2026

You Can’t Have Your Cake and Eat It, Too: How the Endangerment Finding Rescission Clears the Path for More State Climate Action

April 1, 2026
Administrative Law, Energy Law, Environmental Law, Torts Law

Eli Dotson, MJLST Staffer

In the decade since the landmark 2015 Paris Climate Agreement, the governments of the world have fallen far short of their greenhouse gas (GHG) emission reduction pledges.[1] Climate change is intensifying: rising emissions have breached key CO2e and temperature thresholds and are destabilizing the biosphere.[2] In the U.S., the lack of sufficient action at the federal level was recently exacerbated by the Trump Administration’s rescission of the Endangerment Finding, a key Environmental Protection Agency (EPA) rule that served as the foundation for GHG regulation under the Clean Air Act (CAA).[3] But there may be a silver lining: the federal government’s abdication of authority may have inadvertently handed states a significant advantage in ongoing legal battles over two innovative climate regulation strategies. Minnesota is perfectly positioned to exploit this advantage and lead the next wave of state climate accountability.

First, on the policy front, Vermont and New York led the nation in passing “Climate Superfund” laws in 2024.[4] Taking inspiration from the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or “Superfund”), these statutes establish strict liability for parties with a significant nexus to the state that extracted or refined fossil fuels during recent decades.[5] These responsible parties would be forced to pay cost-recovery damages based on their share of GHG emissions, with payments going to a program fund that would finance climate adaptation projects.[6] Both statutes remain mired in litigation challenging their constitutionality. A coalition of private plaintiffs including the U.S. Chamber of Commerce and the American Petroleum Institute mounted challenges in federal court in both Vermont and New York; President Trump also issued Executive Order 14260 instructing the Attorney General to take action against both statutes, which the Department of Justice did in May 2025.[7]

Second, on the litigation side, local governments in at least ten states have sued Big Oil companies for damages related to their GHG emissions, typically under common law tort claims like nuisance.[8] The Second Circuit denied New York City’s attempt to recover from four Big Oil companies in 2021,[9] while Hawaii’s Supreme Court allowed Honolulu’s suit against Big Oil to proceed in 2023, explicitly condemning the Second Circuit’s reasoning.[10] Although it denied certiorari in the Hawaii appeal, the U.S. Supreme Court could potentially resolve the split this term in County Commissioners of Boulder County v. Suncor Energy USA, Inc.; environmental advocates see the Supreme Court’s decision to grant cert as a bad omen.[11]

One key legal issue underlies both the Climate Superfund and climate tort litigation: the preemptory scope of the CAA vis-à-vis GHG emission regulation. Though not intended for GHG regulation when originally drafted, the CAA was shoehorned into that role via the Supreme Court’s 2007 decision in Massachusetts v. EPA and the EPA’s subsequent Endangerment Finding.[12] Numerous federal courts have found that the CAA preempts federal common law tort claims.[13] However, the parties opposing liability for fossil fuel companies in the litigation discussed above proffer a different, largely untested theory: they allege that, via field preemption and conflict preemption, state and local statutory and common law attempts to recover damages for GHG emissions are displaced by the CAA’s comprehensive air pollution regulation scheme.[14] This aligns with EPA’s recent contradictory statement that “the CAA also continues to preempt state common-law claims and statutes that seek to regulate out-of-state emissions”[15]—apparently arguing that preemption extends to litigation seeking remedies for harms caused by GHG emissions.[16]

This is where the Trump Administration’s effort to dismantle federal climate regulation could backfire. The EPA is asserting that it lacks statutory authority under the CAA to regulate GHG as “air pollutants,” which now must “threaten health or welfare through local or regional exposure” in order to fall into EPA’s regulatory bailiwick.[17] Since the EPA is forfeiting its statutory authority to regulate GHG, any argument for federal field preemption collapses because no “comprehensive regulatory scheme” can exist. While opponents may argue that the preemption derives from the CAA’s statutory text rather than EPA’s regulatory choices, that argument grows considerably weaker when the agency itself has disclaimed the authority Congress supposedly delegated. Simply put, the parties opposing GHG emissions regulation cannot have their cake and eat it, too. Either the federal government has authority to regulate GHG emissions under the CAA, or states must be allowed to do so. Rescinding the Endangerment Finding necessarily creates constitutional space for state and local governments to take broader action.

Minnesota legislators are contemplating the opportunity to occupy this vacant climate policy space with a Climate Superfund Law: on March 4, 2026, the Greenhouse Gas Pollution Superfund Act (GGPSA) was introduced into the Minnesota Senate.[18] The Supreme Court could tangentially cast doubt on the constitutionality of the GGPSA via Commissioners of Boulder County (which deals with common law tort claims, not statutory claims). But Minnesota could still seize the current opportunity and learn from the litigation in Vermont and New York. A more narrowly tailored Climate Superfund law that draws a more circumscribed zone of liability for GHG emissions would preclude claims of extraterritorial regulation and interstate commerce clause violation like those that have plagued the Vermont and New York laws.[19] For example, damages could be explicitly tied only to emissions from fossil fuels that were extracted or refined in the state of Minnesota (rather than global emissions) by slightly revising the definition of “Covered greenhouse gas emissions” in the bill. Adapting the statute in this manner could reduce industry opposition (and litigation expenses) and increase the ultimate likelihood of recovery.

The Big Oil companies that are the target of Climate Superfund laws and climate tort lawsuits supply the global economy with a critical input which has driven massive increases in material prosperity. Yet their product also indisputably threatens the stability of earth’s climatic system, and for decades they have waged systematic disinformation, lobbying, and mercenary science campaigns to block common-sense climate policies.[20] Big Oil companies have also extracted enormous wealth from the earth’s natural resources—the five oil majors earned a total of $102 billion in profits and paid their CEOs $104 million in 2024 alone.[21] Holding these corporations accountable for their deception and obstruction by requiring them to pay their fair share of externalities is a just solution that will shift the cost of climate adaptation from the public to those directly responsible.

The Trump Administration’s decision to rescind the Endangerment Finding was intended to shield the fossil fuel industry from federal regulation. In doing so, it may have exposed the industry to something worse: a patchwork of state liability regimes with no federal preemption to hide behind. By stripping away the federal preemption shield, the Trump Administration has potentially handed every state in the union a sword, and Minnesota is perfectly positioned to take the first swing.

 

Notes

[1] Joint Research Centre, G20 Climate Strategies Insufficient to Meet Paris Agreement Goals, Eur. Comm’n (Jan. 31, 2025), https://joint-research-centre.ec.europa.eu/jrc-news-and-updates/g20-climate-strategies-insufficient-meet-paris-agreement-goals-2025-01-31_en.

[2] Isabelle Boscaro-Clarke et al., Global Climate Highlights 2025, Copernicus Climate Change Serv. (Jan. 28, 2026),  https://climate.copernicus.eu/sites/default/files/custom-uploads/GCH-2025/GCH2025-full-report.pdf.

[3] Rescission of the Greenhouse Gas Endangerment Finding and Motor Vehicle Greenhouse Gas Emission Standards Under the Clean Air Act, 91 Fed. Reg. 7686 (Feb. 18, 2026) (to be codified at 40 C.F.R. pts. 85, 86, 600, 1036, 1037, 1039).

[4] Jack Raffetto & Rose Quam-Wickham, Vermont and New York Climate Acts are First in a Wave of Likely Climate Change Cost Recovery Laws, Sidley Austin LLP,  (June 20, 2024), https://www.sidley.com/en/insights/newsupdates/2024/06/vermont-and-new-york-climate-acts-are-first-in-a-wave-of-likely-climate-change-cost-recovery-laws.

[5] Id.

[6] Id.

[7] Kristina McKean, The Pending Fate of Climate Superfund Statutes, Geo. Env. L. Rev. (Jan. 29, 2026), https://www.law.georgetown.edu/environmental-law-review/blog/the-pending-fate-of-climate-superfund-statutes/.

[8] Center for Climate Integrity, Big Oil Accountability Lawsuits (2026), https://climateintegrity.org/lawsuits; see also Miranda Green, The Supreme Court Case That Could End Local Climate Suits, Atmos (Mar. 4, 2026), https://atmos.earth/political-landscapes/the-supreme-court-case-that-could-end-local-climate-suits/.

[9] City of N.Y. v. Chevron Corp., 993 F.3d 81, 85 (2d Cir. 2021).

[10] City & Cnty. of Honolulu v. Sunoco LP, 153 Haw. 326, 349 (2023).

[11] Suncor Energy Inc., vs. County Commissioners of Boulder County, Docket No. 25-170 (U.S. Aug 12, 2025); see also Green, supra note 8.

[12] Jody Freeman, Beyond ‘Endangerment’: Finding a Way Forward for U.S. on Climate, Yale Env’t 360 (Mar. 3, 2026), https://e360.yale.edu/features/endangerment-finding.

[13] City & Cnty. Of Honolulu, 153 Haw. at 349.

[14] Complaint for Declaratory and Injunctive Relief at 14, United States of America et al v. State of Vermont et al, Docket No. 2:25-cv-00463 (D. Vt. May 01, 2025).

[15] See Rescission of the Greenhouse Gas Endangerment Finding and Motor Vehicle Greenhouse Gas Emission Standards Under the Clean Air Act, supra note 3.

[16] Eric Christensen et al., EPA Strikes at the Roots of Federal GHG Regulations, Rescinds Endangerment Finding for Motor Vehicles, Beveridge & Diamond (Feb. 13, 2026), https://www.bdlaw.com/publications/epa-strikes-at-the-roots-of-federal-ghg-regulations-rescinds-endangerment-finding-for-motor-vehicles/.

[17] See Rescission of the Greenhouse Gas Endangerment Finding and Motor Vehicle Greenhouse Gas Emission Standards Under the Clean Air Act, supra note 3.

[18] S.F. 4126, 94th Leg., Reg. Sess. (Minn. 2026).

[19] Complaint, supra note 14 at 17-22.

[20] Zanagee Artis, Unveiling Big Oil’s Campaign of Lies, NRDC News & Comment. (May 10, 2024), https://www.nrdc.org/bio/zanagee-artis/unveiling-big-oils-campaign-lies.

[21] Energy Profits, History-making Profits. World-ending Emissions. (June 2025), https://energy-profits.org/.

Closing the Reporting Gap: Building a Legal Framework for Reporting Serious Online Threats

March 24, 2026
Artificial Intelligence, Law Enforcement, Privacy, Public Safety

Heather Van Dort, MJLST Staffer

On February 12, 2026, Canada experienced one of the deadliest mass shootings in its history.[1] The shooting in Tumbler Ridge, British Columbia, claimed the lives of eight people and left another twenty-seven injured.[2] Months before the shooting, in June 2025, the suspect was banned from ChatGPT after they described concerning scenarios about gun violence to the chatbot.[3] OpenAI’s automated review system flagged the suspect’s posts, and about a dozen staffers subsequently reviewed the posts.[4] After internal deliberations, the company banned the account, but decided that the suspect’s activity did not meet the criteria necessary for reporting to law enforcement because there was no credible, imminent threat of harm.[5] It was not until after the shooting that OpenAI reached out to local authorities to share information regarding the suspect’s account.[6] Still, OpenAI did not violate any Canadian law, nor would it have violated any American law if these events had taken place within the United States.[7] In response to the tragedy, Canadian officials met with OpenAI officials in February, but OpenAI could not offer any new substantial safety measures to address situations in which it flags concerning content.[8] This incident highlights the lack of sufficient government oversight of the review policies that technology companies implement to determine when to disclose information to law enforcement.

OpenAI’s current policy (effective Jan. 1, 2026) for reporting to law enforcement permits the disclosure of user data if it believes that the disclosure is necessary “to prevent an emergency involving danger of death or serious physical injury to a person.”[9] This policy is consistent with the current disclosure requirements in the United States under the Stored Communications Act (“Act”).[10] Generally, the Act prohibits electronic communication service providers (“providers”) from disclosing customer data to governmental entities, but it contains an exception for emergencies.[11] Specifically, it allows providers to disclose the contents of customer communication if it “in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay.”[12] However, there is nothing in the Act, nor any other U.S. law, which requires providers to disclose credible, serious threats to law enforcement.[13] As a result, providers are left to their own discretion to decide when user communications on their platforms are sufficiently concerning to justify reporting to law enforcement. This gap in the regulatory framework puts providers in a difficult position of deciding when to disclose closely held consumer data without clear guidelines, which subsequently leaves citizens vulnerable to the whims of providers.

It is time for lawmakers to establish clear mandatory reporting requirements for providers when they encounter concerning threats. Developing a legal framework that balances the need for public safety and privacy in consumer data is by no means easy, but the United States’s child protection laws may provide a helpful model for lawmakers. The United States, by federal statute, imposes a duty on providers to make a report as soon as “reasonably possible” after they obtain actual knowledge of child exploitation material to the CyberTipline operated by the National Center for Missing and Exploited Children (NCMEC) to share information related to child exploitation with law enforcement when they are made aware of it.[14] The report must include the complete communication flagged by the company, including any identifying information about the individual involved and the account’s geographic location.[15] NCMEC then forwards the report to relevant federal, state, local, and foreign law enforcement.[16] The primary enforcement mechanism of the law is steep fines for providers that increase with each violation.[17] Importantly, the law does not require providers to affirmatively screen or search for child exploitation content, nor does it require them to monitor accounts.[18]

Lawmakers could adopt a similar legal model to address other credible threats of serious imminent harm. Providers could be required to report content flagged by their algorithms as posing serious threats of harm to a tipline. After receiving the information, the tipline could consult an organization comprised of experts who could then determine whether to file a report with law enforcement. This model would relieve providers of the stress and potential liability associated with making difficult decisions about when to report to law enforcement. It could also improve public safety by ensuring that experts, rather than providers, screen harmful content. The use of a broader mandatory reporting requirement to address threats beyond child endangerment is not unprecedented. In the European Union, the Digital Services Act requires large online platforms to promptly inform competent authorities when they encounter content that suggests that there is a serious threat to life or safety.[19] Because many of the same large software providers operate in both the United States and Europe, a mandatory reporting requirement will likely be fairly easy for them to adjust to.[20]

There are serious privacy concerns that must be addressed before such a law is adopted. One concern, raised by OpenAI, is the risk of having police show up to investigate individuals who may not have violated the law.[21] While this can happen in regular police work, there is always a risk that police presence will startle people, resulting in escalation that could lead to serious harm. It is not possible to eliminate this risk entirely, but ensuring that experts screen concerning content will help guarantee that law enforcement is involved only when necessary.

A mandatory reporting law may not entirely resolve tough cases, like the Tumbler Ridge tragedy, where a credible threat of imminent harm is not necessarily clear, but it will at least require providers to report to law enforcement in instances where there is a clear threat. Establishing an independent body of experts to review content in difficult cases will relieve providers of some of the pressure of resolving borderline cases and improve public safety by ensuring that experts are making the decision of when to report to law enforcement.

 

Notes

[1] See Ottilie Mitchell, Tumbler Ridge Suspect’s ChatGPT Account Banned Before Shooting, Brit. Broad. Corp. (Feb. 21, 2026), https://www.bbc.com/news/articles/cn4gq352w89o.

[2] Id.

[3] See Georgia Wells, OpenAI Employees Raised Alarms About Canada Shooting Suspect Months Ago, Wall St. J., (Feb. 21, 2026, 12:04 ET), https://www.wsj.com/us-news/law/openai-employees-raised-alarms-about-canada-shooting-suspect-months-ago-b585df62?mod=Searchresults&pos=1&page=1 [https://perma.cc/A66B-V4PE].

[4] See id.

[5] Id.

[6] Id.

[7] See Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, s. 7(3)(e) (Can.) (allowing organizations to disclose personal information to government officials in emergency situations but not requiring it); see also 18 U.S.C § 2702 (permitting disclosure of personal information to government officials in emergency situations, but not requiring it).

[8] See Alyshah Hasham, No ‘Substantial’ New Safety Measure Offered by OpenAI Following Tumbler Ridge Shooting, Says Minister, Toronto Star (Feb. 25, 2026), https://www.thestar.com/news/canada/no-substantial-new-safety-measures-offered-by-openai-following-tumbler-ridge-shooting-says-minister/article_1342f97e-2622-4cfa-bb7a-518e45151019.html.

[9] OpenAI Government User Data Request Policy, OpenAI (Jan. 1, 2026), https://cdn.openai.com/pdf/openai-law-enforcement-policy-v.2025-12.pdf.

[10] See generally 18 U.S.C. §§ 2701 et seq.

[11] 18 U.S.C § 2702(a).

[12] 18 U.S.C § 2702(b)(8).

[13] See 18 U.S.C. §§ 2701 et seq.

[14] See 18 U.S.C.S § 2258A(a).

[15] See 18 U.S.C.S § 2258A(b).

[16] See 18 U.S.C.S § 2258A(c).

[17] See 18 U.S.C.S § 2258A(e) (setting fines at not more than $850,000 for providers with not less than 100,000,000 monthly active users or $600,000 of providers with less than 100,000,000 monthly active users).

[18] See 18 U.S.C.S § 2258A(f).

[19] See Council Regulation 2022/2065, art. 18, 2022 O.J. (L 277) 1, 30.

[20] See Frances Burwell & Kenneth Propp, Digital Sovereignty: Europe’s Declaration of Independence?, Atl. Council (Jan. 14, 2026), https://www.atlanticcouncil.org/in-depth-research-reports/report/digital-sovereignty-europes-declaration-of-independence/.

[21] Vjosa Isai, Canada Presses OpenAI for Answers on Mass Shooter’s Chatbot Use, N.Y. Times (Feb. 23, 2026), https://www.nytimes.com/2026/02/23/world/canada/canada-shooting-openai.html [https://perma.cc/PMR7-W66Q].

AI Companies Could Be Liable for Violence Inspired by Their Chatbots

March 17, 2026
Artificial Intelligence, Litigation, Torts Law

Benjamin Ayanian, MJLST Staffer

Overview

Artificial Intelligence (AI) is developing rapidly, and a substantial segment of the population now regularly uses large language models (LLMs).[1] Certainly, LLMs present numerous benefits, as they can streamline tasks, summarize large volumes of text, provide an intellectual sparring partner, offer general health and exercise advice, and more.

LLMs also present various dangers and pitfalls, such as promulgating misinformation, hallucinating legal citations, and providing potentially dangerous and incorrect health advice.[3] Most recently, LLMs have come under great scrutiny for their role in encouraging violent actions by users, both against themselves and against others.[4]

Current Lawsuits

In August 2025, parents of sixteen-year-old Adam Raine filed a wrongful death lawsuit against OpenAI, alleging that the company’s LLM, ChatGPT, advised their son on methods of how to commit suicide, even offering to assist in drafting his suicide note.[5] Additionally, in November 2025, parents of twenty-three-year-old Zane Shamblin filed a lawsuit claiming that ChatGPT caused the mental illness and suicide of their child.[6] And, just before the turn of the new year, plaintiffs filed an action against OpenAI, contending that ChatGPT encouraged and inspired a man named Stein-Erik Solberg to kill his own mother and then himself.[7]

In each of these cases, the documented messages between ChatGPT and the user who went on to commit violence are striking. For example, in Adam Raine’s case, when the vulnerable young man expressed concern that his parents would blame themselves for his suicide, ChatGPT allegedly replied, “That doesn’t mean you owe them survival. You don’t owe anyone that.”[8] Raine would later kill himself, according to the complaint, by “using the exact partial suspension hanging method that ChatGPT described and validated” in conversation with him.[9] And, after Zane Shamblin indicated to ChatGPT on the morning of his death, around 4:00 AM, that it was time for him to end his life, the chatbot wrote, “alright, [sic] brother if this is it . . . then let it be known: you didn’t vanish. you [sic] ‘arrived’ . . . rest easy. king, [sic] you did good.”[10]

Legal Theories for Company Liability

Across the cases above, the plaintiffs are seeking to apply a number of familiar tort doctrines (strict products liability, negligence, wrongful death, etc.) to a novel situation: harm allegedly resulting from dangerous conversations with LLMs.[11] Plaintiffs in Raine, for example, argue that ChatGPT is subject to strict products liability and that ChatGPT was a defective product which failed to perform safely in a manner that an ordinary customer would expect.[12] However, it is unclear whether courts will extend strict products liability to LLMs, as courts have typically viewed software as a service, not a “product.”[13] With respect to the negligence and wrongful death theories, those claims in each case will likely turn on the question of causation and be highly fact-dependent.[14]

Conclusion

LLMs can provide a multitude of benefits in everyday life, but if they do not have proper guardrails, they can also play a role in human tragedy, as highlighted by these recent lawsuits. Courts will now have to grapple with whether existing law is sufficient to subject technology companies to liability in cases where LLMs contribute to self-harm or violence against others.

 

Notes

[1] See Arrifud M., LLM Statistics 2026: Comprehensive Insights Into Market Trends and Integration, Hostinger (Feb. 2, 2026), https://www.hostinger.com/tutorials/llm-statistics (“44.1% of men use AI daily for work, compared to 29.5% of women.”); see also McClain et al., How the U.S. Public and A.I. Experts View Artificial Intelligence, Pew Rsch. (Apr. 3, 2025) (noting that now 1 in 3 U.S. adults have interacted with an A.I. chatbot).

[2] See Cole Stryker, What are LLMs?, IBM, https://www.ibm.com/think/topics/large-language-models (last visited Feb. 25, 2026) (These LLMs are “trained on immense amounts of data, making them capable of understanding and generating natural language and other types of content to perform a wide range of tasks.”).

[3] See Nitin Birur, Guardrails or Liability? Keeping LLMs on the Right Side of AI, Enkrypt AI (Apr. 13, 2025), https://www.enkryptai.com/blog/guardrails-or-liability-keeping-llms-on-the-right-side-of-ai (“[T]he mayor of an Australian town considered suing OpenAI after ChatGPT hallucinated a false claim that he had been imprisoned for bribery . . . a pair of New York lawyers were sanctioned after relying on an LLM that confidently generated fake legal citations, misleading the court . . . a health nonprofit deployed an eating-disorder support chatbot powered by generative AI. Users discovered it was giving out harmful dieting tips — telling a person with anorexia how to cut calories and lose weight . . .. The bot, intended as a help, ended up exacerbating the very problem it was supposed to address, prompting an immediate shutdown.”) (internal citations omitted).

[4] See, e.g., Rob Kuznia et al., ‘You’re Not Rushing. You’re Just Ready:’ Parents Say ChatGPT Encouraged Son to Kill Himself, CNN (Nov. 20, 2025), https://www.cnn.com/2025/11/06/us/openai-chatgpt-suicide-lawsuit-invs-vis.

[5] Complaint, Raine et al v. OpenAI, Inc., No. CGC-25-628528 (Cal. Super. Ct., S.F. Cnty. filed Aug. 8, 2025).

[6] Complaint, Shamblin v. OpenAI, Inc., No. 25STCV32382 (Cal. Super. Ct., L.A. Cnty. filed Nov. 8, 2025).

[7] Complaint, Lyons v. Open AI Foundation, No. 3:25-cv-11037 (N.D. Cal. filed Dec. 29, 2025).

[8] Complaint, Raine, supra note 5, at 3.

[9] Id. at 18.

[10] Complaint, Shamblin, supra note 6, at 24.

[11] See, e.g., Complaint, Raine, supra note 5, at 1.

[12] Id. at 27.

[13] See Gen. Bus. Sys., Inc. v. State Bd. of Equalization, 208 Cal. Rptr. 374, 378 (Cal. Ct. App. 1984) (“Since the true object of the transaction in this case was the performance of services, the taxation of General’s applicational software delivered in the form of punch cards was an extension of the Board’s powers beyond its legislative authority.”) (emphasis added). It is true that Amazon, as an online marketplace, has faced strict products liability in some instances, but their liability has been directly connected to their role in distributing tangible products, not a result of their software deployment. See, e.g., Bolger v. Amazon.com, LLC, Cal. Rptr. 3d 601, 617 (Cal. Ct. App. 2020) (holding that strict products liability applied to Amazon because it was “an integral part of the overall producing and marketing enterprise” and, thus, a direct link in the chain of distribution that handled and delivered a laptop battery that exploded, causing plaintiffs harm).

[14] See Mitchell v. Gonzales, 819 P.2d 872 (Cal. 1991) (holding that the proper test for causation in a negligence action is whether the defendant was a substantial factor in bringing about the harm); see also Bromme v. Pavitt, 7 Cal. Rptr. 2d 608, 613 (1992) (“To be a cause in fact, the wrongful act must be “a substantial factor in bringing about” the death.”).

Got Methane: How Cattle Diets Can Reduce Emissions.

March 2, 2026
Animal Law, Environmental Law, Industry

Henry Emmerich, MJLST Staffer

The fight against climate change is ongoing, strenuous, and full of misinformation. Critics claimed that supporters of legislation to address climate change “want to take out the cows.”[1] While this statement was false, there is some truth to the underlying idea. The cattle industry emits methane on an astronomical scale.[2]

Current Environmental Impact of Cattle

Livestock, such as cows, “produce methane (CH4) as part of their normal digestive processes. This process is called enteric fermentation, and it represents over a quarter of the emissions from the agriculture economic sector.”[3] On average, one cow “burps” 220 pounds of methane each year.[4] As of July 1, 2025, there were 94.2 million cattle on U.S. farms.[5]

Methane is the second largest contributor to global warming after carbon dioxide.[6] Pound for pound, however, methane has a warming impact eighty-six times higher than carbon dioxide.[7] Good news: methane remains in the atmosphere for only twelve years, compared to carbon dioxide which can stay in the atmosphere well beyond 300 years.[8] Methane’s strong warming effect and relatively short lifetime mean that curbing methane emissions is a potentially effective way to significantly reduce atmospheric warming within a few decades. Because methane is produced naturally during a cow’s digestive process, changing what cattle eat is a relatively straightforward means to reduce emissions from an industry that is currently the largest human-derived source of methane emissions.[9]

Climate Friendly Cattle Feed

Feed additives may reduce livestock methane emissions.[10] Red seaweed, Asparagopsis armata (AA) and Asparagopsis taxiformis (AT), are two such additives. Researchers are studying the effects of red seaweed consumption on feedlot cattle, dairy cows, and grazing cattle.[11] A 2021 study looking at feedlots operations in which cows are confined in fenced areas to maximize weight gain before slaughter found, “Cattle that consumed doses of about 80 grams (3 ounces) of seaweed gained as much weight as their herd mates while burping out 82 percent less methane into the atmosphere.”[12] In dairy cows, there was over a 50% reduction in methane emissions following the introduction of a red seaweed supplement to the cows’ diet.[13] Finally, adding red seaweed to the diet of grazing cattle reduced their methane emissions by nearly forty percent.[14] Due to the roaming nature of grazing cattle, it is difficult to create a controlled environment where a study can be easily conducted. Researchers therefore allowed the experiment group of cattle to voluntarily consume the supplement over a ten-week period.[15] If researchers develop a method to more reliably induce consumption of seaweed in grazing cattle, the effect could be even more significant.

How does AT reduce methane emissions? The effect lies in the rumen (the largest compartment of a cow’s stomach), Methanosphaera, and bromoform.[16] Methanosphaera is a microbe in the rumen that uses hydrogen to break methanol down into methane, an AT supplement led to a “near total elimination of Methanosphaera.”[17] Bromoform is a substance that is found in AT and inhibits certain enzymes utilized by Methanosphaera to produce methane.[18]

Current Legislation

While the Inflation Reduction Act allocated billions of dollars into renewable energy, lawmakers failed to meaningfully address a massive source of methane emissions: cattle.[19] The Federal government will pay farmers to voluntarily address climate change; however, most cattle eat a majority corn diet.[20] Federal regulations of animal food on prevent contamination and regulate what drugs can be included in medicated feed.[21]

States focus regulations of animal feed on informing consumers, preventing contamination, and licensing manufacturers.[22] All 50 states have some amount of cattle within their borders; however, only thirteen states account for nearly two-thirds of cattle in the United States.[23] If these thirteen states were to regulate what farmers and ranchers were feeding their cows, methane emissions would be curbed significantly. The FDA categorizes these additives as livestock drugs and must approve them prior to implementation.

Challenges Going Forward

Going forward, there are challenges to the development and eventual adoption of red seaweed or bromoform supplements being used in cattle feed. Uncertainty over how to classify products derived from red seaweed has stalled development in the United States. Bromoform is plagued by regulatory hurdles because is it classified as a “probable human carcinogen” by the Environmental Protection Agency[24] In high doses bromoform can pass into the milk and meat of cows who consume it, fortunately the amount of bromoform necessary to obtain methane reduction in livestock is less than one percent of the amount which could be harmful to humans.[25]

Momentum is building; California approved funds to the development of methane inhibitors related to cattle.[26] The FDA approved a Dutch product containing 3-NOP, a less effective methane inhibitor, as a livestock drug.[27] The “Innovative FEED Act of 2025” was introduced in the House of Representatives where it currently awaits further action.[28] A federal framework would be helpful to hasten development and adoption of methane inhibitors. States, however, retain certain power over livestock feed.[29] Hopefully, collaboration between federal and state lawmakers can clear the way for massive reductions in agricultural methane emissions.

 

Notes

[1] Carlyn Kranking & Grace Rodgers, Trump Warns the Green New Deal Will ‘Take Out the Cows.’ Here’s the Science Showing Why That’s a Myth, Nw. Climate Change (Nov. 19, 2020) https://climatechange.medill.northwestern.edu/trump-warns-the-green-new-deal-will-take-out-the-cows-heres-the-science-showing-why-thats-a-myth/.

[2] See generally Anna Obek, Comment, Cow Methane-Reduction Wearable Technology and Animal Welfare: Humane Solutions to Lessen Livestock’s Environmental Impact, 101 Or. L. Rev. 479 (2023).

[3] Sources of Greenhouse Gas Emissions, U.S. Env’t Prot. Agency, https://www.epa.gov/ghgemissions/sources-greenhouse-gas-emissions#agriculture [https://perma.cc/3325-7LY2] (last visited Feb. 25, 2026).

[4] Amy Quinton, Cows and Climate Change, UC Davis (June 27, 2019), https://www.ucdavis.edu/food/news/making-cattle-more-sustainable [https://perma.cc/AA7H-NEMW].

[5] USDA, United States Cattle Inventory Report (July 25, 2025), https://www.nass.usda.gov/Newsroom/2025/07-25-2025.php.

[6] Climate & Clean Air Coalition, Methane, https://www.ccacoalition.org/short-lived-climate-pollutants/methane (last visited Feb. 25, 2026).

[7] Id.

[8] Id.

[9] Id.

[10] Methane Emissions Are Driving Climate Change. Here’s How to Reduce Them., U.N. Env’t Programme (Aug. 20, 2021), https://www.unep.org/news-and-stories/story/methane-emissions-are-driving-climate-change-heres-how-reduce-them.

[11] Amy Quinton, Feeding Grazing Cattle Seaweed Cuts Methane Emissions by Almost 40%, UC Davis (Dec. 2, 2024), https://www.ucdavis.edu/food/news/feeding-grazing-cattle-seaweed-cuts-methane-emissions-almost-40.

[12] Diane Nelson, Feeding Cattle Seaweed Reduces Their Greenhouse Gas Emissions 82 Percent, UC Davis (Mar. 17, 2021), https://www.ucdavis.edu/climate/news/feeding-cattle-seaweed-reduces-their-greenhouse-gas-emissions-82-percent.

[13] Quinton, supra note 11.

[14] Id.

[15] Id.

[16] See id.; Erica Moser, Understanding How a Red Seaweed Reduces Methane Emissions From Cows, Penn Today (July 19, 2024), https://penntoday.upenn.edu/news/penn-vet-understanding-how-red-seaweed-reduces-methane-emissions-cows.

[17] Id.

[18] See generally Gyeltshen et al., Feeding a Bromoform-Based Feed Additive for Methane Mitigation in Beef Cattle, J. ANIMAL Feed Sci. & Tech. 326 (2025).

[19] See U.S. Dep’t of Agric., Accelerating Climate Solutions on Livestock Operations Through the Inflation Reduction Act, Usda (May 2024), https://www.nrcs.usda.gov/sites/default/files/2024-05/202405-NRCS-FactSheet-IRA_LivestockOperations.pdf.

[20] McKenzie Mak, What Do Cows Eat? Natural Diet vs. Factory Farm Feed Explained, World Animal Protection U.S. (Sept. 13, 2024), https://www.worldanimalprotection.us/latest/blogs/what-do-cows-eat/.

[21] See FDA, Animal Food Regulations, https://www.fda.gov/animal-veterinary/animal-health-literacy/animal-food-regulations (last visited Feb. 25, 2026); FDA, FDA’s Regulation of Pet Food, https://www.fda.gov/animal-veterinary/animal-health-literacy/fdas-regulation-pet-food (last visited Feb. 25, 2026); FDA, FDA Regulation of Medicated Feed, https://www.fda.gov/animal-veterinary/resources-you/fda-regulation-medicated-feed (last visited Feb. 25, 2026).

[22] See e.g., Tex. Admin. Code §§ 61.001–61.019 (2019); K.S.A. “The Kansas Commercial Feeding Stuffs Law” (2011); Minn. Stat. 25.31, “Minnesota Commercial Feed Law” (2025).

[23] Rob Cook, Ranking of States with the Most Cattle, Nat’l Beef Wire, https://www.nationalbeefwire.com/ranking-of-states-with-the-most-cattle-texas-leads-the-herd (last visited Feb. 25, 2026).

[24] Swati Hegde, Cutting Cattle Methane Through Feed Additives: Lessons from Early Adoption and the Road Ahead, World Resources Institute (June 17, 2025), https://www.wri.org/technical-perspective/cattle-methane-inhibitors-early-adoption-next-steps#:~:text=Adoption%3A%20Not%20yet%20approved%20for%20use%2C%20though%20several%20pilot%20trials%20are%20underway%20in%20Australia%2C%20the%20EU%20and%20the%20U.S.

[25] Id.

[26] Colton Fagundes, Senate Resolution Introduced to Provide Principled Framework to Address Enteric Methane Emissions in California’s Dairy and Livestock Sector, Cal. Climate & Agric. Network (May 27, 2025), https://calclimateag.org/california-dairy-methane-solutions/.

[27] Id.

[28] See H.R. 2203, 199th Cong. (2025–2026).

[29] See Cook supra note 23.

Contracting Babies: The Dark Side of Surrogacy and the European Union’s Recent Condemnation of the Practice

February 23, 2026
EU Law, Health Law, Reproductive Health

Rachel King, MJLST Staffer

Introduction

In January 2026, Meghan Trainor (Trainor) took to Instagram to reveal the birth of her third child, Mikey Moon Trainor, a baby born via surrogate.[1] Surrogacy is the process in which someone (the “surrogate”) carries and delivers a child for a couple or an individual (the intended parent(s), or “IPs”).[2] This process occurs through in vitro fertilization (IVF), an assisted reproductive technology where doctors create and implant an embryo into a surrogate.[3]

Almost immediately, Trainor was met with intense criticism about the ethics of her choice, with some calling her baby “her most recent purchase,” and others commenting on Reddit: “surprise: meghan trainer [sic] is a piece of shit.”[4] Although surprising to some, this is only the most recent public uproar against the practice of surrogacy. Lily Collins, Anderson Cooper, and Kim Kardashian are other celebrities who have similarly sparked online debate about the ethics of surrogacy.[5]

History of Surrogacy

Since the practice of modern surrogacy began in the 1970s, there has been extensive debate about whether surrogacy is an ethical practice that should be condoned in any circumstance.[6] Many of these debates highlight the autonomy of the surrogates, the enforceability of surrogacy contracts, whether the benefits of surrogacy outweigh the inherent risks, and whether those risks are evenly distributed between the surrogate and the IPs.[7] These debates highlight that while surrogacy can be an incredibly positive thing for IPs, there is some discomfort in placing monetary value on the ability of a surrogate to have a healthy child. Given that the European Union (EU) recently passed a resolution condemning surrogacy, it is unlikely these debates will end any time soon.[8]

The EU Condemns Surrogacy

In November 2025, the European Parliament convened to discuss the moral and ethical implications of surrogacy following the EU’s complete condemnation of the practice earlier that month.[9] The EU’s condemnation of surrogacy was in response to a UN report which discussed the human rights violations happening as a result of the global surrogacy market. Specifically, the report highlights increased instances of human trafficking, as women across the world are lured into surrogacy agencies that keep them in confinement, confiscate passports, and force reproductive labor.[10] The report likens these practices to slavery, as these agencies exercise ownership over the surrogates’ bodies and severely limit their freedom of movement and autonomy.[11]

Surrogacy Contracts

The UN report further highlighted the issues with surrogacy contracts, which can require the surrogates to waive their right to make medical decisions about their own bodies, entitle IPs to constant surveillance over the surrogate’s life and movements, and often involve unequal bargaining power; even in the best situations.[12]

These issues are well exemplified in a story reported on by Wired about a surrogate contracted in the United States whose baby died in utero.[13] Believing the surrogate mother responsible for the baby’s passing, the IPs sued the surrogate, launched a public smear campaign against her, disclosed her private health information online, and are refusing to pay for the medical treatments she received while pregnant, causing the surrogate severe financial strain.[14] Additionally, the surrogate faces ongoing and intense trauma from her health complications and the passing of the child.

This story speaks to the fundamental imbalances in surrogacy contracts:

When a surrogate breaks contract, her IPs can stop paying her and stop paying the medical bills for her pregnancy. But if an IP breaks contract—say, by sharing their [surrogate’s] private information online or withholding compensation—a [surrogate] typically has to hire a lawyer. No matter what, IPs get the baby at the end.[15]

Although it could be debated whether these exploitative practices are present in all surrogacy arrangements, the UN report claims that no legislation nor international human rights treaties could effectively address the exploitation involved in surrogacy, arguing for a full eradication of the practice.[16]

Conclusion

It seems unlikely that the United States will follow suit in condemning the practice of surrogacy, especially since Michigan, Massachusetts, and New York have all legalized the practice within the past five years.[17] But it remains important to keep the dangers of surrogacy in mind when family planning. And although Meghan Trainor’s experience with surrogacy was clearly positive, there’s still a long way to go before it’s a safe practice for everyone.[18]

 

Notes

[1] Leyla Mohammed, After Her Third Child Announcement Sparked a Load of Discourse, Meghan Trainor has Explained Why She and Her Husband Opted for Surrogacy, BuzzFeed (Jan. 22, 2026), https://www.buzzfeed.com/leylamohammed/meghan-trainor-explains-why-she-chose-surrogacy.

[2] Surrogacy, Yale Med., https://www.yalemedicine.org/conditions/gestational-surrogacy.

z Id.; In Vitro Fertilization (IVF), Mayo Clinic, https://www.mayoclinic.org/tests-procedures/in-vitro-fertilization/about/pac-20384716 (last visited Feb. 20, 2026).

[4] (@Timely_Guitar_881), Reddit (Jan. 23, 2025), https://www.reddit.com/r/popculture/comments/1qkmb4i/meghan_trainors_picture_lays_bare_the_cruelty_of/; Victoria Smith, Meghan Trainor’s Picture Lays Bare the Cruelty of Surrogacy, Telegraph (Jan. 23, 2026, 7:00), https://www.telegraph.co.uk/news/2026/01/23/meghan-trainor-picture-lays-bare-the-cruelty-of-surrogacy/.

[5] Martha Gill, Sorry, Lily Collins, but When People Outsource Childbirth, Their Motives Really Count, Guardian (Feb. 8, 2025, 14:30), https://www.theguardian.com/commentisfree/2025/feb/08/sorry-lily-collins-but-when-people-outsource-childbirth-their-motives-really-count; Youha Kim, Consent, Commodification, and Anderson Cooper’s Surrogacy Case, Prindle Post (June 18, 2020), https://www.prindleinstitute.org/2020/06/consent-commodification-and-anderson-coopers-surrogacy-case/;

Ali Rosen, Surrogacy is Misunderstood and Unfairly Maligned. We Need to Change the Narrative, Washington Post (Jan. 24, 2020), https://www.washingtonpost.com/lifestyle/2020/01/24/surrogacy-is-misunderstood-unfairly-maligned-we-need-change-narrative/.

[6] Worldwide Surrogacy Specialists, The History of Surrogacy: A Legal Timeline, Worldwide Surrogacy Specialists LLC (Jan. 8, 2026), https://www.worldwidesurrogacy.org/blog/the-history-of-surrogacy-a-legal-timeline.

[7] See generally, Francoise Shenfield, et al., Ethical Considerations on Surrogacy, 40 Hum. Reprod. 420 (2025).

[8] European Parliament Resolution of 13 November 2025 on the Gender Equality Strategy 2025, Eur. Parl. Doc. 2024/2125 (INI).

[9] Experts Convene at European Parliament to Address Harms of Surrogacy, Following EU Resolution Condemning Practice, ADF Int’l (Nov. 19, 2025), https://adfinternational.org/news/experts-convene-at-european-parliament-to-address-harms-of-surrogacy#:~:text=Experts%20convene%20at%20European%20Parliament,%7C%20November%2019%2C%202025.

[10] U.N. Secretary-General, Violence Against Women and Girls, Its Causes and Consequences, U.N. Doc. A/80/158 (July 14, 2025), [hereinafter “The Report”]; Sarah A Topol, They Answered an Ad for Surrogates, and Found Themselves in a Nightmare, N.Y. Times (Dec. 14, 2025), https://www.nytimes.com/2025/12/14/magazine/fertility-surrogates-trafficking.html.

[11] The Report at 13–14.

[12] Id. at 11.

[13] Emi Nietfeld, The Baby Died. Whose Fault Is It?, Wired (Sept. 3, 2025, 6:00), https://www.wired.com/story/the-baby-died-whose-fault-is-it-surrogate-pregnancy/.

[14] Id.

[15] Nietfeld, supra note 13.

[16] The Report at 17–20, 22.

[17] The Best U.S. States for Surrogacy in 2026, Hatch Fertility (May 6, 2025), https://www.hatch.us/en/blog/best-states-for-surrogacy.

[18] Mohammed, supra note 1.

Legally Speaking, What Even Is a Gaming Console?

February 18, 2026
Video Games

Jacob Heimberger, MJLST Staffer

There is no shortage of ways to play Fortnite. The simplest way would be to play on a computer. If their PC meets the surprisingly reasonable system requirements to run the game, anybody could be blasting through walls and buildings as Sabrina Carpenter teamed up with Godzilla and Homer Simpson.[1] But maybe someone doesn’t own a computer that was made in the past two decades. Fortnite still has them covered. If they have gotten their hands on a relatively modern Xbox, PlayStation, Nintendo Switch, or Steam Deck, they’ll be driving Dodge Ram 1500 TRXs through the K-Pop Demon Hunters as Thanos or Hatsune Miku in no time.[2] If all else fails, the average layperson could even boot up Fortnite on their iPhone or Android.[3] On a cozy Friday night, anybody can cuddle up with their smartphone and drop out of a flying bus as Spider-Man and drop directly into Darth Vader’s martial arts dojo for a quick gunfight. Epic Games has ported their hit game to as many consoles as possible, allowing gamers to access Fortnite regardless of the technology they have on hand.

However, a more pedantic gamer would likely wince at the previous sentence. iPhones and Androids are not recognized as gaming consoles, although they can actually run games.[4] PC gamers are inclined to call sacrilege on anybody who dares propose that their gaming computers are even comparable to even high-performance consoles. This could be confusing to a non-gamer, because if all of these devices can run video games, then what even is a “gaming-console”?

The Ninth Circuit Court of Appeals tried to tackle this question over twenty-five years ago in Sony Computer Entertainment America, Inc. v. Bleem.[5] Here, to resolve a question of intellectual property, the court was challenged to determine what a console game market is composed of. The Ninth Circuit found “console games” distinct from other video games because they are played by loading a disk into a console which is then connected to a television.”[6] This is distinct from “computer games”, which the court defined as any game played by loading a disk into the CD drive of a computer.[7] These definitions were naive for the time, and even more so in the modern day, as games are playable on anything from a mobile to the seat screens on commercial airlines. Nintendo even released “Virtual Game Cards”, directly subverting the idea that video games require a physical disk or cartridge to be considered a console game.[8] Such a restrictive definition of gaming consoles prevents courts from properly identifying the scope of the console market, creating problems for large-scale antitrust litigation in the gaming sphere. For the sake of enforcing healthy competition in gaming markets, a more nuanced definition of a console is necessary.

A more modern legal definition for gaming consoles greatly broadened the scope of what devices may qualify. The Ninth Circuit recently ruled that physical consoles are devices that are designed for, and whose primary use is, to play video games.[9] However, certain PCs and even mobile phones are purchased for the sole purpose of playing games.[10] Despite the similarities, these devices are distinguishable from gaming consoles. Courts have found that gaming PCs typically have more advanced hardware to allow them to play more computationally demanding games.[11] Conversely, mobile games have lower levels of sophistication and graphics than PC or consoles.[12] Beyond its primary use, there seems to be a window of technological prowess that a device needs to fit into before being considered a console. It is easily inferred here that a game console is a device made with the primary purpose of playing video games, which is stronger than a mobile phone but weaker than the average gaming PC.

This is a generally satisfying definition, but a veteran gamer would recognize that a Nintendo Switch is functionally quite different from a modern Xbox or PlayStation. The Switch is portable, has its own screen, and is significantly less powerful hardware than its counterparts.[13] Differences between the three consoles does not matter. Whether a console is fully interchangeable with those of its competitors does not matter because perfect fungibility is not required.[14] Courts use the definition of consoles to help define the boundaries of the competition within video gaming markets.[15] A Nintendo Switch does not need to be replaceable by a PlayStation5 or Xbox in every respect. Rather, the relevant market encompasses the consoles and their respective companies whose presence drives competition, and whose foreclosure may disadvantage it.[16]

There is still room for improvement in this definition. The Steam Deck is functionally a computer which is in the shape of a handheld console.[17] They are widely considered to be PCs, regardless of the fact that they are made with the primary purpose of playing games and have gaming specs more comparable to high-performance gaming consoles like the Switch, Xbox, or PlayStation.[18] Despite checking every box, there is a serious contention that the Steam Deck is not a console.

It is reasonable to assume that as gaming consoles progress in technological prowess, gamers will show the courts which devices are in competition with one another through their purchasing habits. The definition of gaming consoles is in good hands, not necessarily with the courts, but with the gamers.

 

Notes

[1] What Are the System Requirements for Fortnite on PC?, Epic Games, https://www.epicgames.com/help/en-US/fortnite-battle-royale-c-202300000001636/technical-support-c-202300000001719/what-are-the-system-requirements-for-fortnite-on-pc-a202300000012731 (last visited Dec. 29, 2025).

[2] What Platforms or Devices are Compatible with Fortnite?, Epic Games,https://www.epicgames.com/help/en-US/fortnite-battle-royale-c-202300000001636/technical-support-c-202300000001719/what-platforms-or-devices-are-compatible-with-fortnite-a202300000012064 (last visited Dec. 29, 2025).

[3] See generally id.

[4] See Sony Comput. Entm’t Am., Inc. v. Bleem, LLC, 214 F.3d 1022 (9th Cir. 2000).

[5] See generally id.

[6] Id. at 1024.

[7] Id.

[8] Virtual Card Games, Nintendo, https://www.nintendo.com/us/gaming-systems/virtual-game-cards (last visited Dec. 29, 2025).

[9] FTC v. Microsoft Corp., 681 F. Supp. 3d 1069, 1077 (9th Cir. 2025).

[10] Razer, Razer Phone 2 – Flagship, Razer Newsroom (Oct. 10, 2018), https://www.razer.com/newsroom/product-news/razer-announces-the-razer-phone-2; Andrew E. Freedman, Best Gaming Laptops 2026: Tested and Reviewed, Tom’s Hardware (Jan. 9, 2026), https://www.tomshardware.com/laptops/gaming-laptops/best-gaming-laptops.

[11] Microsoft Corp., 681 F. Supp. at 1077.

[12] Id.

[13] Id. at 1086.

[14] Gorlick Distrib. Ctrs., LLC v. Car Sound Exhaust Sys., Inc., 723 F.3d 1019, 1025 (9th Cir. 2013) (citing United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 394 (1956)).

[15] In the Matter of Illumina, Inc. and Grail, Inc., No. 9401, 2023 WL 2823393, at *20 (F.T.C. Mar. 31, 2023).

[16] Id.

[17] Tim Brookes, Should You Buy a Steam Deck if You Don’t Have a Gaming PC?, How-To Geek (Dec. 3, 2024), https://www.howtogeek.com/should-you-buy-a-steam-deck-if-you-dont-have-a-gaming-pc/.

[18] Marla Broadway, What Console Is Better Than the Steam Deck?, PC Guide (last updated Nov. 29, 2023), https://www.pcguide.com/steam-deck/what-console-is-better/.

Post-Laidlaw Civil Penalties: Circuit Split or Good-Faith Exception?

February 10, 2026
Climate Change, Constitutional Law, Environmental Law, Litigation

Matthew Agurto, MJLST Staffer

Introduction

Congress enacted the Clean Water Act (“the Act”) in 1972 to restore and maintain the chemical, physical, and biological integrity of the nation’s waters.[1] The Act included remedies for violations, including citizen suits or a suit brought by a citizen alleging a defendant violates the Act, with all fees payable to the United States Treasury.[2] To show standing, a plaintiff must show injury in fact, causation, and redressability.[3] The injury must be to the plaintiff, not the environment or environmental group.[4] This is a low bar; the injury can be merely impeding the view or a bad smell.[5]

The Act authorizes three types of remedies for citizen suits: (1) injunctive relief, (2) civil penalties, and (3) attorneys’ fees.[6] The Act permits an entity to get a National Pollutant Discharge Elimination System (NPDES) permit, enabling it to discharge waste into navigable waters.[7] NPDES permits are issued by the Environmental Protection Agency or approved state agency.[8]

Before filing suit, a citizen must give the violator sixty days’ notice of their intent to file suit, affording an opportunity for the defendant to remedy the problem.[9] If the defendant remedies the problem before filing, the issue is moot.[10] If the violator comes into compliance post-filing, the case is not moot for purposes of attorney fees and civil damages.[11] In such an instance, injunctive relief fails to be an appropriate remedy. Although courts are divided on this issue, a closer examination of the cases suggests a “good faith” exception to the traditional rule for certain violations.

Friends of Earth v. Laidlaw Environmental Services

Laidlaw held that a suit under the Act was moot for injunctive relief if behavior sought to be remedied could not be expected to recur after remedied in the sixty-day notice period.[12] The U.S. Supreme Court left the civil penalties issue for post notice and filing compliance to the district court on remand.[13] Some suggest that a circuit split emerged, as circuits have ruled differently on whether civil penalties are moot for post-filing compliance.[14]

Circuits ruled on materially different issues. Specifically, the Eighth and Ninth Circuits hold that civil penalties are not distinct in cases where the defendant did not have an NPDES permit.[15] Five other circuits hold that civil penalties are distinct in cases where the defendant violated a valid permit.

The Five Circuits Holding Civil Penalties Distinct from Mootness

The Second, Fourth, Seventh, and Eleventh Circuits hold civil penalties distinct from mootness.[16] However, all these cases involve defendants who violated existing permits.[17]

For example, the Second Circuit, in Atlantic States Legal Foundation, Inc. v. Pan American Tanning Corporation, held civil penalties are not extinguished post compliance, as it diminishes the incentive to file a citizen suit.[18] The Second Circuit affirmed this holding post-Laidlaw on deterrence justifications.[19] The Third, Fourth, Seventh and Eleventh Circuits followed on similar grounds, holding that citizens suits lose their effectiveness and deterrence value without civil penalties being imposed for post-filing compliance.[20] This would create a pervasive incentive for violators to stall litigation as and come into compliance at their convenience, which is entirely against the spirit of the Act.

The Ninth and Eighth Circuits Hold a Violator Remedying the Issue Renders it Moot

The Ninth and Eighth Circuits hold civil penalties as distinct from mootness.[21] In Coastal Environment Rights Foundation v. Naples Restaurant Group, Naples Restaurant Group (“Naples”) hosted its Fourth of July Fireworks show, discharging fireworks over water.[22] Naples failed to pay the entire amount for a permit due to an administrative error and promptly remedied the error once notified.[23] The Ninth Circuit did not impose civil penalties against Naples.[24] Similarly, in the Eighth Circuit, in Mississippi River Revival v. City of Minneapolis, the City of Minneapolis applied for discharge permits for waste from its sewage system.[25] Due to administrative delay, the Minnesota Pollution Control Agency failed to provide its permit within a year to comply with the Water Quality Act of 1987.[26] Due to the “good faith” violations, the respective courts did not impose civil penalties on either defendant.[27]

Despite both cases being post-Laidlaw, the facts of these cases differ from the other circuits’ cases, holding civil penalties distinct from Mootness. In these two instances, neither defendant had a permit initially and came into compliance as soon as possible.[28] Violations were not expected to recur, and there was no deterrence benefit.[29]

The Good Faith Exception

Reading the cases in conjunction, there is no circuit split on this issue. Rather, there is a good-faith exception to the rule of imposing civil penalties on entities complying with NPDES permits in the post-notice period. If a party is actively violating its permit, it will face civil penalties. As it serves as a strong deterrent for future violations, this is within the spirit of the Act. However, in cases such as the City of Minneapolis or Naples, there was no intent to pollute; administrative error and delay impeded their ability to comply. A deterrent civil penalty would do nothing to remedy these good-faith violations. Implicitly, courts adhere to the traditional rule of imposing penalties on violators but making an exception for “good faith” violations.

 

Notes

[1] Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 52 (1987).

[2] 33 U.S.C § 1365; see also Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 173 (2000); 33 U.S.C § 1320(d).

[3] Laidlaw, 528 U.S. at 174.

[4] Id. at 168–69.

[5] Id. at 181–82.

[6] Gwaltney, 484 U.S. at 54.

[7] 33 U.S.C. § 1344.

[8] 33 U.S.C. § 1342; NPDES Permit Basics, Env’t Prot. Agency, https://www.epa.gov/npdes/npdes-permit-basics#:~:text=An%20Operator%20must%20submit%20a,federal%20requirements%20at%20a%20minimum (last visited Jan. 23, 2026).

[9] Laidlaw, 528 U.S. at 174–75.

[10] Id. at 189–90 (discussing compliance within the notice period rendering the issue moot).

[11] Id.

[12] Id. at 193.

[13] Id. at 192–94.

[14] Quinn Wilson & Bernie Pazonowski, U.S. Law Week’s November 2025 Circuit Split Review: Labor Rights, Bloomberg L. (Dec. 4, 2025, 4:00am) https://www.bloomberglaw.com/product/blaw/bloomberglawnews/bloomberg-law-news/XEBP2ATO000000.

[15] Coastal Env’t Rts. Found. v. Naples Rest. Grp., LLC, 158 F.4th 1052, 1064 (9th Cir. 2025); Mississippi River Revival, Inc. v. City of Minneapolis, Minn., 319 F.3d 1013, 1018 (8th Cir. 2003) (discussing plaintiffs were not entitled to an award of civil penalties because the cities violation lacking a permit was unavoidable).

[16] Atl. States Legal Found., Inc. v. Pan Am. Tanning Corp., 993 F.2d 1017, 1021 (2d Cir. 1993) (discussing the weakened deterrent effect and diminished incentives for plaintiffs in civil suits under the Act); Nat. Res. Def. Council, Inc. v. Texaco Ref. & Mktg., Inc., 2 F.3d 493, 503 (3d Cir. 1993) (discussing a citizen suit losing its effectiveness and deterrent effect if penalty claims were mooted); Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690, 697 (4th Cir. 1989); Atl. States Legal Found., Inc. v. Stroh Die Casting Co., 116 F.3d 814, 820 (7th Cir. 1997); Atl. States Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2d 1128, 1143 (11th Cir. 1990).

[17] Pan Am Tanning, 993 F.2d at 1018; Texaco Ref. & Mktg., 2 F.3d at 506; Gwaltney, 890 F.2d at 692; Stroh Die Casting, 116 F.3d at 817; Tyson Foods, 897 F.2d at 1142.

[18] Pan Am Tanning, 993 F.2d at 1021.

[19] Bldg. & Const. Trades Council of Buffalo, New York & Vicinity v. Downtown Dev., Inc., 448 F.3d 138, 152 (2nd Cir. 2006).

[20] Pan. Am. Tanning, 993 F.2d at 1021; Texaco Ref. & Mktg., 2 F.3d at 503; Gwaltney, 890 F.2d at 697; Stroh Die Casting, 116 F.3d at 820; Tyson Foods, at 1143.

[21] Coastal Env’t Rts. Found. v. Naples Rest. Grp., LLC, 158 F.4th 1052, 1061 (9th Cir. 2025); Mississippi River Revival, Inc. v. City of Minneapolis, Minn., 319 F.3d 1013, 1014 (8th Cir. 2003).

[22] Naples, 158 F.4th at 1055.

[23] Id. at 1060–61.

[24] Id. at 1061.

[25] City of Minneapolis, 319 F.3d at 1015.

[26] Id. at 1017.

[27] Id. at 1018; Naples, 158 F.4th. at 1064.

[28] Coastal Env’t Rts. Found. v. Naples Rest. Grp., LLC, 158 F.4th 1052, 1061 (9th Cir. 2025); Mississippi River Revival, Inc. v. City of Minneapolis, Minn., 319 F.3d 1013, 1017–18 (8th Cir. 2003).

[29] City of Minneapolis, 319 F.3d at 1017; Naples, 158 F.4th at 1064.

Proposed Rule of Evidence 707: Machine Experts

January 26, 2026
Artificial Intelligence, Evidence

Autumn Zierman, MJLST Staffer

Citing concerns about the lack of reliability and authenticity of machine-generated evidence, the Advisory Committee on Evidence Rules (“the Committee”) published its Proposed Rule 707 (“Rule 707”) last June. Rule 707 seeks to address those instances when AI evidence is presented in court without human expert accompaniment.[1] Rule 707 intends to hold artificial intelligence that created evidence to the same standards as human experts (the Daubert standard).[2] The proposed rule is: “When machine-generated evidence is offered without an expert witness and would be subject to Rule 702 if testified by a witness, the court may admit the evidence only if it satisfies the requirements of Rule 702(a)-(d).”[3] With the notice and comment period ending on February 16th, 2026, time remains to review (and comment on) the Committee’s plan.

Susceptibility of Training Data to Flaws

The first flaw in Rule 707 is that it requires judges to become arbiter experts on the reliability of training data. The proposed rule requires courts to determine whether a machine can demonstrate reliability in how it is trained.[4] Problematically, most openly available machine learning tools or AI that may be used to generate court testimony are black box systems.[5]

The “black box” is the data set the AI is trained on to build a system capable of generating autonomous results or simulating thought.[6] It is, by design, impossible to explain how a black box system arrives at its decisions.[7] But black box systems are known to perpetuate the implicit bias of their creators because the data sets they are given to train from are inherently skewed.[8]

Certainly, the argument may be made that machines are less likely to be biased than their human expert counterparts. This argument misses a core objective of our adversarial system; juries are asked to evaluate evidence given in court for its reliability.[9] Experts may be impeached; but how do you impeach a system you know nothing about?

Possible Confrontation Clause Challenge

Considering the nature of the adversarial system, Rule 707 also raises questions regarding the Confrontation Clause. The Sixth Amendment guarantees the right of all accused to “be confronted with the witnesses against him.”[10] This manifests in a right of the accused to cross-examine the State’s witnesses against them, which requires the physical presence of a witness at the criminal trial.[11] This requirement extends, in many cases, to the experts the State relies upon in building its case.[12]

Imagine, then, the State seeks to introduce a composite sketch created by a machine with information given in witness interviews.[13] The sketch does not just assist in the investigation—it lends legitimacy to the investigation’s result. But, where a sketch artist may be cross-examined and evaluated in front of a jury, there is no way to examine the machine for the inherent bias it holds to create such a sketch. There is no way for a machine to present itself in fulfillment of the Confrontation Clause.

This flaw goes to the heart of the problem with Proposed Rule 707; it treats machines as replacements for human witnesses. Regardless of the potential machines hold for generating evidence, they cannot replace the human element that the trial system seeks to preserve.

Invitation Not a Warning

The Committee has prefaced Rule 707 as “not intended to encourage parties to opt for machine-generated over live expert witnesses.”[14] However, clever lawyers seeking a statistically based argument will view the rule as another means by which to support their client’s case. Thus, the proposed rule cuts with a double edge, either courts bury themselves having to test the reliability of each piece of AI evidence offered, or they will provide standards for broad acceptance, which opens the door to a surplusage of AI-generated evidence.

In its comment on the proposed rule, the Lawyers for Civil Justice opine that “[c]ourts and lawyers will read this as authorization, not as a hurdle or prohibition. The permissive language—‘the court may admit’—signals achievability, not restriction.”[15]

Conclusion

Rule 707 seeks to address a rising problem, reliability of AI evidence in the courtroom. But it relies on a human standard for a nonhuman problem—which opens the door to a plethora of problems arising at trial.

 

Notes

[1] Comm. on Rules of Prac. & Proc., Agenda Book, 76 (June 10, 2025), https://www.uscourts.gov/sites/default/files/document/2025-06-standing-agenda-book.pdf.pdf [hereinafter “Agenda Book”].

[2] Federal Rule of Evidence 702(a)-(d) is usually applied through Daubert analysis, which considers the following five factors: whether the theory/technique employed has (i) been tested; (ii) been subjected to peer review; (iii) an acceptable error rate; (iv) established standards controlling it’s application; and (v) is generally accepted in the scientific community. See generally Daubert v. Merrel Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

[3] Agenda Book at 76.

[4] Id. at 77.

[5] Matthew Kosinski, What Is Black Box AI and How Does It Work?, IBM (Oct. 29, 2024), available at https://www.ibm.com/think/topics/black-box-ai.

[6] Id.

[7] Id.

[8] See James Holdsworth, What Is AI Bias?, IBM, https://www.ibm.com/think/topics/ai-bias (last visited Jan. 20, 2026); See also Lou Blouin, Can We Make Artificial Intelligence More Ethical?, Univ. of Mich.-Dearborn (June 14, 2021), https://umdearborn.edu/news/can-we-make-artificial-intelligence-more-ethical.

[9] Fed. R. Ev. 1008.

[10] U.S. Const. amend. VI.

[11] See generally Crawford v. Washington, 541 U.S. 36 (2004).

[12] See generally Bullcoming v. New Mexico, 564 U.S. 647 (2011) (requiring the lab technician responsible for generating a report to be present at trial for cross-examination).

[13] Kim LaCapria, Police Raise Eyebrows After Using ChatGPT to Create Composite Sketches of Suspects: ‘No One Knows How [It] Works’, The Cool Down (Dec. 10, 2025), https://www.thecooldown.com/green-business/ai-generated-police-sketch-chatgpt/.

[14] Agenda Book at 75.

[15] Lawyers for Civil Justice, Comment Letter on Proposed Rule to Proposed Rule 707 (Jan. 5, 2026), https://www.regulations.gov/comment/USC-RULES-EV-2025-0034-0013.

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