950 F.3d 104, 109 (D.C. Cir. 2020).
365 Complaint for Injunctive Relief, United States v. Guam ¶ 26, No. 02-00022, Doc. No. 1 (D. Guam Aug. 7, 2002).
366 Consent Decree, United States v. Guam, No. 02-00022, Doc. No. 55 (D. Guam Feb. 11, 2004).
367 Petition for Writ of Certiorari at 10, Guam v. United States, No. 20-382 (U.S. Sept. 16, 2020).
368 Complaint, Guam v. United States, No. 1:17-cv-02487, Doc. No. 1 (D.D.C. Mar. 2, 2017).
369 Am. Complaint, Guam v. United States ¶¶ 25, 31, No. 1:17-cv-02487, Doc. No. 7 (D.D.C. May 19, 2017).
370 See Guam v. United States, 950 F.3d 104, 110 (D.C. Cir. 2020).
371 Id.
372 Guam v. United States, 341 F. Supp. 3d 74 (D.D.C. 2018).
373 Id. at 84.
374 See 28 U.S.C. § 1292(b) (setting forth procedures for district courts to certify for interlocutory review an order that
is not otherwise appealable); Guam v. United States, No. 1:17-cv-2487, 2019 WL 1003606, at *1 (D.D.C. Feb. 28,
2019) (certifying interlocutory appeal of the order denying the United States’ motion to dismiss).
375 Guam v. United States, 950 F.3d 104 (D.C. Cir. 2020).
376 See Trinity Indus., Inc. v. Chicago Bridge & Iron Co., 735 F.3d 131, 136 (3d Cir. 2013); Refined Metals Corp. v.
NL Indus. Inc., 937 F.3d 928, 932 (7th Cir. 2019); Asarco LLC v. Atl. Richfield Co., 866 F.3d 1108, 1120-21 (9th Cir.
2017).
377 See Consol. Edison Co. of N.Y., Inc. v. UGI Utils., Inc., 423 F.3d 90, 95 (2d Cir. 2005).
378 Guam v. United States, 950 F.3d at 114.
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CWA claim.379 The consent decree thus resolved Guam’s liability to the United States, triggering
Guam’s right to pursue a contribution claim and barring a cost-recovery claim.380 Because
Guam’s cause of action for contribution expired in 2007, the D.C. Circuit concluded that Guam
“cannot now seek recoupment from the United States” for the contamination at the Ordot
Dump.381
Arguments Before the Supreme Court: The Supreme Court has agreed to review two questions,
which Guam contends are the subject of “acknowledged and longstanding circuit splits”: (1)
whether a non-CERCLA settlement can trigger a Section 113(f)(3)(B) contribution claim, thereby
precluding a cost recovery claim; and (2) whether a settlement that includes liability disclaimers
and reservations of rights can trigger a Section 113(f)(3)(B) contribution claim.382 Guam argues
that the Court should read Section 113(f)(3)(B) as requiring a party to have resolved its liability
“for response actions required or costs imposed under CERCLA.”383 Guam further argues that
only a final, conclusive liability determination triggers Section 113(f)(3)(B), and that the 2004
consent decree is not such a determination because it explicitly disclaimed any finding or
admission of liability and reserved to the United States rights to pursue additional claims against
Guam.384
The United States opposed certiorari.385 The United States argues that CERCLA’s broad
definition of “response” “to encompass any action to ‘remove’ or ‘remedy’ releases of
substances” means that a settlement need not be pursuant to CERCLA to trigger Section
113(f)(3)(B).386 The United States further argues that whether the 2004 consent decree resolved
Guam’s liability for purposes of Section 113(f)(3)(B) is a question of contract law rather than
statutory interpretation, and is not the subject of a circuit split.387 Reading Section 113(f)(3)(B) as
authorizing a suit where a settlement “determines a party’s legal obligation to undertake conduct
that fits within CERCLA’s definition of ‘response action,’” the United States contends that the
D.C. Circuit correctly held that the consent decree satisfied those elements.388
Considerations for Congress: Congress added Section 113 to CERCLA in the Superfund
Amendments and Reauthorization Act of 1986 to clarify that parties that are “liable under
CERCLA [can] seek contribution from other potentially liable parties.”389 Since then, courts have
struggled with the intersection of CERCLA’s cost recovery and contribution provisions.390 While
courts have recognized that Sections 107 and 113 are mutually exclusive, they have also

379 Id. at 116.
380 Id. at 116-18.
381 Id. at 118.
382 Petition for Writ of Certiorari at ii, 2, Guam v. United States, No. 20-382 (U.S. Sept. 16, 2020).
383 Id. at 26.
384 Id. at 30-34.
385 Brief for the United States in Opposition, Guam v. United States, No. 20-382 (U.S. Dec. 7, 2020).
386 Id. at 10-11. The United States disputes the extent of the circuit split over whether Section 113(f)(3)(B) permits
contribution actions based on the resolution of non-CERCLA claims, arguing that the one court to hold to the contrary
did so based on a misreading of the legislative history and subsequently questioned the validity of its own holding. Id.
at 14-15 (discussing Consol. Edison Co. of N.Y., Inc. v. UGI Utils., Inc., 423 F.3d 90, (2d Cir. 2005)).
387 Id. at 18-20.
388 Id. at 15-16.
389 Pub. L. 99-499, 100 Stat. 1613; H.R. Rep. No. 99-253, pt. 1, at 79 (1985).
390 See United States v. Atl. Research Corp., 551 U.S. 128, 131 (2007) (noting that “[c]ourts have frequently grappled
with whether and how PRPs may recoup CERCLA-related costs from other PRPs”).
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acknowledged that “the supposedly sharp distinction between cost-recovery and contribution does
not always play out in practice.”391
Guam v. United States presents an opportunity for the Supreme Court to clarify further when a
PRP must recoup its expenses through a Section 107(a) cost recovery action as opposed to a
Section 113(f) contribution claim. Separate from any action taken by the Court, Congress could
amend CERCLA to specify whether a “response action” must be pursuant to CERCLA in order to
trigger Section 113(f)(3)(B), and whether a settlement that disclaims liability or reserves a party’s
rights can resolve liability sufficient to trigger Section 113(f)(3)(B).
Supreme Court 2020-2021 Term Preview:
Potential EENR Cases
The Supreme Court is reviewing various petitions for a writ of certiorari related to EENR issues
for the 2020-2021 term. Four of the nine Justices must vote to grant certiorari for the Court to
take up review.392 The Court’s rules state that a writ will be granted only for “compelling
reasons,” and explains that a grant is more likely when the petition concerns, among other things,
a split between circuit courts, a departure from previous Supreme Court case law, or an undecided
issue of federal law.393
This section reviews selected petitions for a writ of certiorari or complaints in cases related to
reoccurring or novel EENR issues that have been of congressional interest.394 These petitions
include the scope of the President’s authority to declare national monuments under the Antiquities
Act, a state’s denial of a water quality certification under Section 401 under the CWA, and
eminent domain authority under the Natural Gas Act.
Antiquities Act: Massachusetts Lobstermen’s Association v. Ross395
The Massachusetts Lobstermen’s Association and other fishermen’s associations have asked the
Supreme Court to review the D.C. Circuit’s dismissal of their challenge to President Obama’s
declaration of the Northeast Canyons and Seamounts Marine National Monument under the
Antiquities Act. The fishermen’s associations challenge the proclamation as legally invalid on
two grounds: (1) the Antiquities Act does not extend to the Exclusive Economic Zone (EEZ)
because the EEZ is not “land owned or controlled by the Federal Government,” and (2) the land
reserved for the monument is not the “smallest area compatible” with protecting and managing
the objects protected by the monument.

391 Guam v. United States, 950 F.3d 104, 111 (D.C. Cir. 2020).
392 S. CT. R. 10; Supreme Court Procedures, ADMIN. OFF. OF THE U.S. COURTS, https://www.uscourts.gov/about-federal-
courts/educational-resources/about-educational-outreach/activity-resources/supreme-1 (last visited Feb. 2, 2021).
393 S. CT. R. 10.
394 The Supreme Court is also reviewing petitions related to civil procedure that could implicate EENR suits. See, e.g.,
Petitions for Writ of Certiorari, United States v. Kane Cnty., Nos. 20-96 and 20-82 (U.S. July 24, 2020) (seeking
review of “whether an advocacy organization’s environmental concerns qualify as an “interest” required by Rule
24(a)(2) of the Federal Rules of Civil Procedure for the organization to intervene as of right as a party defendant in a
pending civil action, where no judicial relief could be granted against that organization in the action and its
environmental concerns are unrelated to any claim or defense that the organization could itself assert in the action.”).
395 Erin H. Ward, CRS Legislative Attorney, authored this section of the report.
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Background: The Antiquities Act, enacted in 1906, allows the President to declare “historic
landmarks, historic and prehistoric structures, and other objects of historic or scientific interest
that are situated on land owned or controlled by the Federal Government to be national
monuments.”396 The President may also reserve land as part of a national monument, which must
be limited to “the smallest area compatible with the proper care and management of the objects to
be protected.”397 Presidents have used this authority to designate over 150 national monuments.398
On September 15, 2016, President Obama declared 3.2 million acres of the Atlantic Ocean 100
miles off the coast of New England to be the Northeast Canyons and Seamounts Marine National
Monument.399 The monument is composed of two units—the Canyons Unit and the Seamounts
Unit—and protects three underwater canyons, four seamounts,400 and the surrounding resources
and ecosystems.401 The monument lies in the U.S. Exclusive Economic Zone (EEZ), which is the
area of ocean from 12 to 200 miles off the U.S. coast that President Reagan proclaimed in 1983 to
be subject to the sovereign rights and jurisdiction of the United States under international law.402
The 2016 proclamation prohibited commercial fishing in the monument beginning November 14,
2016, with lobster and red crab fishing to be prohibited seven years later. However, President
Trump removed these prohibitions by proclamation on June 5, 2020.403
The Lower Courts: The Massachusetts Lobstermen’s Association and other fishermen’s
associations challenged the 2016 proclamation in federal court. They alleged that the monument
exceeds the President’s authority (i.e., is ultra vires) because the EEZ is not “land owned or
controlled by the Federal Government” and fails to comply with the statute’s requirement that the
land reserved be the “smallest area compatible” with managing and protecting the objects. The
district court for the District of Columbia dismissed the complaint.404
On appeal, the D.C. Circuit affirmed.405 The court held that areas within the EEZ qualify as “land
owned or controlled by the Federal Government.” First, the court determined that ocean is “land”

396 54 U.S.C. § 320301(a) (emphasis added). For more information on the Antiquities Act, see CRS Report R45718,
The Antiquities Act: History, Current Litigation, and Considerations for the 116th Congress, coordinated by Erin H.
Ward.
397 54 U.S.C. § 320301(b) (emphasis added).
398 Archeology Program, NAT’L PARK SERV., https://www.nps.gov/archeology/sites/antiquities/monumentslist.htm (last
visited Feb. 2, 2021).
399 Proclamation 9496, 81 Fed. Reg. 65,159 (Sept. 21, 2016).
400 According to the National Oceanic and Atmospheric Administration, a seamount is “an underwater mountain
formed by volcanic activity.” What Is A Seamount?, NAT’L OCEANIC & ATMOSPHERIC ADMIN., U.S. DEP’T OF COMM.,
https://oceanservice.noaa.gov/facts/seamounts.html (last updated Apr. 9, 2020).
401 81 Fed. Reg. at 65,161-63.
402 Proclamation 5030, 48 Fed. Reg. 10,605 (Mar. 10, 1983). A 2000 Office of Legal Counsel (OLC) memorandum
concluded that the President’s authority to establish national monuments under the Antiquities Act extended to the
EEZ. Office of Legal Counsel, Dep’t of Justice, Administration of Coral Reef Resources in the Northwest Hawaiian
Islands (Sept. 15, 2000), https://www.justice.gov/file/19366/download. President George W. Bush subsequently relied
on this interpretation to establish the first national monument in the EEZ off the coast of Hawaii in 2006: the
Northwestern Hawaiian Islands Marine National Monument. Proclamation 8031, Establishment of the Northwestern
Hawaiian Islands Marine National Monument, 71 Fed. Reg. 36,443 (June 15, 2006). The proclamation was later
amended to change the name to the Papahānaumokuākea Marine National Monument. Amending Proclamation 8031 of
June 15, 2006, to Read, “Establishment of the Papahānaumokuākea Marine National Monument”, White House (Mar.
2, 2007), https://www.doi.gov/sites/doi.gov/files/archive/news/archive/07_News_Releases/Proc3207.pdf.
403 Modifying the Northeast Canyons and Seamounts Marine National Monument, 85 Fed. Reg. 35,793, 35,794-95
(June 5, 2020).
404 Mass. Lobstermen’s Ass’n v. Ross, 349 F. Supp. 3d 48 (D.D.C. 2018).
405 Mass. Lobstermen’s Ass’n v. Ross, 945 F.3d 535 (D.C. Cir. 2019). The D.C. Circuit affirmed with one “minor
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pursuant to the Supreme Court’s opinion in Alaska v. United States concerning the Glacier Bay
National Monument.406 The court noted that in Alaska, the Supreme Court “made clear that ‘the
Antiquities Act empowers the President to reserve submerged lands.’”407 Second, the court held
that interpreting the Antiquities Act to extend to the ocean does not render the National Marine
Sanctuaries Act, which allows for the designation of marine sanctuaries, a nullity.408 The court
observed that marine sanctuaries can protect larger areas than national monuments, protect areas
based on a wider array of values, and designate areas directly rather than designating objects and
reserving land in connection with those objects.409 Finally, the court determined that the federal
government controls the EEZ for purposes of the Antiquities Act based on three factors: (1)
“significant authority” over the EEZ under international law, (2) “substantial authority” over the
EEZ under domestic law, and (3) “unrivaled” authority over the EEZ (i.e., no other governmental
entity has authority over the area).410
In addition, the court held that the fishermen’s associations had not sufficiently alleged facts to
challenge the monument as not being the “smallest area compatible” with protecting and
managing the monument.411 The court reasoned that the proclamation included the “resources and
ecosystems” as part of the objects protected in the national monument, and the complaint did not
allege any facts showing that areas were included beyond those resources and ecosystems.412
Supreme Court Petition: The fishermen’s associations filed a petition for a writ of certiorari on
July 27, 2020.413 The fishermen’s associations argue that the Court should hear the case because it
presents important federal questions on separation of powers—specifically, how much authority
Congress has delegated to the executive branch—and because the D.C. Circuit holding that the
Antiquities Act extends to the ocean conflicts with holdings by the Fifth and Eleventh Circuits.414
The petitioners also raise substantive considerations.415 They characterize the D.C. Circuit’s
analysis of whether the federal government “controls” the EEZ as a “vague three-factor test” that
does not provide adequate guidance for future courts to apply and is “unadministrable” because
the same logic could be used to extend the Antiquities Act to state and private land.416 The
petition also notes that questions about what constitutes the “smallest area compatible” under the

alteration”: The district court found that that it lacked subject-matter jurisdiction to hear the case, and therefore
dismissed the complaint under Federal Rule of Civil Procedure 12(b)(1). Mass. Lobstermen’s Ass’n, 349 F. Supp. 3d at
55. The D.C. Circuit clarified that the complaint should instead be dismissed pursuant to Rule 12(b)(6) for failure to
state a claim. Mass. Lobstermen’s Ass’n, 945 F.3d at 544-45.
406 Mass. Lobstermen’s Ass’n, 945 F.3d at 541 (citing Alaska v. United States, 545 U.S. 75 (2005)).
407 Id. (quoting Alaska v. United States, 545 U.S. 75, 103 (2005)). The district court had also examined the ordinary
meaning of the term “ocean” and past practice, but the D.C. Circuit found it unnecessary to do so because “[o]n-point
Supreme Court precedent resolves this claim.” Id.
408 Id. at 541-42.
409 Id.
410 Id. at 542-43.
411 Id.
412 Id.
413 Petition for Writ of Certiorari, Mass. Lobstermen’s Ass’n v. Ross, No. 20-97 (2020).
414 Id. at 14-26. The petitioners cite to Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned Sailing Vessel, 569
F.2d 330, 222 & n.1, 337-38 (5th Cir. 1978) and Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel
or Vessels, 636 F.3d 1338, 1341 (11th Cir. 2011) as cases from other circuits that conflict with the D.C. Circuit’s
holding. Petition for Writ of Certiorari, Mass. Lobstermen’s Ass’n, No. 20-97, at 23.
415 Petition for Writ of Certiorari, Mass. Lobstermen’s Ass’n, No. 20-97, at 26-36.
416 Id. at 26-32.
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Antiquities Act has been a frequent source of litigation that would benefit from Supreme Court
clarification.417
Finally, the petitioners argue that the proclamation removing prohibitions on commercial fishing
and lobster and red crab fishing does not moot the case or diminish the need for judicial review.418
To the extent the case is now moot, the petitioners argue that, in accordance with the Court’s 1950
decision in United States v. Munsingwear,419 the D.C. Circuit opinion should be vacated because
the party that prevailed below would be responsible for mooting the case and thereby precluding
further review.420
The United States filed its brief in opposition to certiorari on December 4, 2020.421 The
government contends that the court of appeals reasonably determined that the EEZ is under the
“control” of the federal government for purposes of the Antiquities Act.422 To that end, the
government argues that the petitioners mischaracterized the three factors used by the court of
appeals to assess government control as a “three-part test.”423 The government disagrees with
petitioners that the case raises constitutional separation of power issues because the question is
whether the President exceeded the statutory authority of the Antiquities Act, not constitutional
authority.424 In addition, the government distinguishes the cases that the petitioners claim conflict
with the D.C. Circuit’s holding that the EEZ is controlled by the federal government by noting
that the Fifth Circuit opinion predated the EEZ and the Eleventh Circuit opinion addressed
admiralty jurisdiction rather than interpreting the Antiquities Act.425 With respect to the
petitioner’s mootness arguments, the government asserts that the case may not necessarily be
moot due to the potential for future injury and that, even if it were, the “extraordinary remedy” of
vacatur is not appropriate because the case would not otherwise merit review.426
Considerations for Congress: Massachusetts Lobstermen’s Association v. Ross is one of several
ongoing cases raising questions about the limits of the President’s authority under the Antiquities
Act.427 The state of U.S. public lands and the associated law has changed significantly since the
Antiquities Act was enacted in 1906, including through the enactment of the Federal Land Policy
and Management Act of 1976 (FLPMA) and the declaration of U.S. sovereignty over the EEZ.
Conservation policies and goals have also changed in that time. In light of the multiple lawsuits

417 Id. at 34-35.
418 Id. at 37-38.
419 340 U.S. 36 (1950).
420 Petition for Writ of Certiorari, Mass. Lobstermen’s Ass’n, No. 20-97, at 38-39.
421 Brief for the Federal Respondents in Opposition, Mass. Lobstermen’s Ass’n v. Ross, No. 20-97 (2020). The
National Resources Defense Council also filed a brief in opposition to granting certiorari as intervenor defendants.
Brief in Opposition for Intervenor Defendants, Mass. Lobstermen’s Association v. Ross, No. 20-97 (2020).
422 Brief for the Federal Defendants in Opposition, Mass. Lobstermen’s Ass’n, No. 20-97, at 10.
423 Id. at 10-11.
424 Id. at 14-15.
425 Id. at 19-20.
426 Id. at 22-23.
427 See, e.g., League of Conservation Voters v. Trump, 363 F. Supp. 3d. 1013 (D. Alaska 2019) (vacating President
Trump’s revocation of previous administration’s withdrawal of portions of the Outer Continental Shelf from oil and gas
leasing); Amended and Supplemental Complaint, Hopi Tribe v. Trump, Nos. 17-cv-2590, 17-cv-2605, 17-cv-2606
(D.D.C. Nov. 7, 2019) (challenging President Trump’s proclamation reducing the size of Bears Ears National
Monument); Amended and Supplemental Complaint, The Wilderness Soc’y v. Trump, Nos. 1:17-cv-02587, 1:17-cv-
02591 (D.D.C. Nov. 7, 2019) (challenging President Trump’s proclamation reducing the size of Grand Staircase
Escalante National Monument).
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over the President’s Antiquities Act authority, Congress could choose to amend the act to clarify
the purpose and limits of that power or to modify or remove the authority itself. Specifically,
Congress could clarify which areas are intended to be available for designation and whether the
“smallest area compatible” requirement is judicially reviewable under a factual inquiry.
Natural Gas Act and Eminent Domain: PennEast Pipeline Co. v.
New Jersey428
In PennEast Pipeline Co. v. New Jersey, the Court has been asked to consider whether Section 7
of the Natural Gas Act429 allows a private company “to exercise the federal government’s eminent
domain power to condemn” state-owned land to construct an interstate pipeline project authorized
by the Federal Energy Regulatory Commission (FERC).430 The federal government’s eminent
domain power is implied by the Takings Clause of the Fifth Amendment, which provides that
“private property [may not] be taken for public use, without just compensation.”431 Section 7 of
the Natural Gas Act permits FERC to authorize construction of a natural gas transportation
facility by issuing a “certificate of public convenience and necessity.”432 Under Section 7, a
certificate-holder may exercise the power of eminent domain to secure any rights-of-way
necessary for construction and operation of the facility that the certificate-holder cannot acquire
through contract or negotiation.
Background: PennEast involves a pipeline construction company, the PennEast Pipeline
Company, seeking to exercise eminent domain power under Section 7 to condemn lands in which
the State of New Jersey holds possessory and non-possessory interests. In condemnation
proceedings for these properties before the U.S. District Court for the District of New Jersey, the
State of New Jersey argued that Section 7’s eminent domain power may not be exercised against
state lands because of the state’s sovereign immunity from lawsuits brought by private citizens in
federal court.433 The district court reasoned that because Section 7 delegates the federal
government power of eminent domain to private entities, and because the United States has the
power to sue states, certificate-holders “stand[] in the shoes of the sovereign” and may therefore
exercise eminent domain power against states.434
Third Circuit Opinion: On appeal, the U.S. Court of Appeals for the Third Circuit reversed the
district court decision. Writing for a unanimous panel, Judge Jordan noted that Section 7 lacks
any language suggesting an intent to delegate the United States’ power to sue states to certificate-
holders, and no case law supported the theory that the United States may delegate this power at
all.435

428 Eric N. Holmes, CRS Legislative Attorney, authored this section of the report.
429 15 U.S.C. § 716f.
430 Petition for Writ of Certiorari, PennEast Pipeline Co. v. New Jersey, No. 19-1039 (U.S. Feb. 18, 2020). While the
power of eminent domain rests with the federal government, the United States may legislatively delegate the power to
private entities. See, e.g., Noble v. Oklahoma City, 297 U.S. 481 (1936).
431 U.S. CONST. AMEND. V; Kohl v. United States, 91 U.S. 367 (1876).
432 15 U.S.C. § 716f.
433 In re PennEast Pipeline Co., No. 3:18-cv-01585, 2018 WL 6584893, *8 (D.N.J. Dec. 14, 2018); see U.S. CONST.
AMEND. XI; Hans v. Louisiana, 134 U.S. 1 (1890) (holding that a state may not be sued in federal court by its own
citizens).
434 In re PennEast Pipeline Co., 2018 WL 6584893, at *12.
435 In re PennEast Pipeline Co., 938 F.3d 96 (3d Cir. 2019). For more discussion of the Third Circuit decision, see CRS
Legal Sidebar LSB10359, This Land Is Your Land? Eminent Domain Under the Natural Gas Act and State Sovereign
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Supreme Court Petition: PennEast petitioned for a writ of certiorari in early 2020.436 The
question presented to the Court—whether Section 7 delegates eminent domain authority that may
be exercised against a state—appears at first to be a matter of pure statutory interpretation. But
because states enjoy immunity from legal challenge by private citizens pursuant to the Eleventh
Amendment of the Constitution, this question also turns on whether the Constitution permits
Congress to grant private parties the power to sue states. While Congress may not abrogate states’
sovereign immunity through exercise of its powers under the Commerce Clause,437 the Supreme
Court has long recognized the federal government’s power to sue states.438 Applying the doctrine
of constitutional avoidance, the Third Circuit declined to read a delegation of this power in
Section 7 of the Natural Gas Act “[i]n the absence of any indication in the text of the statute” that
Congress intended to make such a delegation.439 Even so, the court opined that Supreme Court
and circuit court precedent cast doubt on whether Congress could delegate this power at all.440
PennEast does not present an issue on which there is a circuit split. However, the Supreme
Court’s request for briefing from the Solicitor General may suggest that the Court is interested in
the case.441 Additionally, a divided FERC panel issued a declaratory order in January saying that
Section 7 permits certificate-holders to exercise eminent domain authority over state-owned
lands, contradicting the Third Circuit’s decision.442 FERC’s order is being challenged in the D.C.
Circuit, where FERC has asked the court to hold the case in abeyance pending final resolution of
PennEast.443
Considerations for Congress: The effect of Justice Ginsburg’s absence from the Court on
PennEast is difficult to predict. While Justice Ginsburg’s record on environmental issues will
likely draw attention,444 also relevant in the PennEast case is her record on issues of federalism.
While she was on the court, Justice Ginsburg joined several dissents authored by Justice Souter

Immunity, by Eric N. Holmes.
436 Petition for Writ of Certiorari, PennEast Pipeline Co. v. New Jersey, No. 19-1039 (U.S. Feb. 18, 2020). On June 29,
2020, the Court invited the United States Solicitor General to file a brief with the Court expressing the views of the
United States as to whether the Court should grant PennEast’s petition. Order, PennEast Pipeline Co. v. New Jersey,
No. 19-1039 (U.S. June 29, 2020).
437 Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996).
438 See, e.g., Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 310 (1990) (nothing that states “surrendered
[sovereign] immunity, insofar as challenges under federal statutes are concerned, ‘in the plan of the Convention’ when
they agreed to form a union and granted Congress specifically enumerated powers” (quoting THE FEDERALIST NO. 81,
at 567 (Alexander Hamilton) (H. Dawson ed., 1876)).
439 In re PennEast Pipeline Co., 938 F.3d at 112.
440 Id. at 108-109; see Blatchford v. Native Vill. of Noatak, 501 U.S. 775 (1991) (expressing doubt that the United
States may delegate its power to sue states); United States ex rel. Long v. SCS Bus. & Tech. Inst., 173 F.3d 870, 882-
83 (D.C. Cir. 1999) (averring that permitting a qui tam relator to sue states would contradict Blatchford).
441 Cf. Adam Feldman & Alexander Kappner, Finding Certainty in Cert: An Empirical Analysis of the Factors Involved
in Supreme Court Certiorari Decisions from 2001-2015, 61 VILL. L. REV. 795, 807-08 (2017) (noting that “the SG’s
presence is generally one of the strongest indicators of a case’s importance” and estimating that a Solicitor General
brief in support of the petitioner causes a “large increase” in the likelihood that the petition will be granted).
442 PennEast Pipeline Co., 170 FERC 61,064 (Jan. 30, 2020). The panel noted that it lacked authority to address
whether such a delegation was constitutional. Id. at 61,499, para. 55.
443 Motion to Hold Case in Abeyance, Del. Riverkeeper Network v. FERC, No. 20-1264, ECF No. 8 (D.C. Cir. Aug.
25, 2020).
444 E.g., Susan Phillips, Known for Her Record on Women’s and Civil Rights, Justice Ginsburg Also Leaves an
Environmental Legacy on the Supreme Court, STATEIMPACT PA. (Sept. 24, 2020),
https://stateimpact.npr.org/pennsylvania/2020/09/24/known-for-her-record-on-womens-and-civil-rights-justice-
ginsburg-also-leaves-an-environmental-legacy-on-the-supreme-court/.
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that support a narrow reading of the Eleventh Amendment and state sovereign immunity. In
Seminole Tribe of Florida v. Florida, Justice Souter wrote a detailed dissent joined by Justices
Ginsburg and Breyer explaining his view that the Eleventh Amendment was not meant to bar
federal causes of action brought against the states.445 Justice Souter echoed this reasoning in
several later decisions on the authority of private actors to sue states.446 Justice Ginsburg joined
these dissents and, in 2014, wrote in a dissent that the Supreme Court “has carried beyond the
pale the immunity possessed by the States of the United States.”447 No other members of the
Court joined this dissent. The only current member of the Court to have joined Justice Souter’s
earlier dissents is Justice Breyer, who in a 2020 concurrence joined only by Justice Ginsburg
reiterated his “consistently maintained” view that the Supreme Court’s Eleventh Amendment
jurisprudence “went astray” with the Court’s decision in Seminole Tribe.448
If the Court denies PennEast’s petition for certiorari, or grants the petition and affirms the Third
Circuit’s decision, the Court would preserve a ruling that prevents private entities from exercising
the Natural Gas Act’s eminent domain power against states. The Third Circuit’s emphasis on the
“absence of any indication in the text of the statute that Congress intended to delegate” this power
suggests that Congress could potentially amend the Natural Gas Act to permit such an exercise.449
However, a Supreme Court decision holding that this power is nondelegable, as suggested by
Blatchford, would leave Congress without such recourse.450
Clean Water Act Section 401 Water Quality Certification: Montana
v. Washington451
On January 21, 2020, Montana and Wyoming filed a motion requesting that the Supreme Court
review the Washington Department of Ecology’s denial of a CWA certification for a proposed
coal export terminal along the Columbia River. Montana and Wyoming allege that Washington’s
denial of a water quality certification under Section 401 of the CWA was the product of
protectionism and anti-coal bias, and violated the dormant Commerce Clause and the Foreign
Commerce Clause. The Supreme Court has exclusive original jurisdiction over disputes between
states, but has not yet decided whether to hear the case.
Background on CWA Section 401: Under Section 401 of the CWA, any applicant for a federal
license or permit to conduct any activity that may result in any discharge into navigable waters
shall provide the federal licensing or permitting agency with a Section 401 certification.452 The
certification, issued by the state (or other certifying authority) in which the discharge originates,
attests that the discharge will comply with applicable provisions of certain enumerated sections of
the CWA.453 Section 401 provides states, certain tribes, and, in certain circumstances, EPA

445 Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 100 (1996) (Souter, J., dissenting).
446 See Idaho v. Coeur D’Alene Tribe of Idaho, 521 U.S. 261, 297 (1997) (Souter, J., dissenting); Alden v. Maine, 527
U.S. 706, 760 (1999) (Souter, J., dissenting).
447 Michigan v. Bay Hills Indian Cmty., 572 U.S. 782, 831 (2014) (Ginsburg, J., dissenting).
448 Allen v. Cooper, 140 S. Ct. 994, 1008-09 (2020) (Breyer, J., concurring).
449 In re PennEast Pipeline Co., 938 F.3d 96, 112 (3d Cir. 2019).
450 See Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 785 (1991).
451 Kate A. Bowers, CRS Legislative Attorney, authored this section of the report.
452 33 U.S.C. § 1341.
453 Id. The applicable provisions include effluent (i.e., discharge) limitations and standards of performance for new and
existing discharge sources, id. §§ 1311, 1312, 1316; water quality standards and implementation plans, id. § 1313; and
toxic pretreatment effluent standards, id. § 1317.
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(hereinafter referred to collectively as “certifying authorities”) the authority to grant, grant with
conditions, deny, or waive certification of proposed federal licenses or permits that may result in
a discharge into waters of the United States.454 If a certifying authority denies certification, the
federal licensing or permitting agency cannot issue the license or permit.455
The Proposed Project: Lighthouse Resources Inc. and its subsidiary, Millennium Bulk
Terminals-Longview, LLC, sought a Section 401 certification to construct the Millennium Bulk
Terminal, a coal export terminal on the Columbia River in Longview, Washington.456 The
terminal would have the capacity to ship 44 million metric tons of coal each year to foreign
markets, which would mostly come by rail from the Powder River Basin in Montana and
Wyoming.457 In 2017, the Washington Department of Ecology denied the certification
application.458 In addition to finding that the applicant did not provide “reasonable assurance” that
the project would meet applicable water quality standards, the state concluded that construction
and operation of the terminal would result in significant and unavoidable adverse environmental
impacts to social and community resources, cultural resources, tribal resources, rail
transportation, rail safety, vehicle transportation, vessel transportation, noise and vibration, and
air quality.459
The Supreme Court Litigation: On January 21, 2020, Montana and Wyoming filed a motion for
leave to file a bill of complaint in the Supreme Court.460 Montana and Wyoming contend that
Washington’s denial of the Section 401 certification resulted in a discriminatory closure of
Washington’s ports to coal from Montana and Wyoming, in violation of the dormant Commerce

454 Id. § 1341(a), (d).
455 Id. § 1341(a)(1).
456 Brief in Support of Motion for Leave to File Bill of Complaint, Montana & Wyoming v. Washington, No. 22O152,
at 8 (U.S. Jan. 21, 2020).
457 Id.
458 Letter from Maia D. Bellon, Director, Washington Department of Ecology, to Kristin Gaines, Millennium Bulk
Terminals-Longview, LLC (Sept. 26, 2017), https://ecology.wa.gov/DOE/files/83/8349469b-a94f-492b-acca-
d8277e1ad237.pdf.
459 Id. See also Millennium Bulk Terminals – Longview Final SEPA Environmental Impact Statement S.6 (Apr. 2017),
available at https://www.millenniumbulkeiswa.gov/assets/introduction5.17.pdf. Additionally, other state and county
agencies denied consent to sublease state-owned aquatic lands comprising a portion of the site and an application for
shoreline use permits under state law. Nw. Alloys, Inc. v. Wash. Dep’t of Nat. Res., 447 P.3d 620, 626-27 (Wash. Ct.
App. 2019); Millennium Bulk Terminals-Longview, LLC v. Washington, No. 52215-2-II, 2020 WL 1651475 (Wash.
Ct. App. Mar. 17, 2020).
460 Bill of Complaint, Montana & Wyoming v. Washington, No. 22O152, ¶ 44 (U.S. Jan. 21, 2020). See supra note 5.
Prior to Montana and Wyoming’s Supreme Court filing, the Section 401 certification denial had already generated
several lawsuits in federal and state court. The U.S. District Court for the Western District of Washington dismissed
part of Lighthouse’s suit challenging the certification denial, and stayed the remaining part to allow state court
litigation to proceed. Lighthouse Res. Inc. v. Inslee, 429 F. Supp. 3d 736 (W.D. Wash. 2019); Order Staying Case,
Lighthouse Res. Inc. v. Inslee, No. 3:18-cv-05005-RJB, 2019 WL 1572605, at *1-2 (W.D. Wash. Apr. 11, 2019).
Lighthouse also challenged the denial of consent to the sublease of state-owned aquatic lands and the denial of the
shoreline use permit. The Washington Court of Appeals upheld both denials. Nw. Alloys, Inc. v. Wash. Dep’t of Nat.
Res., 447 P.3d 620, 626-27 (Wash. Ct. App. 2019), pet. for review denied, 194 Wash.2d 1019, 455 P.3d 138 (Table)
(Wash. 2020); Millennium Bulk Terminals-Longview, LLC v. Washington, No. 52215-2-II, 2020 WL 1651475 (Wash.
Ct. App. Mar. 17, 2020), pet. for review denied, 195 Wash. 2d 1032, 468 P.3d 615 (Table) (Wash. 2020). The U.S.
District Court for the Western District of Washington also dismissed Lighthouse’s challenge to the sublease denial.
Order on Defendant Hilary Franz’s Motion for Summary Judgment, Lighthouse Res. Inc. v. Inslee, No. 3:18-cv-05005-
RJB, 2018 WL 5264334 (W.D. Wash. Oct. 23, 2018). Lighthouse has appealed the district court’s stay order in the U.S.
Court of Appeals for the Ninth Circuit. Lighthouse Res., Inc. v. Inslee, No. 19-35415 (9th Cir. filed May 10, 2019).
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Clause and the Foreign Commerce Clause.461 They allege that by denying Section 401
certification, Washington blocked the construction of the port based on a desire to protect exports
of Washington agricultural products over out-of-state coal, a bias against coal, and an unjustified
concern about the extraterritorial effect on GHG emissions of shipping coal to overseas
markets.462 According to Montana and Wyoming, Washington’s denial of a Section 401 water
quality certification for those reasons imposes a burden on interstate commerce and constitutes an
impermissible attempt to regulate conduct outside its borders in violation of the dormant
Commerce Clause.463 They also allege that the denial impedes their ability to engage in foreign
commerce and infringes on the federal government’s exclusive authority to regulate foreign
commerce, in violation of the Foreign Commerce Clause.464
In response, Washington argues that Congress expressly authorized states to deny certification
under CWA Section 401, and so Montana and Wyoming may not challenge the denial under the
dormant Commerce Clause.465 Washington further argues that the Section 401 denial does not
amount to an embargo against coal from Montana and Wyoming because millions of tons of coal
already move through Washington, including at the site of the proposed project.466 Washington
also disputes Montana and Wyoming’s allegation that the certification denial was protectionist
and discriminatory.467 Finally, Washington contends that the certification denial does not violate
the Foreign Commerce Clause for the same reasons it does not violate the dormant Commerce
Clause, and also because it does not affect the federal government’s ability to speak with one
voice when regulating foreign commerce.468
Considerations for Congress: The Supreme Court has not yet decided whether to hear the case.
On October 5, 2020, the Court issued an order seeking the Solicitor General’s views.469 The
potential participation of the United States is significant because the litigation over the
Millennium Bulk Terminal is unfolding against a backdrop of extensive changes to EPA’s
interpretation of CWA Section 401. On July 13, 2020 EPA published a new rule (the Section 401
Rule) to replace the agency’s implementing regulations for Section 401, which were promulgated

461 Bill of Complaint, Montana & Wyoming v. Washington, No. 22O152, ¶ 1 (U.S. Jan. 21, 2020).
462 Id. ¶¶ 39, 44, 49.
463 Id. ¶¶ 48-57. The Commerce Clause of the Constitution vests Congress with the authority “[t]o regulate Commerce
with foreign Nations, and among the several States, and with the Indian Tribes[.]” U.S. CONST. art. I, § 8, cl. 3.
Although the Commerce Clause does not expressly restrain states, courts have interpreted it as prohibiting states from
discriminating against interstate commerce unless Congress authorizes such discrimination. See Dep’t of Revenue of
Ky. v. Davis, 553 U.S. 328, 337-38 (2008). The implicit restraint on state authority is described as the dormant
Commerce Clause. See Cong. Research Serv., Dormant Commerce Power: Overview, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artI-S8-C3-1-4-1/ALDE_00001060/ (last visited Feb. 2, 2021).
464 Bill of Complaint, Montana & Wyoming v. Washington, No. 22O152, ¶¶ 59-65 (U.S. Jan. 21, 2020).
465 Brief in Opposition for Motion for Leave to File Complaint, Montana & Wyoming v. Washington, No. 22O152, at
20-21 (U.S. Jan. 21, 2020) (quoting Maine v. Taylor, 477 U.S. 131, 138 (1986), and Ne. Bancorp, Inc. v. Bd. of
Governors of Fed. Reserve Sys., 472 U.S. 159, 174 (1985)).
466 Id. at 23-27.
467 Id. at 27-33.
468 Id. at 34. Washington also argues that the case is not appropriate for Supreme Court review because the denial of a
Section 401 certification “does not directly implicate any other State’s sovereign or quasi-sovereign interests” but
instead is “at its core . . . a challenge to the denial of a private company’s permit application to build a privately owned
project.” Brief in Opposition for Motion for Leave to File Complaint, Montana & Wyoming v. Washington, No.
22O152, at 13 (U.S. Jan. 21, 2020). Washington further argues that Montana and Wyoming’s claims are already the
subject of litigation in federal district court, id. at 14-15, and that Montana and Wyoming lack standing to challenge the
certification denial, id. at 16-19.
469 Order, Montana & Wyoming v. Washington, No. 22O152 (U.S. Oct. 5, 2020).
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in 1971.470 The Section 401 Rule includes numerous changes to existing regulations and practice
to narrow the role of certifying authorities and the scope of their review when acting on Section
401 certification requests.471
Some project proponents have expressed frustration with how some states have implemented their
Section 401 certification authority, have accused states of misusing Section 401 to block certain
projects, and have advocated for changes to the CWA or implementing regulations and guidance
to limit states’ authority under Section 401.472 The Trump Administration had also been critical of
some states’ denials of Section 401 certifications.473 At the same time, many states assert that
Section 401 certification allows them to manage and protect the quality of waters within their
states, and that efforts to limit state authority under Section 401 are contrary to the principles of
cooperative federalism upon which the CWA is based.474
The Section 401 Rule is the subject of lawsuits in three federal district courts.475 Depending on
how long it takes for courts to decide those lawsuits and any appeals, the Supreme Court may
have decided whether to take Montana and Wyoming’s case and may even have issued a ruling
before the federal district courts have resolved the Section 401 lawsuits. A ruling in favor of
Montana and Wyoming could support EPA’s contention that the scope of certification is narrow,
and thus would strengthen EPA’s position in the cases challenging the Section 401 Rule.
Furthermore, while Washington denied Lighthouse’s water quality certification application and
Montana and Wyoming filed their complaint before EPA issued the Section 401 Rule, EPA’s
recent criticism of broader-based certification denials476 may encourage the Court to scrutinize
more closely the basis for Washington’s denial of the Millennium coal terminal certification. On

470 Clean Water Act Section 401 Certification Rule, 85 Fed. Reg. 42,210 (July 13, 2020). EPA also issued updated
Section 401 guidance on June 7, 2019. EPA, Clean Water Act Section 401 Guidance for Federal Agencies, States and
Authorized Tribes (June 7, 2019), https://www.epa.gov/cwa-401/clean-water-act-section-401-guidance-federal-
agencies-states-and-authorized-tribes. EPA concluded that retaining the guidance after issuing the Section 401 Rule
could cause confusion, and rescinded the guidance coincident with the Section 401 Rule’s effective date. 85 Fed. Reg.
at 42,214.
471 For further discussion of Section 401 and the Section 401 Rule, see CRS Report R46615, Clean Water Act Section
401: Overview and Recent Developments, by Laura Gatz and Kate R. Bowers.
472 See, e.g., Comments of the Association of American Railroads (May 24, 2019); Comments of the Interstate Natural
Gas Association of America (May 24, 2019). Both letters are available at EPA Clean Water Act Section 401 Water
Quality Certification Pre-Proposal Recommendations, Docket No. EPA-HQ-OW-2018-0855. See also Press Release,
American Petroleum Institute, API-NY Applauds Second Circuit Court Decision, Says It’s Good News for Pipelines
Across New York (Feb. 5, 2019), https://www.api.org/news-policy-and-issues/news/2019/02/05/apiny-applauds-
second-circuit-court-decision-says-its-good-news-for-pipelines-ac; Press Release, American Gas Association, EPA
Proposes Updates to Certification Process for Natural Gas Infrastructure (Aug. 9, 2019),
https://www.aga.org/news/news-releases/epa-proposes-updates-to-certification-process-for-natural-gas-infrastructure/.
473 Press Release, EPA, EPA Issues Final Rule that Helps Ensure U.S. Energy Security and Limits Misuse of the Clean
Water Act (June 1, 2020), https://www.epa.gov/newsreleases/epa-issues-final-rule-helps-ensure-us-energy-security-
and-limits-misuse-clean-water-0.
474 See, e.g., Letter from Western Governors’ Association et al. to Honorable John Barrasso and Honorable Tom
Carper, November 18, 2019, https://www.acwa-us.org/wp-content/uploads/2019/11/Coalition-Letter-Clean-Water-Act-
Section-401-Legislation-11-18-19.pdf.
475 In re Clean Water Act Rulemaking, No. 3:20-cv-04636 (N.D. Cal.) (consolidating Am. Rivers v. Wheeler, No. 3:20-
cv-04636 (N.D. Cal. filed July 13, 2020); California v. Wheeler, No. 4:20-cv-04869 (N.D. Cal. filed July 21, 2020);
and Suquamish Tribe v. Wheeler, No. 3:20-cv-06137 (N.D. Cal. filed Aug. 31, 2020)); Del. Riverkeeper Network v.
EPA, No. 2:20-cv-03412 (E.D. Pa. filed July 13, 2020); S.C. Coastal Conservation League v. Wheeler, No. 2:20-cv-
03062 (D.S.C. filed Aug. 26, 2020).
476 Clean Water Act Section 401 Certification Rule, 85 Fed. Reg. 42,210, 42,256 (July 13, 2020).
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the other hand, a ruling in favor of Washington may, if it addresses the appropriate scope of
certification review, lead district courts to view the Section 401 Rule with greater skepticism.
Congress has recently shown interest in the implementation of Section 401. On November 19,
2019, the Senate Committee on Environment and Public Works held a legislative hearing on
potential reforms to Section 401, including legislation introduced by the Committee Chairman (S.
1087).477 S. 1087 and H.R. 2205, identical bills titled the Water Quality Certification
Improvement Act of 2019, would amend Section 401 to narrow the scope of water quality
impacts that certifying authorities may consider in their certification review, as well as the scope
of conditions they may impose.

Author Information

Linda Tsang, Coordinator
Stephen P. Mulligan
Legislative Attorney
Legislative Attorney

Kate R. Bowers
Adam Vann
Legislative Attorney
Legislative Attorney

Eric N. Holmes
Erin H. Ward
Legislative Attorney
Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
material from a third party, you may need to obtain the permission of the copyright holder if you wish to
copy or otherwise use copyrighted material.

477 Hearing on S. 1087, the Water Quality Certification Improvement Act of 2019, and Other Potential Reforms to
Improve Implementation of Section 401 of the Clean Water Act: State Perspectives Before the S. Comm. on Env’t &
Pub. Works, 116th Cong. 145 (2019).
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