public rights doctrine

In Florida, the State owns in trust for the public the land permanently submerged beneath navigable waters and the foreshore, making the mean high-water line the ordinary boundary between private beachfront property and state-owned land. Littoral owners hold special rights with regard to the water and foreshore, including the right to receive accretions and relictions to their property. In 1961, Florida’s Legislature passed the Beach and Shore Preservation Act, which sets procedures for beach restoration and nourishment projects to deposit sand on eroded beaches. A local government may apply to the Department of Environmental Protection for funds and permits, and when placing fill on the State’s submerged lands, authorization from the Board of Trustees of the Internal Improvement Trust Fund is required. Once a beach restoration is determined to be undertaken, the Board sets an erosion control line that replaces the fluctuating mean high-water line as the boundary between privately owned littoral property and state property, after which the common law ceases to increase upland property by accretion. In 2003, the city of Destin and Walton County applied for permits to restore 6.9 miles of beach within their jurisdictions that had been eroded by several hurricanes. The project would add about 75 feet of dry sand seaward of the mean high-water line. The Department issued a notice of intent to award the permits, and the Board approved the erosion-control line. Stop the Beach Renourishment, Inc., a nonprofit corporation formed by people who own beachfront property bordering the project area, brought an administrative challenge to the proposed project. After the challenge proved unsuccessful and the Department approved the permits, the corporation challenged the action in state court under the Florida Administrative Procedure Act. The District Court of Appeal for the First District set aside the Department’s final order and certified a question to the Florida Supreme Court. The Florida Supreme Court answered the certified question in the negative and quashed the First District’s remand. Petitioner sought rehearing on the ground that the Florida Supreme Court’s decision itself effected a taking of the Members’ littoral rights contrary to the Fifth and Fourteenth Amendments, but the request for rehearing was denied. The United States Supreme Court granted certiorari to review the case.

The Nollans own a beachfront lot in Ventura County, California. A concrete seawall approximately eight feet high separates the beach portion of their property from the rest of the lot. The historic mean high tide line determines the lot's oceanside boundary. The Nollans originally leased their property with an option to buy, and the building on the lot was a small bungalow totaling 504 square feet. The Nollans' option to purchase was conditioned on their promise to demolish the bungalow and replace it. On February 25, 1982, they submitted a permit application to the California Coastal Commission proposing to demolish the existing structure and replace it with a three-bedroom house. The Commission informed them that the permit would be granted subject to the condition that they allow the public an easement to pass across a portion of their property bounded by the mean high tide line and their seawall. On June 3, 1982, the Nollans filed a petition for writ of administrative mandamus in the Ventura County Superior Court to invalidate the access condition. The court remanded the case to the Commission for a full evidentiary hearing. After the hearing, the Commission reaffirmed the condition. The Superior Court ruled in favor of the Nollans on statutory grounds and directed that the permit condition be struck. While the Commission's appeal to the California Court of Appeal was pending, the Nollans tore down the bungalow, built the new house, and bought the property. The Court of Appeal reversed the Superior Court. The Nollans appealed to this Court, raising only the constitutional question.

In July 2004, two groups of plaintiffs filed separate complaints in the Southern District of New York against the same five major electric power companies. The first group included eight States and New York City. The second group joined three nonprofit land trusts. The defendants were four private companies and the Tennessee Valley Authority, a federally owned corporation. According to the complaints, the defendants are the five largest emitters of carbon dioxide in the United States, with collective annual emissions of 650 million tons constituting 25 percent of emissions from the domestic electric power sector. The plaintiffs asserted that by contributing to global warming, the defendants’ carbon-dioxide emissions created a substantial and unreasonable interference with public rights, in violation of the federal common law of interstate nuisance or state tort law. The States and New York City alleged that public lands, infrastructure, and health were at risk from climate change. The trusts urged that climate change would destroy habitats for animals and rare species on land they owned and conserved. All plaintiffs sought injunctive relief requiring each defendant to cap its carbon dioxide emissions and then reduce them by a specified percentage each year for at least a decade. The District Court dismissed both suits as presenting non-justiciable political questions. The Second Circuit reversed. On threshold questions, the Court of Appeals held that the suits were not barred by the political question doctrine and that the plaintiffs had adequately alleged Article III standing. Turning to the merits, the Second Circuit held that all plaintiffs had stated a claim under the federal common law of nuisance and that the Clean Air Act did not displace federal common law. Responding to the Supreme Court’s 2007 decision in Massachusetts v. EPA, the Environmental Protection Agency undertook greenhouse gas regulation. In December 2009, the Agency concluded that greenhouse gas emissions from motor vehicles cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare. EPA issued a joint final rule regulating emissions from light-duty vehicles and initiated a joint rulemaking covering medium- and heavy-duty vehicles. EPA also began phasing in requirements that new or modified major greenhouse gas emitting facilities use the best available control technology and commenced a rulemaking under section 111 of the Act to set limits on greenhouse gas emissions from new, modified, and existing fossil-fuel fired powerplants. The Supreme Court granted certiorari in 2010. Four Members of the Court would hold that at least some plaintiffs have Article III standing under Massachusetts v. EPA, while four Members would hold that none of the plaintiffs have Article III standing. The Court therefore affirmed, by an equally divided Court, the Second Circuit’s exercise of jurisdiction and proceeded to the merits.

In 1973 Congress enacted the Endangered Species Act to protect species of animals against threats to their continuing existence caused by man. In 1978 the Fish and Wildlife Service and National Marine Fisheries Service issued a joint regulation interpreting section 7(a)(2) to require federal agencies to consult with the Secretary of the Interior on actions taken in foreign nations. In 1986 the Secretary promulgated a revised regulation that limited the consultation obligation to actions within the United States or on the high seas. Shortly after the 1986 regulation took effect, Defenders of Wildlife and other environmental organizations filed suit in the United States District Court for the District of Minnesota against the Secretary of the Interior. The complaint sought a declaratory judgment that the regulation was invalid as to its geographic scope and an injunction requiring the Secretary to promulgate a new regulation mandating consultation for foreign projects. The complaint alleged that the absence of consultation would increase the rate of extinction of endangered and threatened species. The complaint further alleged that some of the organizations' members observed these species both domestically and abroad. Respondents supported their allegations with affidavits from two members. Joyce Kelly stated that she had traveled to Egypt in 1986, observed the habitat of the endangered Nile crocodile, and intended to return. Kelly further stated that she would suffer harm from the United States role in the rehabilitation of the Aswan High Dam. Amy Skilbred stated that she had traveled to Sri Lanka in 1981, observed the habitat of endangered species including the Asian elephant and leopard at the site of the Mahaweli project funded by the Agency for International Development, and intended to return. Skilbred admitted she had no current plans to return because of a civil war. The District Court dismissed the complaint for lack of standing. The Court of Appeals for the Eighth Circuit reversed. On remand the District Court denied the Secretary's motion for summary judgment on standing. The District Court granted respondents' motion for summary judgment on the merits and enjoined the Secretary from applying the regulation to foreign countries. The Eighth Circuit affirmed. The Supreme Court granted certiorari.