International Environmental and Resources Law Committee Report

Covid-19 and Ukraine Impacts

A. 2022 Sustainable Development Goals Report

The United Nation’s (U.N.) Sustainable Development Goals Report 2022 reflects the adverse impacts of the third year of the COVID-19 pandemic and the war in Ukraine on the achievement of the Sustainable Development Goals (SDGs). According to the report, the confluence of conflict, COVID-19, climate change, and growing inequalities is creating spin-off impacts on all of the SDGs, reversing years of progress and further derailing the transition to green economies. For example, COVID-19 has reversed more than four years of progress against poverty, which has been further derailed by high inflation and the impacts of war in Ukraine in the past year. The report also emphasizes the adverse impact of COVID-19 on global data tracking, and calls for an urgent rescue effort for the SDGs in order to achieve the 2030 Agenda for Sustainable Development.

B. UNEP on the Environmental Impact of the Conflict in Ukraine

In October, the U.N. Environment Programme (UNEP) released a preliminary review of the environmental impact of the conflict in Ukraine. This report attempts to survey the adverse environmental and human health impacts precipitated by the Russian invasion of Ukraine that began on February 24. The ongoing nature of the conflict prevented the UNEP from confirming and assessing the severity of the consequences from all specific environmental impacts of the conflict in this preliminary report, and the report calls for a comprehensive “multifaceted environmental impact assessment” building on its preliminary findings. Using a combination of various national and international sources and remote environmental impact monitoring in conjunction with the Government of Ukraine, however, the report identified significant environmental impacts and confirmed the environmentally destructive nature of armed conflict. The following is a summary of UNEP’s findings.

Damage to chemical industries is a major environmental hazard of armed conflict. The Russian invasion of Ukraine has thus far resulted in at least seven confirmed incidents involving the release of toxic industrial chemicals (TICs) from industrial facilities. Because the conflict is ongoing, it has not yet been possible to account fully for the environmental and health impacts of these releases. While it has not yet been confirmed, there has also been social media documentation of Russia’s deliberate release of chemical warfare agents (CWAs), further heightening environmental and health risk of chemical exposure. While the exact extent of damage is not yet known, Russian missile strikes have also damaged Ukrainian fuel reserves and oil refineries, releasing chemicals and other pollutants into the air and soil.

The Russian invasion has also had significant impacts regarding waste, as attacks at and near waste storage facilities threaten catastrophic effects on public health and the environment. For example, a hazardous waste facility in Ternopyl oblast (province) was the victim of a Russian missile strike in April that resulted in the release of mineral fertilizers into the soil and water, leading to unsafe drinking water. There have also been social media reports of damage to other hazardous pesticide storage facilities. Another source of hazardous waste is animal by-products and biological waste caused by the loss of fifteen percent of Ukraine’s livestock amidst the invasion as farms have been unable to access their farms, procure animal food, or provide animals with needed veterinary care. Large numbers of dead animals have been buried in uncertified locations without proper disposal methods, leading to potential groundwater and soil contamination if left unaddressed.

Regarding radioactive waste, the Russian military took control of the Chernobyl nuclear power plant and other nuclear facilities in the Chernobyl Exclusion zone, causing an increase in background radiation. Rocket attacks near the major cities of Kyiv and Kharkiv targeting a radioactive waste disposal site and nuclear reactor respectively underscore the dangers of potential exposure to radioactive waste. There have also been reports of incidents near tailing facilities, which are often located close to water bodies or residential areas. Not only has the conflict threatened the release of waste potentially harmful to human health and the environment, but military activities and the destruction caused by war dramatically increase the amount of waste generated in the country—including scrap metal, military equipment, building debris, and shell fragments. In debris from buildings damaged or destroyed in cities and towns, there is also a significant risk of the presence of asbestos due to its historical widespread use in Ukraine. Proper collection, transportation, and disposal of solid waste has also become more difficult and in some cases impossible.

Significant damage to critical infrastructure in Ukrainian cities and towns not only leads to debris, displacement, and difficulty providing municipal services, but Russian attacks have damaged water supply and wastewater treatment facilities in several urban areas including Mykolaiv, Chernihiv, and Severodonetsk, leading to difficulty providing safe drinking water and causing the release of untreated wastewater into water bodies. Wastewater treatment facilities have also been disrupted on large animal farms, threatening significant environmental impact. Food insecurity has also resulted from physical degradation, chemical pollution, and exploded ammunition affecting agricultural lands. Meanwhile, as the invasion continues, soil recultivation is impossible in most affected areas. Damage to food and grain storage facilities have not only resulted in food insecurity, but have polluted nearby waters.

Finally, the Russian invasion of Ukraine has been destructive for biodiversity and natural resources. The conflict has had impacts on twenty percent of nature conservation areas in Ukraine, or roughly one million hectares of protected land. The Nature Reserve Fund for Ukraine had identified 812 protected sites as currently threatened by the conflict, including national parks, biosphere reserves, Ramsar sites, and nature reserves. For example, shelling has caused fires in nature reserves, including a primeval forest in Svyate and Kinburn Spit Reserve, which includes the largest field of wild red orchids in Europe. Lastly, the conflict has resulted in the deaths of thousands of animals—including farm animals, captive animals in zoos, domestic pets, and several thousand dolphins in the Black Sea alone.

The UNEP’s preliminary review of the Environmental Impact of the Conflict in Ukraine offers a wide-ranging and sobering view of the devastating impact of the Russian invasion on human health and the environment. The report warns of potential impacts that could worsen as the conflict continues, underscoring the severe environmental degradation associated with armed conflict. The UNEP is continuing to collect data and information on the Ukrainian conflict’s impact for future assessments.

Climate Change and Emissions

A. COP27

On November 6, the twenty-seventh Conference of the Parties of the UNFCCC, COP27, began in Sharm el-Sheikh, Egypt. Although originally scheduled to end on the eighteenth, negotiations were extended to Sunday, November 20 as States struggled to make a deal. Topics of discussion at the conference included a review of the global stocktake, climate technology, climate adaptation plans, an agricultural and food security plan, carbon emission reductions, climate loss and damage to vulnerable countries, among others. The conference resulted in a “package of decisions” that included an implementation plan and agreements regarding climate change mitigation, adaptation, technology, and funding.

In relation to climate change mitigation, the conference reaffirmed the goal of limiting global temperature rise 1.5 degree Celsius by the end of the century, with conference discussion acknowledging the insufficiency of current action. Although the emissions curve is bent downward from recent efforts, the predicted temperature rise is 2.5 degrees Celsius. Fossil fuel use reduction agreements were limited to coal, following in the footsteps of the COP26 Glasgow agreement. Further greenhouse gas emission goals still fell short of meeting the Paris Agreement goals, with states stepping back from prior commitments. Discussion between the United States and China resumed during COP27, after being on pause since August 2022. The United States and China currently contribute over fifty percent of global greenhouse gas emissions combined, and the restart of discussions between the two major emitters is vital to climate decisions moving forward.

The most relevant outcome was the establishment of a “Loss and Damage” fund for vulnerable countries, the agreement of which both extended and closed the conference. The fund will be dedicated to providing monetary assistance to developing countries in relation to losses and damage caused by climate change. States also agreed upon the creation of a transitional committee, with plans to operationalize the fund by COP28 next year. Although seen as a major win for developing countries, the agreement itself does not specify who should pay into the fund or who will benefit.

B. CORSIA

The year 2022 marked several significant developments for the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA), a global market-based measure (MBM) adopted by the member states of the International Civil Aviation Organization (ICAO) that caps the net CO₂ emissions of international flights at their 2019 emission level. In October, the 41st Session of the Assembly of ICAO met in Montréal. As stated in ICAO’s Assembly Resolution A41-22, CORSIA aims “to avoid a possible patchwork of duplicative State or regional MBMs, thus ensuring that international aviation CO₂ emissions should be accounted for only once.” In doing this, CORSIA does away with the piecemeal international aviation emission regulatory initiatives and continues with the long-standing goal of the Chicago Convention to harmonize international civil aviation in order “to avoid friction and to promote that cooperation between nations.” As of January 1, 2023, 115 of the 193 ICAO member states have announced their participation in CORSIA.

This October, the 41st Session of the Assembly reaffirmed the revised CORSIA baseline. Initially, CORSIA planned to use an emission baseline that averaged the years 2019 and 2020. This decision was driven by the impact COVID-19 had on international aviation and the significant drop in international flights during the pandemic. “In 2021, CO₂ emissions rose above 2020 levels by about nine percent to a total of about 290 million ton[]s. Despite the small increase, total emissions in 2021 continued to be significantly lower (fifty-two percent) compared to the 2019 levels.” This means that no offsets would be required, as 2019 levels have yet to be surpassed. In 2020, the Environmental Defense Fund predicted that “this change would eliminate all offset requirements for three to five years.” ICAO affirmed its decision to change the baseline year to 2019 only, in part to prevent “imposing an unexpected and severe economic burden on an already extremely weakened airline industry.”

The reaffirmation of 2019 as the CORSIA baseline is a substantial hit to aggressive greenhouse gas reduction from aviation emissions. Nonetheless, other changes made to CORSIA during the 41st Assembly partially counteract the removal of 2020 from emissions calculations, primarily that “ICAO set eighty-five percent of 2019 emissions as CORSIA’s baseline from 2024 until the end of the scheme in 2035: a significantly more ambitious target than originally planned.” While this larger gap from the baseline will require increased offsets to be purchased in the future and should accelerate international aviation’s achievement of becoming net-zero, the rate of emissions in the upcoming year will determine how soon CORSIA offset requirements will come into play.

C. Carbon Border Adjustment Mechanism (CBAM)

As of January 2023, there are 195 signatories and 195 parties to the Paris Agreement to limit CO2 emissions. However, the Paris Agreement permits countries to set their own ambitions within certain parameters. The EU, in particular, has stated its ambition to cut emissions by 2030 by fifty-five percent in comparison with 1990 levels. This commitment has been made as part of the EU Green Deal, which is a comprehensive package of tax and non-tax measures.

Designed in compliance with World Trade Organization (WTO) rules and other international obligations of the EU, the Carbon Border Adjustment Mechanism (CBAM) is a climate measure that should prevent the risk of “carbon leakage” (i.e. companies based in the EU could move carbon-intensive production abroad to take advantage of lax standards, or EU products could be replaced by more carbon-intensive imports), and support the EU's increased ambition on climate mitigation. “The CBAM will equalize the price of carbon between domestic products and imports and ensure that the EU's climate objectives are not undermined by production relocating to countries with less ambitious policies.”

The landmark tool “will be phased in gradually and will initially apply only to a selected number of goods at high risk of carbon leakage: iron and steel, cement, fertilizer, aluminum and electricity generation.” The agreement is still provisional, and details remain to be ironed out by member states and other institutions. “But if all goes according to plan, CBAMs will come into force on a trial basis from next October.”

Human Rights and the Environment

A. UN General Assembly Declares Human Right to a Healthy Environment

In July, the UN General Assembly declared that every person has a right to a healthy environment in a resolution passed at UN Headquarters in New York City. Although “[t]he resolution is not legally binding on the 193 Member States,” advocates hope the declaration will prompt Member States to enshrine the right to a healthy environment in national constitutions and regional treaties. Back in 2010, a similar decree recognizing the right to sanitation and clean water was a catalyst for many national governments to add drinking water protections to their constitutions. The move by the General Assembly follows the UN Human Rights Council’s declaration in April that access to “a clean, healthy, and sustainable environment is a human right.”

B. Escazú Agreement

“Latin America and the Caribbean is one of the regions with the fewest mechanisms for transparency and access to environmental information in the world. It also has one of the highest incidences of crimes against environmental [human rights] defenders [(EHRDs)].” Against this background, on March 4, 2018 Latin America and Caribbean countries adopted the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters, also known as the Escazú Agreement, initiated at the 2012 United Nations Conference on Sustainable Development (Rio+20) and rooted in the tenets of Principle 10 of the 1992 Rio Declaration on Environment and Development. To date the treaty has been signed by twenty-four countries in the Latin America and Caribbean region and only ratified by thirteen, including Brazil, Chile, Argentina, Mexico, Colombia, Costa Rica, among others.

The Escazú Agreement is the first legally binding instrument in the world to include provisions on EHRDs and is also the first environmental agreement adopted in Latin America and the Caribbean, which “aims to combat inequality and discrimination and guarantee the rights of every person to a healthy environment and to sustainable development” by ensuring the “right of all persons to have access to information in a timely and appropriate manner, to participate significantly in making the decisions that affect their lives and their environment and to access justice when those rights have been infringed.”

Under the agreement, each country shall ensure the right to public participation in environmental processes and shall guarantee mechanisms for public participation in: decision-making processes, revisions, re-examinations or updates of projects and activities, and processes for granting environmental permits that have or may have an impact on the environment and health. Additionally, each country shall promote public participation in: land use planning processes, development of policies, strategies, plans, programs, rules, and regulations that have or may have a significant impact on the environment and health.

Lastly, the Escazú Agreement requires each country to prevent and investigate attacks against those who protect and defend environmental rights, acknowledges the significance of the work carried out by EHRDs, and obliges each country to establish guidelines on appropriate and effective measures to ensure their safety while exercising their rights. Since being adopted, its ratification process has been slow due to political turmoil, the COVID-19 pandemic, and slow domestic ratification processes.

International Trade, Financial Institutions, and Corporate Social Responsibility

A. Corporate Sustainability Reporting Directive (CSRD) in the EU

In November, the European Parliament and Council of the European Union formally adopted the Corporate Sustainability Reporting Directive (CSRD), which entered into force on January 5, 2023. The CSRD modernizes and strengthens reporting requirements for environmental, social, and governance (ESG) information that companies must disclose, expanding the scope of companies required to report to include a broader set of large companies and listed small and medium-size enterprises (SMEs). Following political agreement reached in June by the European Parliament and Council on the European Commission’s proposal for a CSRD, the European Regulatory Financial Advisory Group (EFRAG) released its first set of draft European Sustainability Reporting Standards (ESRS) in November.

B. USMCA Invoked in Several Disputes Over Natural Resources

In July, the United States requested dispute settlement consultations with Mexico under Chapter 31 of the United States-Mexico-Canada Agreement (USMCA). The U.S. complaint argued that Mexico’s energy policies favor state-owned electrical utility Comisión Federal de Electricidad and state-owned oil producer Petróleos Mexicanos over U.S. produced energy, investors, and service producers. Shortly after, Canada joined the U.S. complaint and initiated its own dispute settlement consultations with Mexico. Entered into force in 2020, the USMCA is a multilateral agreement that substitutes the 1994 North American Free Trade Agreement (NAFTA) and retains a level playing field in trade among the three countries. Under the USMCA, a party may request arbitration seventy-five days after dispute settlement consultations begin. When the option to request arbitration opened in early October, the United States and Mexico mutually agreed to extend negotiations.

Additionally, Mexico continues with its plans to ban genetically modified corn by phasing out its use by January 2024, a policy which the United States has suggested may not be compliant with the USMCA and which Canada claims is not “science-based.” According to a decree signed by Mexican President Andrés Manuel López Obrador in 2020, the ban aims to protect Mexico’s native corn varieties and human health. Currently, most U.S. corn is bred to be more productive, insect-resistant, drought-tolerant, and used with glyphosate, the most widely used herbicide in the world. The ban would apply to both white and yellow corn, the latter of which Mexico imports large quantities to feed livestock. U.S. agribusiness and several lawmakers have pushed U.S. Trade Representative Katherine Tai to consider the possibility of disputing the issue under the USMCA, a suggestion also raised by the U.S. Secretary of Agriculture Tom Vilsack. While U.S. agribusiness argues that the USMCA requires Mexico to approve goods produced using agricultural biotechnology, the USMCA explicitly states that nothing in the agreement requires countries to reach a specific conclusion. Discussions regarding both Mexico’s energy policies and its proposed ban on genetically modified corn continue to be ongoing.

Biodiversity

A. COP15 and the Kunming-Montreal Global Biodiversity Framework (GBF)

In December, Parties to the UN Convention on Biological Diversity (CBD) gathered to determine the Post-2020 Biodiversity Framework, a document that establishes action-based targets to jointly safeguard nature and secure our common future through 2030. Following multiple delays due to COVID-19 and a virtual meeting of the parties for Part 1 in October 2021, Part 2 of the UN Biodiversity Conference (COP15) ran from December 7-19 in Montreal, Canada. There, 188 countries adopted the Kunming-Montreal Global Diversity Framework (GBF), a landmark deal including four goals and 23 targets to halt and reverse biodiversity loss by 2030. The global targets for 2030 included, inter alia, effective conservation and management of at least thirty percent of Earth’s lands, inland waters, coastal areas, and oceans; at least $500 billion annual phaseout of harmful government subsidies; and cutting food waste in half. In addition to the GBF, the parties approved a series of related agreements on implementation, including a monitoring framework; mechanisms for planning, monitoring, and reporting; capacity-building and development of technical and scientific cooperation; resource mobilization; and digital sequence information on genetic resources.

B. Biodiversity Beyond National Jurisdiction (BBNJ)

The Treaty of the High Seas, or the BBNJ Treaty, continues to be negotiated under the auspices of the United Nations and within the framework of the United Nations Convention on the Law of the Sea (UNCLOS). On February 11, at the One Ocean Summit in Brest, France, the EU launched a high ambition coalition regarding Biodiversity Beyond National Jurisdiction (BBNJ). The coalition assembled parties committed to ambitious results for the ongoing BBNJ negotiations, which are to be implemented by the Treaty of the High Seas. In the coalition’s declaration, it affirmed the parties’ commitment to negotiating some key elements of the BBNJ Treaty and called for the treaty to be completed by the end of 2022. The coalition’s goal of completing the BBNJ Treaty by the end of 2022 was not achieved.

From March 7 to 18, 2022, the fourth session of the Intergovernmental Conference on Marine Biodiversity Areas Beyond National Jurisdiction was held. During the fourth session progress was made on issues such as environmental impact assessments, marine protected areas (MPAs), capacity building, and benefits sharing. However, an agreement was still not made.

From August 15 to 26, a fifth session of the Intergovernmental Conference on Marine Biodiversity Areas Beyond National Jurisdiction was held, and on the last day the Conference decided to suspend the session and continue at a later date. Although the first portion of the fifth session saw progress, impasses on core issues remained including “the need to develop standards and guidelines for environmental impact assessments, the scope and sharing of benefits from MGR, and appropriate institutional mechanisms, including a robust, accessible and equitable financial mechanism for implementation and associated needs-based capacity building.” The fifth session is set to resume February 20 to March 3, 2023.

Environmental Protection and Conservation

A. U.N. Environment Assembly Resolution to End Plastic Pollution

In March, world leaders endorsed a historic resolution at the UN Environment Assembly (UNEA-5) in Nairobi, Kenya to End Plastic Pollution and forge an international legally binding agreement by 2024. “The resolution addresses the full lifecycle of plastic, including plastic production, design, and disposal.” This historic resolution marks the largest act of international cooperation to combat plastic pollution. UNEP Executive Director, Inger Andersen, referred to the resolution as the “most important international multilateral environmental deal since [the Paris climate accord].”

The resolution affirms the urgent need to strengthen global cooperation to immediately take action to eliminate plastic pollution, including microplastics, in marine and other environments. In addition to addressing the specific matter of plastic pollution, the resolution reaffirms the 2030 Agenda for Sustainable Development, created in 2015, and the principles of the Rio Declaration on Environment and Development, adopted in 1992. While the resolution recognizes that there is no single approach to address the full lifecycle of plastic and prevent plastic pollution, the resolution highlights the need for enhanced international collaboration and the importance of sustainable design and materials.

The resolution requests that the UNEP Executive Director convene an intergovernmental negotiating committee (INC) to develop an international legally binding instrument on plastic pollution “with the ambition of completing its work by the end of 2024.”

Following the resolution, the UNEP Executive Director convened an open-ended working group to prepare for the INC’s work. The working group met in Dakar, Senegal from May 30 to June 1, 2022 and prepared a proposed approach for the INC including a proposed timeline for INC meetings. Subsequently, the INC held its first session to develop an international legally binding instrument on plastic pollution in Punta del Este, Uruguay from November 28 to December 2, 2022. A multi-stakeholder forum occurred in conjunction with INC’s first session. The INC’s second session is tentatively scheduled to take place in Paris, France in May of 2023.

International Chemicals

A. PFAS Developments

In the United States, the federal government took initial steps toward fulfillment of the Biden Administration’s ambitious PFAS Strategic Roadmap, published in late 2021. Most notably, on August 26, 2022 EPA published a notice of proposed rulemaking that proposed designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), two of the most widely used PFAS, be designated as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The proposed rule received more than 600 comments during its 60-day public comment period. Should EPA enact a substantively similar final rule in 2023, the regulation would require entities to report releases of PFOA and PFOS to the National Response Center and local emergency responders, and would allow plaintiffs to hold dischargers accountable for cleaning up their contamination. EPA also announced draft water quality criteria for PFOA and PFOS, and on December 29, 2022 the passage of the Modernization of Cosmetic Regulations Act (MOCRA), a component of the Consolidated Appropriations Act of 2023, mandated that FDA issue a report detailing the use of PFAS in cosmetic products and associated scientific evidence on safety and risks.

State governments within the United States continue to lead the domestic fight against PFAS even as the federal government begins to take more action. For example, on August 29, 2022, just three days after EPA announced its notice of proposed rulemaking, California passed Assembly Bill 2247, which will require all manufacturers of PFAS or of products containing intentionally added PFAS to register their products on a publicly accessible data collection interface. Likewise, January 2023 marks the effective date of major PFAS restrictions in several states including Maine, New York, Pennsylvania, and Colorado. Finally, on December 20, 2022, 3M, one of the world’s largest PFAS manufacturers, announced that it would discontinue its use of all PFAS by the end of 2025. 3M’s decision, if properly executed, will likely have a significant international impact, given that 3M distributes products globally.

The European Union has taken even more significant action to address PFAS. On December 7, 2022, the European Commission passed Regulation (EC) 2022/2388, which established maximum levels of four different PFAS (PFOS, PFOA, perfluorononanoic acid (PFNA), and perfluorohexane sulfonic acid (PFHxS)) in various foods, including eggs, fish, beef, pork, and poultry. And on January 13, 2023, Denmark, Germany, the Netherlands, Norway, and Sweden submitted a proposal to the European Chemical Agency to heavily restrict the use of PFAS across the EU under the Registration, Evaluation, Authorisation, and Restriction of Chemicals (REACH). The restriction, which is expected to enter into force in 2025, has been the subject of significant controversy; some commentators believe that such extreme action could threaten European economies, while others believe that restrictions that allow for some continued PFAS use are not significant enough.

Global Litigation Efforts

A. The UN’s International Court of Justice and Environmental Law

On November 29, Vanuatu and seventeen other countries filed a draft resolution to the International Court of Justice (ICJ) requesting a non-binding Advisory Opinion to hold high-emitting countries accountable for their obligations to nations facing the worst effects of climate change. Under Article 96 of the UN Charter, ICJ Advisory Opinions provide legal advice to the UN and specialized agencies on “any legal question.” Carrying “great legal weight and moral authority,” ICJ Advisory Opinions contribute to the development of international law; however, the ICJ (sometimes called the World Court) is the only principal organ of the UN that has not yet elucidated the implications of climate change under international law. In the draft resolution, the coalition of nations led by the Republic of Vanuatu calls on the UN General Assembly at the 77th session to request the ICJ for an Advisory Opinion on the legal implications of climate change, including climate impacts on human rights, justice, and intergenerational equity.

B. Global Environmental Litigation

1. United States

On June 30, the Supreme Court reached a decision in West Virginia v. EPA. The Court stated that the Environmental Protection Agency (EPA) did not have the power to create “emissions caps based on the generation shifting approach the agency took in the Clean Power Plan [(CPP)].” The CPP, an Obama administration rule promulgated by the EPA in 2015, sought to change the nation’s “mix of electricity generation[] to transition from thirty-eight to twenty-seven percent coal by 2030.” The CPP required utilization of "outside-the fence-line" generation shifting to alternative clean energy sources such as solar and wind power. In 2019, the EPA found that the CPP exceeded the agency’s authority under the Clean Air Act. The EPA replaced the CPP with a different regulation called the Affordable Clean Energy (ACE) rule. Several states and private parties filed petitions protesting the repeal of the CPP and the promulgation of the ACE rule in the D.C. Circuit. The D.C. Circuit vacated and remanded both the repeal of the CPP and the ACE rule. When President Joe Biden took office, the EPA moved the court to partially stay its mandate as to the CPP and the court agreed. Other states and private entities, led by West Virginia, challenged the D.C. Circuit’s holding and intervened to defend the action.

In the decision, Chief Justice John Roberts held that the CPP fell under the major questions doctrine and violated it because “EPA ‘claim[ed] to discover . . . an unheralded power’ representing ‘a transformative expansion of its regulatory authority . . .’ in an ‘ancillary provision’ of the Act…that was designed to function as a gap filler and has been rarely used in the preceding decades.” EPA wanted to regulate “outside the fence line.” As a result, the CPP would affect many people in a realm outside of the EPA’s traditional area of expertise. Chief Justice Roberts said that major questions should be decided by Congress itself or by a clear delegation from Congress. Further, the Court found that EPA failed to point out “clear congressional authorization” to enact the CPP and require “outside the fence line” generation. Therefore, Congress did not grant the EPA the authority to create emissions caps based on the generation shifting approach the agency took in the CPP. However, the EPA may continue to regulate existing plants through emissions reduction technologies.

Additionally, Sackett v. EPA is expected to be decided later in 2023. The question presented in Sackett is whether wetlands located about 300 feet away from a regulated lake is protected under the Clean Water Act (CWA). The CWA prohibits any “addition of any pollutant to navigable water from any point source..” “Navigable water” is defined as “the waters of the United States, including the territorial seas.” Waters of the United States (WOTUS) has been defined by regulations for many years. On December 30, 2022, the EPA and the U.S. Army Corps of Engineers announced a revised definition for WOTUS. The rule is consistent with the pre-2015, significant nexus definition of WOTUS.

However, the Supreme Court could decide the definition of WOTUS under the CWA in Sackett v. EPA. The Supreme Court decision could upend the current regulatory definition of WOTUS. The decision could lay out the test for determining whether wetlands are WOTUS under the CWA or it could be a narrow holding. The outcome and scope of the decision in Sackett v. EPA will determine the applicability of the final rule and whether the Biden administration will engage in further rulemaking.

2. Mexico

On November 22, 2021, President López Obrador published a decree unilaterally waiving all permitting requirements for several of his priority infrastructure projects in an attempt to speed up the development of those projects considered, by the Federal Government, of “public interest and national security.” The Maya Train “is an intercity railway line stretching 950 miles around the Yucatan Peninsula, in a rough loop around the states of Chiapas, Tabasco, Campeche, Yucatan, and Quintana Roo, connecting beach resorts with ancient Mayan sites. In total, the project entails the development of seven different tracks and twenty-one stations.”

Conservation groups have obtained several injunctions against the Mexican government over its plan to build the Maya Train project through one of Mexico’s most biodiverse forests. Initial plans for the train’s route changed and now the train will traverse underwater caves and devastate kilometers of forests. The Mexican government violated the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters, also known as the Escazú Agreement, by issuing the permit and denying access to environmental information and public participation in environmental decision-making.

In April, the presiding judge agreed, and suspended the project, however, regardless of the injunctions “and suspensions in force, the federal government continued with the work on the train since the beginning of August, citing the national security nature of the project so that no legal recourse could stop its progress.” On August 19, 2022, “an environmental impact assessment pertaining to section five was finally published and approved by SEMARNAT, in record timing, leading many to question its reliability.” In late July and early August, the judge started lifting the suspensions after environmental studies were carried out. “The judge also said there was no way to review whether the government broke the law by working during the suspension.” To this date “five of the six injunctions that have been filed against [section five] have been revoked. Once the final injunction is revoked, construction will be able to continue free of legal constraints.”

3. Brazil

In June, Brazil’s supreme court became the first in the world to rule that the Paris Agreement is a human rights treaty, potentially opening up future climate litigation to stricter legal standards under Brazilian law. In PSB et al. v. Brazil, the Brazilian Supreme Court ruled that the climate pact enjoys “supranational” status, meaning that the Paris Agreement would take precedence if Brazil’s Congress passes a law that comes into conflict with it. The case concerned the government’s failure to disburse payments from a national climate fund and the unprecedented formal recognition of the Paris Agreement as a human rights treaty was part of the final decision ordering the government to reactivate the fund.

4. Australia

In September, the UN Human Rights Committee held that Australia violated the human rights of indigenous Torres Strait Islanders through its failure to act on climate change in a landmark case. In Daniel Billy v. Australia, a group of eight Torres Strait Islanders and six of their children alleged that the government’s lack of mitigation and adaptation measures contributes to climatic changes that threaten their culture and daily lives. The Committee held that Australia’s climate inaction violates their rights to culture and to be free from arbitrary interference with private life, family, and home, although the majority did not recognize a violation of their right to a life with dignity.