United States

CRIN would like to express our profound gratitude to our external reviewer, Andrea Rodgers from Our Children’s Trust, for their insightful comments on a draft of this report. CRIN also sent a draft version to the State for feedback and any comments received were taken into account in finalising the report. Any errors or inaccuracies remaining in the report are CRIN’s.

This report is provided for educational and informational purposes only and should not be construed as legal advice. CRIN does not accept liability for any loss, damage, cost or expense incurred or arising by reason of any person using or relying on information in this report. CRIN encourages personal and educational use of this publication and grants permission for its reproduction in this capacity where proper credit is given in good faith.

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I. National legal protections

A. Are environmental rights protected within the national constitution?

As noted by the United States District Court for the District of Oregon, like certain other rights now to be fundamental (such as the right to privacy and the right to marry), the U.S. Constitution itself “does not mention environmental policy, atmospheric emissions, or global warming.”1 Arguments that such rights are implicitly protected by the Constitution are discussed below. The U.S. Constitution does not contain an explicit right to “a stable climate system” or a healthy environment.2


B. Have constitutional rights protections been applied by national courts with regards to environmental issues?

As explained in more detail below, United States federal courts have long been resistant to recognition of a right to a clean environment under the U.S. Constitution.3 However, in the context of climate change, there has been recent jurisprudence suggesting environmental rights under the Constitution could be recognized. The Ninth Circuit, in Juliana v. United States notes:

Reasonable jurists can disagree about whether the asserted constitutional right exists. Compare Clean Air Council v. United States, 362 F. Supp. 3d 237, 250–53 (E.D. Pa. 2019) (finding no constitutional right), with Juliana, 217 F. Supp. 3d at 1248–50; see also In re United States, 139 S. Ct. at 453 (reiterating “that the ‘striking’ breadth of plaintiffs’ below claims ‘presents substantial grounds for difference of opinion’”).4

The Juliana case proceeded past the pleading stage under a theory that the defendants violated 21 youth plaintiff’s rights to “life, liberty, or property” without “due process of law” (the Due Process Clause of the Fifth Amendment to the Constitution) by “caus[ing] atmospheric CO2 to rise to levels that dangerously interfere with a stable climate system required alike by our nation and Plaintiffs[.]”5 The district court found that the right to a climate system capable of sustaining human life is a fundamental constitutional right – which would result in the application of “strict scrutiny” review for alleged infringements:

Exercising my "reasoned judgment," [] I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society. Just as marriage is the "foundation of the family," a stable climate system is quite literally the foundation "of society, without which there would be neither civilization nor progress."6

The lower Juliana court moderated its finding as follows, to distinguish its holding from prior federal cases declining to recognize constitutional environmental rights:

“In framing the fundamental right at issue as the right to a climate system capable of sustaining human life, I intend to strike a balance and to provide some protection against the constitutionalization of all environmental claims. On the one hand, the phrase "capable of sustaining human life" should not be read to require a plaintiff to allege that governmental action will result in the extinction of humans as a species. On the other hand, acknowledgment of this fundamental right does not transform any minor or even moderate act that contributes to the warming of the planet into a constitutional violation. In this opinion, this Court simply holds that where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet's ecosystem, it states a claim for a due process violation. To hold otherwise would be to say that the Constitution affords no protection against a government's knowing decision to poison the air its citizens breathe or the water its citizens drink. Plaintiffs have adequately alleged infringement of a fundamental right.”7

This finding was reiterated by the same court at the summary judgement stage, and in denying a subsequent motion to dismiss an amended complaint.8

Conversely, in Clean Air Council v. United States, the district court for the Eastern District of Pennsylvania held against the existence of a constitutional right to a pollution-free environment:

“The Third Circuit has held that "there is no constitutional right to a pollution-free environment." Nat'l Sea Clammers Ass'n v. City of New York, 616 F.2d 1222, 1238 (3d Cir. 1980), vacated on other grounds sub nom., Middlesex Cty. Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 101 S. Ct. 2615, 69 L. Ed. 2d 435 (1981). As of this writing, a single court has recognized a substantive due process right analogous to what Plaintiffs urge here. See Juliana v. United States, 217 F. Supp. 3d 1224, 1248-50 (D. Or. 2016) (recognizing "the right to a climate system capable of sustaining human life"). Yet, the Juliana Court certainly contravened or ignored longstanding authority. See County of Sacramento v. Lewis, 523 U.S. 833, 842, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998) ("[W]e have always been reluctant to expand the concept of substantive due process."); Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997) ("[T]he Due Process Clause specially protects those fundamental rights and liberties which are, objectively, 'deeply rooted in this Nation's history and tradition.'" (citation omitted)); see also, e.g., Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971) (no constitutional right to a healthy environment); Lake v. City of Southgate, No. 16-10251, 2017 U.S. Dist. LEXIS 27623, 2017 WL 767879, at *3-4 (E.D. Mich. Feb. 28, 2017) (no fundamental right to health or freedom from bodily harm); SF Chptr. of A. Philip Randolph Inst. v. United States EPA, No. 07-4936, 2008 U.S. Dist. LEXIS 27794, 2008 WL 859985, at *7 (N.D. Cal. Mar. 28, 2008) (no fundamental right to be free from climate change pollution); In re "Agent Orange" Product Liability Litigation, 475 F. Supp. 928, 934 (E.D.N.Y. 1979) (no "constitutional right to a healthful environment"); Fed. Emp. for Non-Smokers' Rights v. United States, 446 F. Supp. 181, 185 (D.D.C. 1978) (no constitutional right "to a clean environment"); Pinkney v. Ohio EPA, 375 F. Supp. 305, 310 (N.D. Ohio 1974) (same); Tanner v. Armco Steel Corp., 340 F. Supp. 532, 537 (S.D. Tex. 1972) (same).”9

Recently, in a case brought by sixteen children under a state constitution,10 Held v. State of Montana, the trial court stated that “[b]ased on the plain language of the implicated constitutional provisions, the intent of the Framers, and Montana Supreme Court precedent, climate is included in the ‘clean and healthful environment’ and environmental life support system.”11 The court ultimately held that “Montana’s climate, environment, and natural resources are unconstitutionally degraded and depleted due to the current atmospheric concentration of GHGs and climate change”, which was affirmed by the Montana Supreme Court in 2024, upholding the constitutional rights to a safe and livable climate.12 Another U.S. state case, Navahine v. Hawaiʻi Department of Transportation, became the first settlement in a constitutional climate case resulting in systemic decarbonisation of a state transportation system.13 The case was led by 13 children, with the support of Our Children’s Trust and Earthjustice, who claimed that the state transportation system produced high levels of greenhouse gas emissions, infringing upon their state constitutional rights to a clean and healthful environment and causing them great harm that would affect their capacity to “live healthful lives in Hawaii now and into the future”.14 The Supreme Court of Hawai’i had already ruled that the state constitutional right a clean and healthful environment encompassed a right to a life-sustaining climate system,15 and the parties agreed that the Hawaii Department of Transportation was constitutionally obligated to achieve zero emissions in all modes of state transportation no later than 2045. The court, in approving the settlement agreement, found that it was “in the best interests of and fair to the Youth Plaintiffs,” and agreed to accept continuing jurisdiction over the case through 2045, to ensure accountability in achieving the zero emissions target.16


C. Has the concept of intergenerational equity been applied within national courts? If yes, in what circumstances?

The concept of intergenerational equity has seldom been discussed by United States courts, and even less as a constitutional right. The District of Oregon, in Juliana, did note that the Founding Fathers were “influenced by intergenerational considerations. They believed the inalienable rights to life, liberty, and property were rooted in a philosophy of intergenerational equity.”17 However, the same court at the summary judgement stage rejected as a suspect classification for constitutional analysis purposes “posterity” – defined to include unborn members of plaintiff “future generations” and children who cannot vote.18 The court cited prior precedent and then noted a disinclination to break new ground, holding that:

“Balancing competing interests is at the heart of executive and especially legislative decision-making, and it is the rare governmental decision that does not have some effect on children or posterity. Holding that "posterity" or even just minor children are a suspect class would hamstring governmental decision-making, potentially foreclosing even run-of-the-mill decisions such as prioritizing construction of a new senior center over construction of a new playground or allocating state money to veterans' healthcare rather than to the public schools. Applying strict scrutiny to every governmental decision that treats young people differently than others is unworkable and unsupported by precedent.”19


D. What legislation is in place to regulate environmental protection? Are there any proposals for legal reforms currently under review in the national legislature?

The area of environmental protection regulation is vast. At the federal level, in addition to a multitude of other federal acts, rules and regulations, major federal laws dealing with protecting the environment include the following:

  • The Clean Air Act (CAA) regulates air emissions and quality.20
  • The Clean Water Act (CWA) regulates discharges into U.S. waters.21
  • The Safe Drinking Water Act (SDWA) regulates public water systems.22
  • The Resource Conservation and Recovery Act (RCRA) governs the generation, handling, transportation, treatment, storage and disposal of hazardous waste, and regulates the management of certain nonhazardous solid wastes.23
  • The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) – also known as Superfund – addresses the clean-up of hazardous substance sites, accidents, spills, and other emergency releases of hazardous substances.24 The Superfund Amendments and Reauthorization Act (SARA) reauthorized continuing CERCLA efforts. Title III of SARA created the Emergency Planning & Community Right-to-Know Act (EPCRA) that contains reporting requirements relating to hazardous substances.25
  • The Endangered Species Act (ESA) is designed to protect and repopulate threatened plants, animals and animal habitats.26
  • The Federal Insecticide, Fungicide & Rodenticide Act (FIFRA) regulates the sale, distribution and use of pesticides. The Food Quality Protection Act of 1996 governs the use of pesticides and contains explicit provisions to protect children’s health.27
  • The National Environmental Policy Act (NEPA) requires evaluations of potential environmental effects before undertaking major federal actions.28
  • The Occupational Safety & Health Act (OSHA) governs workplace safety and health, and includes provisions addressing the use of toxic or hazardous substances in the workplace.29
  • The Pollution Prevention Act focuses on changing the production, operation and use of raw materials in both private industry and the government, to reduce the sources of pollution.30
  • The Toxic Substances Control Act (TSCA) regulates the production, importation, use and disposal of chemicals in the U.S.31
  • The Inflation Reduction Act (2022) focuses on deficit reduction to fight inflation, invest in domestic energy production and manufacturing, and reduce carbon emissions by 40 percent by 2030.32 It includes clean energy, climate mitigation and resilience, agriculture, and conservation-related investment programs.33

The key statutes are generally interpreted and enforced through regulations issued by entities such as the Environmental Protection Agency (EPA), the U.S. Department of the Interior, the U.S. Army Corps of Engineers, the National Marine Fisheries Service, the U.S. Department of Justice, and other federal, state and local agencies. A multitude of environmental laws have been enacted by state and local governments in the U.S., as well, which generally must be stricter than, and must not conflict with, the federal statutes and regulations.34

Bills in the U.S. Congress implicating environmental protection are constantly being considered. They can be viewed online.35


E. Is there any specific national policy addressing childhood exposure to toxic substances? If so, what is considered a safe level of exposure and what is the process for determining safe levels of exposure?

As implemented in 1995, and reaffirmed in 2013 and 2018, the United States does have a policy addressing childhood exposure to toxic substances – through its primary federal agency responsible for the implementation of environmental protection, the EPA. According to the EPA:

“It is the policy of the U.S. Environmental Protection Agency (EPA) to consider the risks to infants and children consistently and explicitly as a part of risk assessments generated during its decision making process, including the setting of standards to protect public health and the environment. To the degree permitted by available data in each case, the Agency will develop a separate assessment of risks to infants and children or state clearly why this is not done - for example, a demonstration that infants and children are not expected to be exposed to the stressor under examination.”36

In 1996, the EPA developed the National Agenda to Protect Children’s Health from Environmental Threats, which included: (1) a policy of ensuring that EPA standards are protective enough to address the potentially heightened risks faced by children; (2) identifying and expanding research of child-specific susceptibility and exposure to pollutants; (3) developing new policies to address cumulative and simultaneous exposures faced by children; (4) building upon positive results from the Community Right-to-Know law; (5) calling the public to educate themselves about environmental hazards to children; (6) expanding educational efforts to identify, prevent and reduce environmental health threats; and (7) committing to provide necessary funding to address children’s environmental health issues as a top priority among relative health risks.37

In 1997, President Bill Clinton issued an Executive Order on the Protection of Children from Environmental Health Risks and Safety Risks, which requires federal agencies (beyond only the EPA) to highly prioritise addressing health and safety risks to children, coordinate research priorities relating to children’s health, and ensure that their standards account for special risks to children.38 Also in 1997, the EPA established the Office of Children’s Health Protection (OCHP). The OCHP’s goal is to ensure that all EPA actions and programs address the unique vulnerabilities of children.39

The EPA publishes a report presenting data on children’s environmental health that is updated periodically.40 It contains certain analysis regarding data relating to childhood levels of exposures to various chemicals, such as lead and mercury. Further, agencies do promulgate exposure guidelines that differ when children are expected sensitive receptors. For example, age is a factor in the EPA’s guide for calculating vapour intrusion screening levels.41


F. Is the country equipped with pollutant release and transfer registers? If yes, do these registers take into account child specific factors regarding the substances for which data is gathered and the type of data generated?

Yes, the United States maintains a Toxics Release Inventory (TRI), designed to track the management of certain toxic chemicals deemed to pose a threat to human health and the environment.42 The inventory includes information reported annually from U.S. facilities in several industry sectors (typically larger facilities involved in manufacturing, metal mining, electric power generation, chemical manufacturing and hazardous waste treatment) regarding how much of each of the chemicals is released to the environment and/or managed through recycling, energy recovery and treatment. The inventory currently includes 767 individually listed chemicals and 33 chemical categories.43 The TRI displays demographic information from seven different demographic indicators, including children under the age of five.44

The EPA publishes a report presenting data on children’s environmental health (including information on air pollutants, hazardous air pollutants, indoor environments, drinking water contaminants, chemicals in food, contaminated lands, climate change, biomonitoring of chemicals and diseases and conditions resulting from the exposure to hazardous substances), which is updated periodically (see Part I.E above).

In 2006, the Commission for Environmental Cooperation (CEC), funded by the governments of the United States, Mexico and Canada, published the report Toxic Chemicals and Children’s Health in North America: A Call for Efforts to Determine the Sources, Levels of Exposure, and Risks that Industrial Chemicals Pose to Children’s Health.45 This report included information on the types, exposures and potential health impacts of chemicals on children and on the releases of chemicals (based on data from the pollutant release and transfer registers), and actions to protect children’s health from toxic chemicals. It has not been possible to locate an up-to-date report of this nature.46


G. Does the State assert extra-territorial jurisdiction for any environmental issues?

There is a presumption against the extraterritorial application of U.S. laws. Courts evaluate the issue as a matter of congressional intent:

“The canon of construction which teaches that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States [citation omitted] is a valid approach whereby unexpressed congressional intent may be ascertained. It is based on the assumption that Congress is primarily concerned with domestic conditions.”47

The presumption “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.”48 This principle is applied to environmental laws.49

 
 

II. Accessing courts

A. How can environmental cases be brought before national courts?

Civil claims – citizen suits

In the field of environmental law, citizen suits are particularly common in the United States.50 A citizen suit provision passed by Congress gives citizens a private right of action against alleged violators of the law and authorises the court to award injunctive relief and sometimes to impose penalties.51 Most federal statutes aimed at pollution control incorporate a citizen suit provision, allowing citizens to enforce the environmental laws of the United States.52 Citizen suit provisions originated in the CAA, which provides in pertinent part, “(a) [A]ny person may commence a civil action on his own behalf […] (1) against any person […] who is alleged to have violated [the Act][…] (2) against the [EPA] Administrator where there is alleged a failure of the Administrator to perform any act or duty under [the Act] which is not discretionary with the Administrator […]”.53

Environmental laws that allow citizen suits include the CAA;54 CWA;55 ESA;56 RCRA;57 Outer Continental Shelf Lands Act (OCSLA);58 CERCLA;59 TSCA;60 SDWA;61 and EPCRA.62 Notable exceptions include FIFRA; the Marine Mammal Protection Act (MMPA); and NEPA.

For environmental statutes that do not include a citizen suit provision in the statute itself, the Administrative Procedure Act (APA) may instead be used to sue federal agencies to enforce compliance with the statute.63 Under the APA, an individual has standing to sue an agency if they are adversely affected by an agency action.64

Civil judicial actions – government suits

In addition to suits brought by private citizens as discussed above, the U.S. government may also bring civil enforcement actions of environmental statutes. Civil judicial actions are formal lawsuits filed in court against persons or entities that have failed to: (1) comply with statutory or regulatory requirements, (2) comply with an administrative order, or (3) pay the EPA the costs for cleaning up a Superfund site or commit to doing the cleanup work.65 These cases are filed by the U.S. Department of Justice on behalf of the EPA, or by the State’s Attorneys General on behalf of the states.66

Criminal enforcement actions

In addition to the civil enforcement mechanisms discussed above, criminal charges can occur when the EPA or a state brings an enforcement action in the form of a criminal action. Criminal actions are usually reserved for the most serious violations and can result in fines or imprisonment.67

Administrative actions

Civil administrative actions are non-judicial enforcement actions taken by the EPA or a state under its own authority. These actions do not involve a judicial court process. An administrative action by the EPA or a state agency may be in the form of: (1) a notice of violation or a notice letter, or (2) an order (either with or without penalties) directing an individual, a business, or other entity to take action to come into compliance, or to clean up a site.68

Constitutional claims

Alternatively, in the United States individuals may also bring environmental cases to court via constitutional law claims. United States law allows an individual who believes that his or her constitutional rights have been violated to bring a civil action against the government to recover the damages sustained as a result of that violation. 42 U.S.C. § 1982 “provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws by any person acting under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.”69 Section 1983 is a gateway through which plaintiffs may bring a Due Process claim.

The Due Process Clause of the Fifth Amendment to the United States Constitution bars the federal government from depriving a person of “life, liberty, or property” without “due process of law.”70 Substantive due process “forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”71 The United States District Court for the District of Oregon found that “the right to a climate system capable of sustaining human life is fundamental to a free and ordered society. Just as marriage is the foundation of the family, a stable climate system is quite literally the foundation of society, without which there would be neither civilization nor progress.”72 The United States District Court for the District of Oregon went on to hold, “where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem, it states a claim for a due process violation.”73

With limited exceptions, the Due Process Clause does not impose on the government an affirmative obligation to act. One such exception is the “danger creation” exception, which permits a substantive due process claim when government conduct places a person in peril in deliberate indifference to their safety.74 Plaintiffs may use this exception in cases arguing that defendants played a significant role in creating the climate crisis, for example.75


B. What rules of standing apply in environmental cases?

Individuals

When suing under citizen suit provisions, the APA, or the Constitution, individuals must have standing to sue based on Article III of the U.S. Constitution. There are several standing requirements. The following are some examples.

To demonstrate standing in all three situations, a non-governmental plaintiff must show (1) they suffered an injury in fact that is concrete, particularised, and actual or imminent; (2) the injury is fairly traceable to the defendant’s challenged conduct; and (3) the injury is likely to be redressed by a favourable court decision.76 This constitutional requirement of standing is equally applicable to class actions by groups of individuals.77

In an environmental case, a plaintiff cannot demonstrate injury in fact merely by alleging injury to the environment; there must be an allegation that the challenged conduct is harming (or imminently will harm) the plaintiff.78 For example, a plaintiff may meet the injury in fact requirement by alleging the challenged activity impairs his or her economic interests or aesthetic and environmental well-being.79

Causation in climate change cases can be established by showing that the challenged conduct is a substantial factor in causing the plaintiff’s injury.80 Finally, a plaintiff need not show a favourable decision is certain to redress his injury, but must show a substantial likelihood it will do so. It is sufficient for the redressability inquiry to show that the requested remedy would slow or reduce the harm.81

Organisations

An environmental organisation has standing to bring suit on behalf of its members when: (1) its members would otherwise have standing to sue in their own right, (2) the interests at stake are germane to the organisation’s purpose, and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.82


C. Do these rules of standing differ when children are the complainants and if so in what way?

No, the rules of standing do not differ when children are the complainants. “A child, merely on account of his minority, is not beyond the protection of the Constitution.”83 Because children lack legal capacity, however, they must obtain adult representation.84 Rule 17 of the Federal Rules of Civil Procedure lays out who may sue on behalf of a child in federal court. A general guardian, a committee, a conservator, or a fiduciary may sue on the child’s behalf.85 A child who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem.86 Additionally, each state has rules governing the appointment of a legal guardian or representative.


D. What is the burden and standard of proof for allegations of personal injury as a result of toxic exposure?

“Burden of proof” refers to those facts that a plaintiff must prove to establish a prima facie case. “Standard of proof,” or standard of persuasion, defines the level of confidence the jury must feel in order to find a fact “true” in favour of the party with the burden of proving that fact. In a case of personal injury due to toxic exposure brought as a tort at common law, a plaintiff has the burden to prove the fact of causation by a preponderance of the evidence. A “preponderance” is “more likely than not.”87 In a toxic tort case, a plaintiff must show both general causation, i.e. that the substance in question is capable of causing the injury in question, and specific causation, i.e. that this specific substance caused the plaintiff’s personal injury.88 Finally, in cases where multiple defendants are responsible for exposing the plaintiff to a harmful substance, the plaintiff must provide sufficient evidence for a jury to conclude that the defendant's substance was a “substantial factor” in causing the plaintiff's injury.89

A recurring problem in toxic tort litigation is thus establishing proof of the nexus between the disease or injury complained of and the environmental condition for which the defendant is responsible. The requisite proof will include: (a) Epidemiologic or statistical correlation between certain diseases and certain conditions; (b) Etiology—has this particular substance caused the condition complained of, and how; and (c) Exposure—relationship of the nature of the exposure, as in the air, water, etc., the kind of contact—ingestion, inhalation, etc., and the duration, frequency, or geographic or locational proximity of the person injured to the site. Scientific issues are raised by (a), (b), and (c), and other difficult, factual issues are likely to be raised by the long latency periods for many injuries from toxic substances. Every toxic tort case requires scientific evidence relating to both causation and injury.90

The particular cause of action at common law, however, will affect the burden and standards of proof for allegations of personal injury caused by toxic exposure.

Negligence

A negligence cause of action requires proof that the defendant has breached a particular duty of care. Thus, the cause of action is most appropriately applicable in situations of improper disposal of a toxic substance. Reliance on the breach of statutory obligations, or violations of legislation or regulatory standards, may be appropriate under the negligence per se doctrine. The cause of action for negligence may also be applicable in situations where no improper act or disposal is charged, but where improper maintenance of a disposal site is charged, involving the negligent release, leaching, or pollution by toxic substances, etc., from an improperly maintained site.91

Strict liability

The doctrine of strict liability, or liability regardless of fault, may apply both to the act of toxic waste disposal and to the continued maintenance of a disposal site. The doctrine, which is not favoured by all U.S. states, may apply if the state court regards the dumping—or the maintenance of a disposal site—as an “ultrahazardous” or “abnormally dangerous” activity. Strict liability, as imposed in Alaska, Maine, North Carolina, and Rhode Island, relieves the plaintiff of proving negligence, but still the plaintiff must prove causation. These strict liability statutes have limitations. For instance, Maine does not allow strict liability for personal injuries. North Carolina only allows strict liability if the hazardous substance entered the waters of the state and then caused the injury.92

Trespass

The cause of action for trespass, which involves an interference with plaintiff’s possessory interest in land, is often relied on in water and air pollution situations. Trespass requires an entry on plaintiff’s land, either by defendant or by some physical or observable object which defendant has caused to enter plaintiff’s land. In the toxic pollution situation, for instance, the single, isolated instance of the trespassory deposit (unauthorised dumping) of toxic wastes on another’s land may give rise to a sound cause of action which may include, depending on the circumstances, claims for property damage as well as for personal injuries. In the hazardous waste situation, trespass is likely to involve runoff of liquid wastes, or the invasion of subsurface waters.93

Nuisance

A private nuisance is an unreasonable interference with the plaintiff's enjoyment of their land. The action for nuisance, which may include injunctive relief as well as damages, grows out of conditions that are disturbing or harmful. Thus, the maintenance of a toxic waste disposal site may fit the description of a private nuisance. A public nuisance is generally based on the violation of a law that characterises certain conditions as a nuisance. Some such designations may be very broad—some states designate any unwholesome, dangerous or hazardous or unsafe condition as an abatable public nuisance. A public nuisance may also be more broadly and inclusively defined as an unreasonable interference with a right of the general public. A public nuisance normally gives rise to an action or prosecution by the public prosecutor. A private individual can sue for damages flowing from a public nuisance only if his loss or injury differs in kind from that suffered by the public at large. The necessary proof of this special injury may be treated differently in different jurisdictions.94


E. What limitation periods apply in environmental cases?

If the suit is a constitutional claim brought under Section 1983, courts must borrow and apply the relevant state statute of limitations for personal injury actions, which are state-specific.95 For actions filed under the APA, there is generally a six-year statute of limitations.96 Finally, for claims brought under an environmental statute, statutes of limitations are statute-specific, if specified. For citizen suits brought under the CWA, for instance, courts generally apply the five-year federal statute of limitations provided for in 28 U.S.C. § 2462.97 In contrast, CERCLA provides two different statutes of limitations: an action for contribution under section 113(g)(3) is subject to a three-year statute of limitations, while an action for the recovery of response costs under section 107 is subject to a prescriptive period of six years.98 Additionally, CERCLA employs the “discovery rule,” under which relevant state statutes of limitation will not begin to run until a plaintiff discovers (or reasonably should have discovered) that the claimed harm was caused by contamination.99


F. Is legal aid available in environmental cases? If so, under what circumstances?

Government-funded legal aid is not provided for public interest litigation. Demand for civil legal aid is particularly high for cases concerning environmental protection, however.100 To meet this demand, non-profit law firms, such as Earthjustice, Natural Resources Defense Council and Our Children’s Trust, are available and serve as public interest environmental law organisations representing a diverse range of public-interest clients for free.101

 
 

III. Remedies

A. What remedies are courts empowered to impose in environmental cases?

The types of remedies that are available in environmental actions include the review of agency determinations, the imposition of money damages and civil penalties, and the granting of injunctions and declaratory judgments.102 Some of these remedies arise explicitly under the relevant environmental statutes whilst others are grounded in common law and the rules of equity.

Injunctive relief

Most environmental regulatory statutes give rise to suits for injunctive relief, either through explicit provisions, as in the CAA and CWA, or by implication. Even where a statute is silent as to remedies, as in the case of NEPA, injunctive relief can be employed by courts.

Injunctive relief is available in common-law environmental actions, which typically involve riparian rights, the public trust doctrine, or nuisance issues. In addition, it is a frequent remedy under environmental statutes. The following types of injunctive relief are available:

  • Temporary Restraining Order (TRO): It is often vital for plaintiffs in an environmental action to halt an imminent or ongoing project while their legal objections are being litigated, in order to prevent environmental damage from occurring or continuing.103 This is especially important because many courts are reluctant to enjoin completed or largely completed projects. In such cases, the remedy of choice often will be a TRO, available ex parte where “immediate and irreparable injury… will result to the applicant before the adverse party… can be heard in opposition [...]”.104
  • Preliminary injunction: A court may issue a preliminary injunction to preserve the status quo pending resolution of litigation. Normally, the plaintiff must show both irreparable injury and the likelihood of success in the action.105 As in any action seeking an injunction, issuance of a preliminary injunction lies in the sound discretion of the court.106
  • Permanent injunction: A court may grant a permanent injunction under equitable principles, only where the plaintiff has no adequate remedy at law, that is, through money damages or the like.107 This rule is as applicable in environmental cases as in any other. In addition, the courts ordinarily balance the equities, weighing the harm that will occur to the defendant if the injunction is granted against the harm to the plaintiff if it is denied.108

Declaratory judgments

Under the Declaratory Judgment Act (DJA), federal courts may “declare the rights and other legal relations of any interested party […].”109 The DJA is not an independent source of federal jurisdiction but affords an additional remedy to one seeking adjudication of her rights. It has been invoked in environmental litigation, particularly under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), where litigants may seek judgments declaring their non-liability for response costs or damages or the applicability of liability insurance policies.110

Damages

Common-law actions seeking redress for environmental harm have long provided for money damages. In addition, CERCLA and statutes governing oil spills have established funds for recovery of damages to natural resources (and, for oil spills, certain other damages) and eliminated or curtailed the need to prove that the defendant was at fault.111

Both compensatory and punitive damages may be available depending on the breach:

  • Compensatory damages: In common-law environmental actions, damages may include medical costs, cleanup costs, and compensation for the infliction of emotional distress.112 Some courts have held that loss of profits, for example, where fishermen are unable to fish as a result of a chemical spill, is not recoverable without physical injury.113
  • Punitive damages: Punitive damages are available at common law for intentional or reckless torts and have been awarded in suits based on environmental harms.114 The court may take into account the willfulness of the act, the extent of the injury and the assets of the defendant.115

Civil penalties

A frequently used remedy in environmental litigation is the civil penalty. Most of the major federal environmental regulatory statutes provide for an action by the United States to recover such penalties.116 These suits allow the government to obtain a substantial monetary sum without the need to institute criminal prosecution to collect a fine.

Criminal prosecution

The major environmental regulatory acts contain criminal provisions as well, and the number of penalties available have increased over the past decade.117 Knowing violations and knowing false statements are felonies. In particular, knowingly endangering the life or safety of other persons by exposing them to hazardous waste is punishable by up to fifteen years imprisonment and fines of up to $250,000 — $1,000,000 in the case of corporations and other organisations.118 Criminal prosecution does not require the government to first proceed administratively or civilly.119

Annulling administrative determination

Since much environmental litigation is brought to review administrative determinations and to challenge agency regulations, a frequent remedy is a court judgement annulling, or sustaining, such administrative decisions. A court may annul an agency’s decision in its entirety, annul it and remand to the agency to remedy procedural deficiencies, or uphold the agency decision.120


B. What remedies have courts ordered in environmental cases to date?

As noted above, remedies available to courts in the United States arise not only from statute, but also from common law and the rules of equity. As such, to date, courts in the United States have ordered the full range of remedies set out in Section III(A).

Remedies in climate change cases have been more difficult to obtain. In Juliana, for example, the judges held that the plaintiffs’ request for injunctive relief in the form of a climate recovery plan was beyond the powers of a federal court to award.121 The majority thought that the separation of powers between the three branches of government should relegate courts to the sidelines in climate change cases. The dissent instead viewed the separation of powers principle to call courts to the forefront when asked to declare and protect constitutional rights. The dissenting Judge Staton saw an implicit duty embedded in the Constitution that obliges courts to prevent the other branches from bringing the nation to its demise, but the panel ultimately fundamentally disagreed on courts’ ability to provide a remedy. The plaintiff’s reliance on the Supreme Court’s landmark Brown v. Board of Education 1954 ruling which required desegregation of public schools122 was not considered to be persuasive by the majority of the panel. The majority found that judicial supervision of the executive branch’s preparation of a climate recovery plan would mire the courts in protracted and complex policy issues.


C. Are there any administrative authorities empowered to act on environmental complaints and if so, how are they empowered to respond to complaints?

Government agencies (at the federal, state, and local level) have broad discretion in deciding whether to take enforcement action against violations of environmental laws.

The EPA is the main regulatory authority in terms of remit. It implements and enforces most of the federal environmental statutes, although it shares responsibility with states and other federal agencies under some laws. The EPA is empowered to hold many types of administrative hearings.123 Administrative hearings are provided for under a number of EPA statutes. Almost all of the hearings conducted by Administrative Law Judges (ALJ) are governed by the Consolidated Rules of Practice Governing the Assessment of Civil Penalties and the Revocation, Termination or Suspension of Permits (CROP).124 There are other types of administrative hearings conducted by the ALJs, such as hearings under Section 6 of FIFRA concerning EPA’s refusal to register a pesticide or EPA’s intent to cancel or suspend a pesticide registration, or to change a pesticide classification.125

The other key federal regulatory bodies include the following:

  • The Department of the Interior (DOI) administers federal laws dealing with public lands management, minerals, and natural resources, including various wildlife conservation laws.
  • The Army Corps of Engineers (ACE) regulates the disposal of dredged or fill material in waters subject to CWA jurisdiction, as well as activities and structures in navigable waters under the Rivers and Harbors Act (RHA).
  • The Department of Commerce’s National Marine Fisheries Service (NMFS) administers programmes relating to the conservation and management of marine resources.
  • The Department of Justice’s Environment and Natural Resources Division (ENRD) represents federal agencies in litigation arising under the federal environmental laws.
 
 

IV. Civil and political rights

Freedom of peaceful assembly

A. How is children’s right to engage in peaceful assembly, including protests, protected in national law?

The First Amendment of the United States Constitution grants the freedom of peaceful assembly and protects that freedom from government action. The Supreme Court has indicated that assemblies or marches that are peaceful and orderly fall within the “sphere of conduct product protected by the First Amendment.”126 This protection extends to children as determined in a 1963 Supreme Court decision indicating that high school protesters were granted that protection during a protest composed of high school students and college students.127

B. Are there any legal limitations on the right of children to engage in peaceful assemblies?

There are currently no legal limitations aimed specifically at the right of children to engage in peaceful assemblies. The Supreme Court has made it clear that said rights of all protesters are “protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.”128 Thus, as long as the assembly generally remains peaceful, the right to assembly shall be protected.

The only exception to this rule constitutes time, place, and manner restrictions. The Supreme Court has routinely held that even protected speech may be restricted if said restrictions “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.”129 As such, a curfew or legitimate content-neutral prohibition on protests in certain places such as government buildings during working hours, or parks when they are closed could be utilised to limit adults and children’s rights to assemble and protest.

C. What penalties can be imposed on children for engaging in school strikes?

As a rule, students may be punished for school strikes and protests. While the law does protect the children’s right to peacefully assemble, such freedom is not all encompassing when it comes to the public school context. As the American Civil Liberties Union points out, every state in the United States has compulsory education laws that require children to attend school.130 As a result, children and students can be punished for missing class if such occurs by engaging in school strikes. However, while the action of protest may be punished by the school, the school may not compel a harsher punishment based on the content of the protest.131 The Supreme Court made clear that while actions that substantially or materially disrupt the running of the school may be punished, the right of protected speech is still held by the students and children.132 The determination of what is considered disruptive is case-specific.


Freedom of expression

A. How is children’s right to freedom of expression protected in national law? Are there any protections within the national constitution, legislation or developed through case law?

The First Amendment of the United States Constitution grants the freedom of speech and expression, protecting the rights of individuals to speak their minds and opinions free from censorship by the government. While limited categories are considered to be exceptions to this protection, in order to censor speech based on its content the government must show that there is a compelling interest and that said censorship is narrowly drawn to serve that interest.

It was not until 1969 in the Supreme Court’s decision of Tinker v. Des Moines Indep. Cmty. Sch. Dist. that the freedom of expression was expressly stated to be held by children. In it, the Court explicitly expressed how students and children did have a protected right to express themselves, stating how they did not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”133 Often cited in cases relating to children’s freedom of speech, this Supreme Court case cemented the idea that children are protected by the First Amendment to express themselves in a manner similar to that of adults.

B. Are there any legal limits or restrictions on the right to freedom of expression that specifically apply to children?

While children have the freedom of expression, a notable limitation of that freedom is in the setting of a public school system. The Supreme Court determined that “the constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings.”134 It continued that a student’s First Amendment rights were circumscribed “in light of the special characteristics of the school environment.135 Thus, while children have the freedom, a school may censor language that would normally be protected expression elsewhere, so long as the school finds it inconsistent with its basic educational mission, a determination to be made solely by the school board.136

Over time, the Supreme Court has found three separate tests to determine whether the child’s speech can be restricted and censored:

  1. Where the expression materially and substantially disrupts the work and discipline of the school;137
  2. Where the expression is offensively lewd and/or indecent;138 or
  3. When expression is part of school-sponsored activities, where the expression would create pedagogical concerns that would be erroneously attributed to the school.139

The Supreme Court recognized in Morse v. Frederick that each of the above tests can be used to determine if the student speech in question falls outside the parameters of protected speech.140


Freedom of association

A. How is children’s right to freedom of association protected in national law? Are there any protections within the national constitution, legislation or developed through case law?

The freedom of association is not explicitly stated in the United States Constitution or the Bill of Rights. Instead, the Supreme Court has found the right to be an indispensable means of preserving the other individual liberties granted by the First Amendment.141 The Supreme Court followed that decision with Dallas v. Stanglin, where it considered the question of if children aged 14-18 could argue that their freedom of association was violated by a dance hall restricting their access.142 Though the Court didn’t find their freedom of association violated by the dance hall access restriction, it was important that the Court considered whether the restriction violated the children’s freedom of association at all during its decision. This indicated that the freedom of association was not only granted to children, but that federal law protected it.

B. Are there any legal limits or restrictions on the right to association that specifically apply to children?

While there are currently no restrictions or limits on a child’s right to association, there is a possibility for such restriction to come into existence. Similar as with an adult’s constitutional right, the government may limit the freedom of association if it can present a compelling interest and the limitation is narrowly tailored to achieve that interest. The Supreme Court has indicated that the interest in “safeguarding the physical and psychological well-being of a minor" is "compelling."143 As the Supreme Court has held that a state's authority over children's activities is broader than over like actions of adults, including those of public activities, it is not completely unforeseeable that such restrictions against children joining certain political or social groups can be placed under future restrictions.144


Access to information

A. How is children’s right to access information protected in national law? Are there any protections within the national constitution, legislation or developed through case law?

The right to access information is not enumerated in the First Amendment or the Constitution of the United States. Instead, the Freedom of Information Act (FOIA) explicitly states and protects that right.145 FOIA grants anyone, including U.S. citizens, foreign nationals, businesses and organisations, the ability to file a request for information in the possession of the federal government or its agencies. With a limited list of nine exemptions, FOIA grants the right to make a request and have the information sought disclosed.146 Children are also allowed to make use of FOIA so long as their requests do not fall within the nine exemptions.

B. Are there any legal limits or restrictions on the right to access information that apply specifically to children?

There seems to be no limitation for children exercising the right to access information granted by FOIA, nor are there any legal restrictions or limits applicable specifically to children in relation to their ability to access information.

The closest such restriction aimed at children is the restriction on providing material considered obscene to children. The Supreme Court held in 1968 that such a restriction was allowable in its decision in Ginsberg v. New York, a decision that has resulted in federal and state law criminalising such behaviour.147

C. Does the national curriculum for schools include environmental education? (If so, please include a description of what is addressed within environmental education)

The United States does not have an official national curriculum. Several federal statutes explicitly prohibit the federal government from instituting a national curriculum: The Department of Education Organization Act,148 General Education Provisions Act,149 and Elementary and Secondary Education Act of 1965.150

The closest the United States has to a national curriculum is the Common Core Standard and the Next Generation Science Standards, both of which are championed by the multi-state groups. The Common Core focuses on language arts and mathematical skills,151 while the Next Generation focuses on science skills.152 While they set benchmarks as to the aptitude of students, neither standard is required to be implemented in every state or is followed by every state. Nor does either standard require the teaching of particular subjects, including environmental education.

However, several states have passed laws requiring climate education. For example, in 2020, the state of New Jersey included climate change as part of its school curriculum, starting in kindergarten, and in 2022, Connecticut did as well.153 California, Oregon, and New York are considering similar measures.154

***

End notes

1 Juliana v. United States, 217 F. Supp. 3d 1224 (D. Or. 2016) at 1237, 1249-50, https://climatecasechart.com/case/juliana-v-united-states/.


2 See U.S. Constitution, https://www.constituteproject.org/constitution/United_States_of_America_1992.

3 See, e.g., Clean Air Coun. v. United States, No. 17-4977, 2019 WL 687873, at *8 (E.D. Pa. Feb. 19, 2019), https://climatecasechart.com/case/clean-air-council-v-united-states/; S.F. Chapter of A. Philip Randolph Inst. v. Envtl. Prot. Agency, No. C 07-04936, 2008 WL 859985, at *6–7 (N.D. Cal. Mar. 28, 2008), https://casetext.com/case/sf-chapter-of-a-philip-randolph-institute-v-us-epa; Concerned Citizens of Neb. v. U.S. Nuclear Regulatory Comm’n, 970 F.2d 421, 426 (8th Cir. 1992); Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971), https://casetext.com/case/ely-v-velde; MacNamara v. Cty. Council of Sussex Cty., 738 F. Supp. 134, 142–43 (D. Del. 1990), aff’d 922 F.2d 832 (3d Cir. 1990), https://casetext.com/case/macnamara-v-county-council-of-sussex-cty; Sequoyah v. Tenn. Valley Auth., 480 F. Supp. 608, 611 (E.D. Tenn. 1979), aff’d, 620 F.2d 1159 (6th Cir. 1980), https://law.justia.com/cases/federal/district-courts/FSupp/480/608/1531244/; Upper W. Fork Watershed Ass’n. v. Corps of Eng’rs, U. S. Army, 414 F. Supp. 908, 931–32 (N.D. W.Va. 1976) aff’d, 556 F.2d 576 (4th Cir. 1977), https://case-law.vlex.com/vid/upper-w-fork-river-888909686; Pinkney v. Ohio Envtl. Prot. Agency, 375 F. Supp. 305, 310 (N.D. Ohio 1974), https://law.justia.com/cases/federal/district-courts/FSupp/375/305/1669423/; Hagedorn v. Union Carbide Corp., 363 F. Supp. 1061, 1064–65 (N.D. W. Va. 1973), https://law.justia.com/cases/federal/district-courts/FSupp/363/1061/2254534/; Tanner v. Armco Steel Corp., 340 F. Supp. 532, 537 (S.D. Tex. 1972), https://law.justia.com/cases/federal/district-courts/FSupp/340/532/1445551/.

4 Juliana v. United States, 947 F.3d 1159, 1169-70 (9th Cir. 2020), https://climatecasechart.com/case/juliana-v-united-states/.

5 Juliana v. United States, 217 F. Supp. 3d at 1248, https://climatecasechart.com/case/juliana-v-united-states/.

6 Ibid. at 1250.

7 Ibid.

8 Juliana v. United States, 339 F. Supp. 3d 1062, 1098 (D. Or. 2018), https://climatecasechart.com/case/juliana-v-united-states/; see also ibid. at 1104 (“Plaintiffs’ equal protection and due process claims both involve violation of a fundamental right and, as such, must be evaluated through the lens of strict scrutiny….”); Juliana v. United States, 2023 WL 9023339, D. Or. Dec. 29, 2023) (Opinion and Order) (reiterating its earlier ruling that “the right to a climate system that can sustain human life is fundamental to a free and ordered society.”), https://climatecasechart.com/case/juliana-v-united-states/.

9 Clean Air Council v. United States, 362 F. Supp. 3d 237 (E.D. Pa. 2019), https://climatecasechart.com/case/clean-air-council-v-united-states/.

10 While the U.S. constitution does not explicitly reference a right to a clean environment, several state constitutions do have such provisions. See, e.g., Haw. Const. Art. XI, § 9, https://lrb.hawaii.gov/constitution/; Illinois Const. Art. XI, § 2, https://ilga.gov/commission/lrb/con11.htm; Massachusetts Const. Art. XCVII, https://malegislature.gov/Laws/Constitution; Montana Const. Art. IX, § 1, https://www.umt.edu/montana-constitution/articles/article-ix/ix.1.php; New York Const. Art. I, § 19, https://codes.findlaw.com/ny/constitution-of-the-state-of-new-york/cns-art-i-sect-19/; Pennsylvania Const. Art. I, § 27, https://codes.findlaw.com/pa/constitution-of-the-commonwealth-of-pennsylvania/pa-const-art-1-sect-27/.

11 Held v. State of Montana, No. CDV-2020-307 (Findings of Fact, Conclusions of Law & Order) (Lewis & Clark County, Aug. 14, 2023) (quoting Mont. Const. Art. II, Sec. 3; Art. IX, Sec.1)), https://elaw.org/resource/us_heldvmontana_2023.

12 Ibid. Held v. Montana, DA 23-0575 (2024), https://static1.squarespace.com/static/655a2d016eb74e41dc292ed5/t/67632011c1785d7e7d8a8ac7/1734549521873/Opinion+-+Published.pdf; See also Montana Supreme Court Affirms Landmark Youth-Led Climate Decision, Upholding Constitutional Rights to a Safe and Livable Climate, Our Children’s Trust (2024), https://static1.squarespace.com/static/655a2d016eb74e41dc292ed5/t/6763275f2dceba3cbd2b8314/1734551391551/Held+MT+Supreme+Court+Decision+-+PR+Favorable.pdf. .

13 Navahine F. v. Hawai’i Department of Transportation 1CCV-22-0000631 (2024), https://climatecasechart.com/case/navahine-f-v-hawaii-department-of-transportation/.

14 Complaint for Declaratory and Injunctive Relief (2022), para. 2 https://climatecasechart.com/wp-content/uploads/case-documents/2022/20220601_docket-1CCV-22-0000631_complaint.pdf.

15 In re Maui Elec. Co., 150 Hawai‘i 528, 538 n.15, 506 P.3d 192, 202 n.15 (2022), https://case-law.vlex.com/vid/in-re-maui-elec-907372576.

16 Navahine v. HDOT, Civil No. 1CCV-22-0000631 (Joint Stipulation and Order re: Settlement) (June 24, 2024), https://navahinevhawaiidot.ourchildrenstrust.org/wp-content/uploads/2024/06/495-2024-6-20-Joint-Stipulation-and-Order-Re-Settlement.pdf.

17 Juliana v. United States, 217 F. Supp. 3d at 1260 n.13, https://climatecasechart.com/case/juliana-v-united-states/.

18 Juliana v. United States, 339 F. Supp. 3d 1062, https://climatecasechart.com/case/juliana-v-united-states/.

19 Ibid. at 1103.

20 42 U.S.C. § 7401 et seq., https://www.epa.gov/laws-regulations/summary-clean-air-act.

21 33 U.S.C. § 1251 et seq., https://www.epa.gov/enforcement/clean-water-act-cwa-and-federal-facilities.

22 Supra note 20 at § 300f et seq.

23 Supra note 20 at § 6901 et seq.

24 Supra note 20 at § 9601 et seq.

25 Supra note 20 at § 11001 et seq.

26 16 U.S.C. § 1531 et seq., https://www.fisheries.noaa.gov/national/endangered-species-conservation/endangered-species-act.

27 7 U.S.C. § 136 et seq., https://www.epa.gov/enforcement/federal-insecticide-fungicide-and-rodenticide-act-fifra-and-federal-facilities.

28 Supra note 20 at § 4321 et seq.

29 29 U.S.C. § 651 et seq., https://www.osha.gov/laws-regs/oshact/completeoshact.

30 Supra note 20 at § 13101 et seq.

31 15 U.S.C. § 2601 et seq., https://www.epa.gov/laws-regulations/summary-toxic-substances-control-act.

32 Public Law 117–169 [H.R. 5376], https://www.govinfo.gov/content/pkg/PLAW-117publ169/pdf/PLAW-117publ169.pdf.

33 Ibid.

34 See Overview: Key Federal Environmental Laws, FindLaw, https://smallbusiness.findlaw.com/business-laws-and-regulations/overview-key-federal-environmental-laws.html; David Y. Chung et al., Environmental Law and Practice in the United States: Overview, Thomson Reuters Practical Law (October 2017), https://content.next.westlaw.com/Document/I466099561c9011e38578f7ccc38dcbee/View/FullText.html; Philip J. Landrigan & Lynn R. Goldman, Children’s Vulnerability to Toxic Chemicals: A Challenge and Opportunity to Strengthen Health and Environmental Policy, Health Affairs 2011 (30)5, https://doi.org/10.1377/hlthaff.2011.0151.

35 Environmental Protection, GovTrack, https://www.govtrack.us/congress/bills/subjects/environmental_protection/6038.

36 EPA’s Policy on Evaluating Risk to Children, EPA, https://www.epa.gov/children/epas-policy-evaluating-risk-children; EPA, Policy on Evaluating Health Risks to Children (1995), https://www.epa.gov/sites/production/files/2014-05/documents/1995_childrens_health_policy_statement.pdf; EPA, Memorandum Re: New Policy on Evaluating Health Risks to Children (1995), https://www.epa.gov/sites/production/files/2014-05/documents/health_policy_cover_memo.pdf; EPA, Memorandum Re: Reaffirmation of the U.S. Environmental Protection Agency’s 1995 Policy on Evaluating Health Risks to Children (2013), https://www.epa.gov/sites/production/files/2014-05/documents/reaffirmation_memorandum.pdf; EPA, Memorandum Re: Reaffirmation Of EPA’s 1995 Policy on Evaluating Heath Risks to Children (2018), https://www.epa.gov/sites/production/files/2018-10/documents/childrens_health_policy_reaffirmation_memo.10.11.18.pdf.

37 EPA’s National Agenda to Protect Children’s Health from Environmental Threats, EPA, https://19january2017snapshot.epa.gov/children/epas-national-agenda-protect-childrens-health-environmental-threats_.html; EPA, Environmental Health Threats to Children (1996), https://www.epa.gov/sites/production/files/2014-05/documents/national_agenda_to_protect_childrens_health_from_environmental_threats.pdf.

38 Exec. Order No. 13,045, 62 Fed. Reg. 19885 (Ap. 21, 1997), https://www.govinfo.gov/content/pkg/FR-1997-04-23/pdf/97-10695.pdf; History of Children’s Environmental Health Protection at EPA, EPA, https://www.epa.gov/children/history-childrens-environmental-health-protection-epa.

39 About the Office of Children’s Health Protection (OCHP), EPA, https://www.epa.gov/aboutepa/about-office-childrens-health-protection-ochp.

40 See Protecting Children’s Environmental Health, EPA, available at: https://www.epa.gov/children.

41 Vapor Intrusion: VISL User’s Guide, EPA, https://www.epa.gov/vaporintrusion/visl-users-guide.

42 Toxics Release Inventory (TRI) Program: What is the Toxics Release Inventory?, EPA, https://www.epa.gov/toxics-release-inventory-tri-program/what-toxics-release-inventory.

43 Toxics Release Inventory (TRI) Program: TRI-Listed Chemicals, EPA, https://www.epa.gov/toxics-release-inventory-tri-program/tri-listed-chemicals.

44 TRI Toxics Tracker. Available at: https://edap.epa.gov/public/extensions/TRIToxicsTracker/TRIToxicsTracker.html#continue.

45 Toxic Chemicals and Children’s Health in North America: A Call for Efforts to Determine the Sources, Levels of Exposure, and Risks that Industrial Chemicals Pose to Children’s Health, CEC, http://www.cec.org/files/documents/publications/2280-toxic-chemicals-and-childrens-health-in-north-america-en.pdf.

46 Ibid.

47 Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949) (internal citations omitted), https://supreme.justia.com/cases/federal/us/336/281/; see also WesternGeco LLC v. ION Geophysical Corp., 138 S. Ct. 2129, 2136 (2018) (“Courts presume that federal statutes ‘apply only within the territorial jurisdiction of the United States.’”), https://casetext.com/case/westerngeco-llc-v-ion-geophysical-corp-23.

48 EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991), https://supreme.justia.com/cases/federal/us/499/244/.

49 See, e.g., Environmental Defense Fund v. Massey, 986 F.2d 528, 531-532 (D.C. Cir. 1993) (holding that presumption against extraterritoriality does not apply where (1) a clearly expressed Congressional intention exists to extend the scope of the statute to conduct occurring in other sovereign nations; (2) the failure to extend the scope of the statute to a foreign setting will result in adverse effects within the United States; or (3) the regulated conduct occurs within the United States; also noting the distinction that the presumption against extraterritoriality applies with much less force with respect to places over which the U.S. has some measure of legislative control, including “global commons” areas such as, in that case, Antarctica, which has no sovereign), https://casetext.com/case/environmental-defense-fund-inc-v-massey-2; Lujan v. Defenders of Wildlife, 504 U.S. 555, 585-586 (1992) (applying the principle to the Endangered Species Act), https://supreme.justia.com/cases/federal/us/504/555/; Amlon Metals, Inc. v. FMC Corp., 775 F. Supp. 668 (S.D.N.Y. 1991) (holding that the RCRA should not be applied extraterritorially to waste shipped to England), https://law.justia.com/cases/federal/district-courts/FSupp/775/668/1555643/; ARC Ecology v. United States Dep’t of the Air Force, 411 F.3d 1092 (9th Cir. 2005) (holding CERCLA should not be applied extraterritorially to environmental pollution issues at former U.S. military base in Philippines), https://casetext.com/case/arc-ecology-v-us-dept-of-air-force; and United States v. Mitchell, 553 F.2d 996, 1003 (5th Cir. 1977) (holding that MMPA is not applied to foreign waters), https://casetext.com/case/united-states-v-mitchell-85.

50 See Katherine A. Rouse, Holding the EPA Accountable: Judicial Construction of Environmental Citizen Suit Provisions, 93 N.Y.U. L. REV. 1271 (2018), https://nyulawreview.org/issues/volume-93-number-5/holding-the-epa-accountable-judicial-construction-of-environmental-citizen-suit-provisions/.

51 Citizen suit, Merriam-Webster.com Legal Dictionary, https://www.merriam-webster.com/legal/citizen%20suit.

52 James R. May, Now More than Ever: Trends in Environmental Citizen Suits at 30, 10 Widener L. Rev. 1, 2 n.3 (2003), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1334221.

53 Supra note 20 at § 7604(a) (2018).

54 Ibid., § 7604.

55 Supra note 21. § 1365(a) (2018).

56 Supra note 26 at § 1540(a) (2018).

57 Supra note 53, § 6972(a).

58 43 U.S.C. § 1349(a)(1) (2018)

59 Supra note 53, § 9659(a).

60 Supra note 31 at § 2619(a) (2018).

61 Supra note 53, § 300j-8(a).

62 Ibid., § 11046(a).

63 See Ilyssa Birnbach, Newly Imposed Limitations on Citizens’ Right to Sue for Standing in a Procedural Rights Case, 9 Fordham Envtl L. Rev. 311 (2017), https://ir.lawnet.fordham.edu/elr/vol9/iss2/3/.

64 5 U.S.C. § 702 (2018).

65 Basic Information on Enforcement, EPA, https://www.epa.gov/enforcement/basic-information-enforcement.

66 Ibid.

67 Ibid.

68 Ibid.

69 Supra note 53, § 1983 (2018); Gomez v. Toledo, 446 U.S. 635, 638 (1980), https://supreme.justia.com/cases/federal/us/446/635/.

70 U.S. Const. amend. V, https://constitution.congress.gov/constitution/amendment-5/

71 Reno v. Flores, 507 U.S. 292, 302 (1993), https://supreme.justia.com/cases/federal/us/507/292/.

72 Juliana v. United States, 217 F. Supp. 3d at 1250 (internal citations omitted), https://climatecasechart.com/case/juliana-v-united-states/.

73 Ibid. On appeal, the United States Court of Appeals for the Ninth Circuit held that plaintiffs in Juliana lacked Article III standing due to redressability concerns. However, although the Ninth Circuit noted that “[r]easonable jurists can disagree about whether the asserted constitutional right exists,” the Court for its purposes assumed the existence of the right and thus did not overturn the lower court’s holding on this point. Juliana v. United States, 947 F.3d at 1169-1170 (9th Cir. 2020).

74 Juliana, 217 F. Supp. 3d at 1251, https://climatecasechart.com/case/juliana-v-united-states/.

75 Ibid.

76 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), https://supreme.justia.com/cases/federal/us/504/555/.

77 Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1034 (8th Cir. 2010), https://casetext.com/case/avritt-v-reliastar-life-ins-co.

78 Juliana v. United States, 217 F. Supp. 3d at 1242 (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)), https://climatecasechart.com/case/juliana-v-united-states/.

79 Ibid. (citing Wash. Envtl. Council v. Bellon, 732 F.3d 1131, 1140 (9th Cir. 2013)).

80 Juliana v. United States, 947 F.3d at 1169, https://climatecasechart.com/case/juliana-v-united-states/.

81 Massachusetts v. EPA, 549 U.S. 497, 525 (2007), https://supreme.justia.com/cases/federal/us/549/497/.


82 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000), https://supreme.justia.com/cases/federal/us/528/167/.

83 Bellotti v. Baird, 443 U.S. 622, 633 (1979) (plurality opinion), https://supreme.justia.com/cases/federal/us/443/622/.

84 See Donald T. Kramer, Legal Rights of Children (1994), Part IV, § 12.1; see also 67A C.J.S. Parent and Child § 337.

85 Fed. R. Civ. P. 17(c), https://www.law.cornell.edu/rules/frcp/rule_17.

86 Ibid.

87 Steve Gold, Causation in Toxic Torts: Burden of Proof, Standards of Persuasion, and Statistical Evidence, 96 Yale L. J. 376, 378 (1986), https://openyls.law.yale.edu/handle/20.500.13051/16452.

88 David E. Bernstein, Getting to Causation in Toxic Tort Cases, 74 Brooklyn L. Rev. 51, 52 (2008), https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1453&context=blr.

89 Ibid. at 55.

90 3 Treatise on Environmental Law § 4A.03 (2020).

91 Ibid.

92 Ibid.

93 Ibid.

94 Ibid.

95 Owens v. Okure, 488 U.S. 235, 250 (1989), https://supreme.justia.com/cases/federal/us/488/235/.

96 28 U.S.C. § 2401 (2018) (“every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues”), https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section2401&num=0&edition=prelim.


97 Ibid. at § 2462 (2018) (“an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued…”). See also Lisa Marie Kuhn, The Clean Water Act: Citizen Suits No Longer a Valid Enforcement Tool for Past Violations, 34 Wash. U. J. Urb. & Contemp. L. 413, 417 n.21 (1988), https://openscholarship.wustl.edu/law_urbanlaw/vol34/iss1/15/; Sierra Club v. Simkins Indus., Inc., 617 F. Supp. 1120, 1125 (D. Md. 1985), https://law.justia.com/cases/federal/district-courts/FSupp/617/1120/2246482/. The RCRA similarly does not include a statute of limitations, and courts have therefore applied a five-year limitations period to RCRA citizen suits, as well. See https://www.americanbar.org/groups/litigation/committees/environmental-energy/practice/2019/rcra-citizen-suits-you-must-first-provide-notice/.

98 Supra note 90.

99 Supra note 20 at § 9658 (2018).

100 United Nations Office on Drugs and Crime, Global Study On Legal Aid: Country Profiles, 522 (2016), https://www.unodc.org/documents/justice-and-prison-reform/LegalAid/GSLA_-_Country_Profiles.pdf.

101 Earthjustice, https://earthjustice.org/; Natural Resources Defense Council, https://www.nrdc.org/; and Our Children’s Trust, https://www.ourchildrenstrust.org/.

102 2 Environmental Law Practice Guide § 11B.08 (2020).

103 Arlington Coalition on Transp. v. Volpe, 458 F.2d 1323, 1331-32 (4th Cir.), cert. denied, 409 U.S. 1000, 93 S. Ct. 312, 34 L. Ed. 2d 261 (1972), https://casetext.com/case/arlington-coalition-on-trans-v-volpe.

104 Fed. R. Civ. P. 65(b), https://www.law.cornell.edu/rules/frcp/rule_65.

105 Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 546 n.12, 107 S. Ct. 1396, 1404 n.12, 94 L. Ed. 2d 542, 556 n.12 (1987), https://supreme.justia.com/cases/federal/us/480/531/.

106 Fund for Animals v. Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992), https://casetext.com/case/fund-for-animals-inc-v-lujan-2; North Carolina v. City of Virginia Beach, 951 F.2d 596, 606 (4th Cir. 1991), https://casetext.com/case/state-of-nc-v-city-of-virginia-beach; Sylvester v. United States Army Corps of Engineers, 884 F.2d 394, 397, 871 F.2d 817 (9th Cir. 1989), https://casetext.com/case/sylvester-v-us-army-corps-of-engineers.

107 Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S. Ct. 1798, 72 L. Ed. 2d 91 (1982), https://supreme.justia.com/cases/federal/us/456/305/; New England Legal Found. v. Costle, 666 F.2d 30 (2d Cir. 1981), https://casetext.com/case/new-england-legal-foundation-v-costle.

108 Harrison v. Indiana Auto Shredders Co., 528 F.2d 1107 (7th Cir. 1976), https://casetext.com/case/harrison-v-indiana-auto-shredders-co; Spur Industries v. Del. E. Webb Dev. Co., 108 Ariz. 178, 494 P.2d 700 (1972), https://law.justia.com/cases/arizona/supreme-court/1972/10410-0.html.

109 Supra note 96 at § 2201(a).

110 Avondale Industries, Inc. v. Travelers Indemnity Corp., 887 F.2d 1200 (2d Cir. 1989), reh’g denied, 894 F.2d 498, cert. denied, 496 U.S. 906, 110 S. Ct. 2588, 110 L. Ed. 2d 269 (1990), https://casetext.com/case/avondale-industries-inc-v-travelers-indem-2; Powers Chemco, Inc. v. Federal Ins. Co., 74 N.Y.2d 910, 549 N.Y.S.2d 650, 548 N.E.2d 1301 (1989), https://casetext.com/case/powers-chemco-inc-v-federal-insurance-co-1.

111 The oil spill fund covers certain other damages in addition to natural resources, e.g., https://www.epa.gov/oil-spills-prevention-and-preparedness-regulations/oil-spill-liability-trust-fund.

112 Sterling v. Velsicol Chemical Co., 647 F. Supp. 303 (W.D. Tenn. 1986), https://law.justia.com/cases/federal/district-courts/FSupp/647/303/2360375/; T & E Industries v. Safety Light Corp., 123 N.J. 371, 587 A.2d 1249 (1991), https://law.justia.com/cases/new-jersey/supreme-court/1991/123-n-j-371-1.html; Werlein v. United States, 746 F. Supp. 887 (D. Minn. 1990), vacated in part, 793 F. Supp. 898 (D. Minn. 1992), https://law.justia.com/cases/federal/district-courts/FSupp/746/887/1756573/; Ewell v. Petro Processors, 364 So. 2d 604 (La. Ct. App. 1978), cert. denied, 366 So. 2d 575 (1979), https://casetext.com/case/ewell-v-petro-processors-of-louisiana-1. But see Ayers v. Township of Jackson, 106 N.J. 557, 525 A.2d 287 (1987) (no damages against municipality for emotional distress absent medical expenses under New Jersey statute).

113 Louisiana v. M/V Testbank, 728 F.2d 748 (5th Cir. 1984), aff’d en banc, 752 F.2d 1019, cert. denied sub nom. White v. M/V Testbank, 477 U.S. 903, 106 S. Ct. 3271, 91 L. Ed. 2d 562 (1986), https://casetext.com/case/state-of-la-ex-rel-guste-v-mv-testbank-4.


114 Miller v. Cudahy Co., 656 F. Supp. 316 (D. Kan. 1987), modified on other grounds, 858 F.2d 1449 (10th Cir. 1988), cert. denied, 492 U.S. 926, 109 S. Ct. 3265, 106 L. Ed. 2d 610 (1989); Branch v. Western Petroleum Co., 657 P.2d 267, 76 O.&G.R. 144 (Utah 1982), https://law.justia.com/cases/utah/supreme-court/1982/17178-0.html.

115 Marshall v. El Paso Natural Gas Co., 874 F.2d 1373, 105 O.&G.R. 532 (10th Cir. 1989) (wanton and reckless disregard); Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985) (consider nature of act and motivation of tortfeasor), https://law.justia.com/cases/pennsylvania/supreme-court/1985/508-pa-154-1.html.

116 See 33 U.S.C. § 1319(d) (CWA); Supra note 20 at § 7413(b) (CAA); Supra note 20 at § 6928(g) (Resource Conservation and Recovery Act (“RCRA”)).

117 33 U.S.C. § 1319(c) (CWA); Supra note 20 at § 7413(c) (CAA); Supra note 20 at § 6928(d) (RCRA).

118 Supra note 20 at § 6928(e). The constitutionality of this statute was upheld and a claim of vagueness rejected in United States v. Protex Industries, Inc., 874 F.2d 740 (10th Cir. 1989).

119 United States v. Frezzo Bros., Inc., 461 F. Supp. 266 (E.D. Pa. 1978), aff’d, 602 F.2d 1123 (3d Cir. 1979), cert. denied, 444 U.S. 1074, 100 S. Ct. 1020, 62 L. Ed. 2d 756 (1980).

120 Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011 (2d Cir. 1983); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971) (failure to prepare adequate record for review); Scenic Hudson Preservation Conference v. Federal Power Comm’n, 354 F.2d 608 (2d Cir. 1965), cert. denied, 384 U.S. 941, 86 S. Ct. 1462, 16 L. Ed. 2d 540 (1966) (failure to hear admissible evidence); Westbury v. Department of Transp., 75 N.Y.2d 62, 550 N.Y.S.2d 604, 549 N.E.2d 1175 (1989) (failure to prepare adequate environmental impact statement); Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694, reh’g denied, 468 U.S. 1227, 105 S. Ct. 28, 29, 105 S. Ct. 29, 82 L. Ed. 2d 921 (1984).

121 Juliana v. United States, 947 F.3d at 1169-70, https://climatecasechart.com/case/juliana-v-united-states/.

122 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), https://supreme.justia.com/cases/federal/us/347/483/.

123 2 Environmental Law Practice Guide § 11A.04 (2020).

124 Codified at 40 C.F.R. Part 22, https://www.ecfr.gov/current/title-40/chapter-I/subchapter-A/part-22.

125 Such proceedings are governed by procedural rules codified at Ibid. Part 164, https://www.ecfr.gov/current/title-40/chapter-I/subchapter-E/part-164?toc=1.

126 Gregory v. Chicago, 394 U.S. 111, 112 (1969), https://supreme.justia.com/cases/federal/us/394/111/.

127 Edwards v. South Carolina, 83 S. Ct. 680 (1963), https://supreme.justia.com/cases/federal/us/372/229/.

128 Ibid. at 684.

129 Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984), https://supreme.justia.com/cases/federal/us/468/288/.

130 Vera Eidelman, Can Schools Discipline Students for Protesting? American Civil Liberties Union (2018), https://www.aclu.org/blog/free-speech/student-speech-and-privacy/can-schools-discipline-students-protesting.

131 Ibid.

132 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969), https://supreme.justia.com/cases/federal/us/393/503/.

133 Ibid. at 506.

134 Morse v. Frederick, 551 U.S. 393, 404-405 (U.S. June 25, 2007), https://supreme.justia.com/cases/federal/us/551/393/.

135 Ibid.

136 Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266-267 (U.S. January 13, 1988), https://supreme.justia.com/cases/federal/us/484/260/.

137 Tinker at 513.

138 Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 680 (1986), https://supreme.justia.com/cases/federal/us/478/675/.

139 Supra note 136 at 272-73.

140 Supra note 134 at 406.

141 Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984), https://supreme.justia.com/cases/federal/us/468/609/.

142 Dallas v. Stanglin, 490 U.S. 19 (1989), https://supreme.justia.com/cases/federal/us/490/19/.

143 New York v. Ferber, 458 U.S. 747, 756-57 (1982), https://supreme.justia.com/cases/federal/us/458/747/.

144 Prince v. Massachusetts, 321 U.S. 158, 168 (1944), https://supreme.justia.com/cases/federal/us/321/158/.

145 See 5 U.S. Code § 552, https://www.law.cornell.edu/uscode/text/5/552.

146 United States Department of Justice, “What are the 9 FOIA Exemptions?”, https://www.justice.gov/d9/what_are_the_9_foia_exemptions.pdf.

147 Ginsberg v. New York, 390 U.S. 629 (1968), https://supreme.justia.com/cases/federal/us/390/629/.

148 Public Law 96-88, https://www.govinfo.gov/content/pkg/STATUTE-93/pdf/STATUTE-93-Pg668.pdf.

149 34 CFR §81, https://www.ecfr.gov/current/title-34/subtitle-A/part-81.

150 Public Law 89-10, https://www.govinfo.gov/content/pkg/STATUTE-79/pdf/STATUTE-79-Pg27.pdf.

151 About the Standards, Common Core State Standards Initiative About the Standards Comments, https://corestandards.org/ [accessed on January 2025].

152 Get to Know the Standards, Next Generation Science Standards, https://www.nextgenscience.org/get-to-know.

153 Jennifer Clare Ball, New Science Standards Bring Climate to the Classroom (Earth Island Journal 2023), https://www.earthisland.org/journal/index.php/articles/entry/new-science-standards-bring-climate-to-classroom/.

154 Ibid.; Emily Fano, The Case for Climate Education in New York State (Waterwire 2024), https://waterfrontalliance.org/2024/08/29/the-case-for-climate-education-in-new-york-state/.