Saving preemption in the Clean Air Act: climate change, state common law, and plaintiffs without a remedy.

• Author: England, J.J.

1. INTRODUCTION II. EXPLORING THE MAXIMUM REACH OF THE CLEAN AIR ACT A. Structure of the Clean Air Act: Regulatory Programs and Cooperative Federalism 1. Ambient Air Quality: Standards, Implementation of Standards, and Preventing Deterioration of Ambient Air Quality 2. Technology-Based Emission Standards for New Stationary Sources a. New Source Performance Standards b. Prevention of Significant Deterioration New Source Review and the Best Available Control Technology Standard 3. Technology-Based Emission Standards for Existing Stationary Sources 4. Technology-Based Standards under the Air Toxics Program 5. Regulation of Mobile Sources 6. Interstate, Regional, and International Regulatory Authority Under the Act 7. Clean Air Act Remedies B. Clean Air Act Authority to Regulate GHGs 1. Ambient Air Quality Approach to Regulating GHG Sources 2. Technology-Based Approach to Regulating Stationary GHG Sources 3. Technology-Based Approach to Regulating Mobile GHG Sources 4. In Summary III. CLEAN AIR ACT PREEMPTION OF STATE COMMON LAW A. Preemption as a Doctrine: Background, Historical Underpinnings, and Purpose B. Clean Water Act Precedent, a Bellwether for the Clean Air Act? C. The Supreme Court's Evolving Preemption Doctrine D. Applying the Court's Jurisprudence to the Clean Air Act 1. Express Preemption of Common Law Claims Against Mobile Sources 2. Implied Preemption of Common Law Claims Against Stationary Sources for Traditional Air Pollutants a. Field Preemption b. Other Implied Preemption Theories 3. Do Greenhouse Gas Pollutants Deserve Different Preemption Treatment Due to Their Fundamentally Different Nature? IV. RECENT CLEAN AIR ACT CASES AND MISAPPLICATION OF PREEMPTION DOCTRINE A. Setting the Stage: American Electric Power v. Connecticut and the Difference Between Displacement and Preemption B. North Carolina v. Tennessee Valley Authority C. Recent Federal District Court Cases V. CONCLUSION I. INTRODUCTION

   Overwhelming scientific consensus now exists that the climate is changing and that these changes are due in large part to anthropogenic releases of greenhouse gases (GHGs). (1) This changing climate is already causing damage to public and private property. The Native Village of Kivalina's dire situation vividly illustrates this point. In 1992, the Village of Kivalina voted to fully abandon its historical home on a barrier island north of the Arctic Circle due to the effects of climate change. (2) Both the General Accountability Office and the Army Corps of Engineers recognize that multiple Alaskan tribes, including Kivalina, face imminent relocation due to erosion caused by climate change. (3) As climate change becomes more severe, these effects are likely to be felt by other at-risk Americans as well. (4) And yet, the federal government currently has no plan or funds in place to assist communities faced with imminent destruction and with the cost of relocating. Most assistance is only available from federal agencies after a disaster, not before. (5) Moreover, the Clean Air Act (CAA) provides no means for an aggrieved party to seek compensatory damages from a polluter under any circumstances except through its savings clause. (6) Providing a means for those harmed by climate change to recover from their losses is a significant hole currently left unaddressed by Congress.

   Traditionally, courts have filled such holes through the common law. (7) For example, it is foundational that courts have the ability to prevent harm from occurring through exercise of equitable powers and further ability to provide relief to aggrieved parties through their powers at law. (8) In the context of localized, intrastate air pollution, tort claims brought under theories of private and public nuisance as well as trespass formed the foundation of air pollution law well before state legislatures and Congress enacted statutory predecessors to the CAA. (9)

   Recently, however, the Supreme Court held in American Electric Power, Inc. v. Connecticut (AEP) that federal common law is fully displaced by the CAA. (10) And yet, the Court also expressly reserved the question of whether the CAA similarly preempts state common law claims. (11) More recently, Judge Pro, concurring in a Ninth Circuit case brought by Kivalina against major GHG emitters, highlighted that this question remains an open question. (12) Against this backdrop, several lower courts have extended AEPs conclusion to state common law in cases involving GHGs as well as traditional air pollutants. Specifically, these courts found that the CAA impliedly preempts state common law claims through the doctrines of field preemption and "objects and purposes preemption." (13)

   These cases each suffered from at least one of three mistakes. First, they fundamentally misunderstood the CAA's two savings clauses. (14) Second, they mistakenly injected the Supreme Court's displacement analysis into their preemption analysis, even though preemption analysis is significantly more demanding.. (15) And third, they conflated non-justiciability doctrines with their preemption analysis. (16) Although these mistakes are understandable given the extraordinary complexity of the CAA, the dramatic facts presented by climate change cases, and notoriously fuzzy Supreme Court preemption precedent, these mistakes are nonetheless problematic. They prevent parties aggrieved by climate change and localized pollution alike from seeking recovery for harm caused by pollution.

   Given this background, a detailed analysis of whether the CAA preempts climate change claims and localized air pollution claims sounding in state common law is needed. This paper seeks to serve that purpose. To develop a framework for answering this question, Part II of this paper first explores the maximum extent to which the CAA may regulate greenhouse gases without further congressional action. The purpose of this Part is to provide context for determining the Act's preemptive effect on state law. Part III applies Supreme Court precedent to the CAA to determine whether it preempts state law under the doctrines of field or conflict preemption. Given the larger body of Supreme Court preemption precedent under the Clean Water Act (CWA), similarities and differences between the two Acts are explored. This Part concludes that the CAA does not preempt state common law claims against stationary sources, but that it does preempt claims against manufacturers of mobile sources. It further finds that this conclusion extends to GHG emissions as well. Part IV details four recent federal cases--all of which held that the CAA preempts state common law--and critically examines their holdings and rationales. This Part concludes that three of these cases incorrectly applied preemption analysis to the CAA and that the fourth case's analysis is in tension with the Supreme Court's CWA precedent. Part V concludes by expounding upon the following warning: although climate change litigation may present a host of difficulties for potential plaintiffs, including questions of non-justiciability and tort causation, to foreclose a case based on preemption may have profound implications for more traditional toxic tort cases.

2. EXPLORING THE MAXIMUM REACH OF THE CLEAN AIR ACT

   The CAA is deservedly recognized as one of the most complex statutes on the books. (17) This complexity is reflective of the numerous individual programs under the Act and the significant attention to detail paid to this area of law by Congress. This Part first addresses the basic structure of the Act, including its basic regulatory programs and the model of cooperative federalism it employs. Programs already used to regulate GHG emissions and programs that could be used to regulate these emissions are explored in greater detail. This Part then probes the maximum extent to which CAA jurisdiction could be asserted in the climate change context. (18) This question is particularly pertinent given that, in early 2013, President Obama indicated his willingness to employ available executive powers to address climate change. (19) The analysis in this Section provides backdrop for Part III, which explores whether the Act preempts state common law either because it fully occupies the field or presents a conflict with state common law.

   1. Structure of the Clean Air Act: Regulatory Programs and Cooperative Federalism

      Congress originally enacted the CAA in 1970 and amended it significantly in 1977 and 1990. (20) Its core mandate is to "protect ... air resources ... to promote the public health and welfare." (21) Three major principles undergird nearly every aspect of the Act. First, technology-based emission standards, ambient air quality attainment standards, or a combination of the two can all yield improved air quality. (22) Second, new sources should be subject to more stringent emission controls than existing sources. (23) And third, implementing the Act's far-reaching regulatory regime is dependent on partnerships with the states. (24) Nearly every program within the Act flows from these broad principles.

      1. Ambient Air Quality: Standards, Implementation of Standards, and Preventing Deterioration of Ambient Air Quality

         The National Ambient Air Quality Standards ("NAAQS") form a large part of the CAA's foundation. The purpose of the NAAQS is to set ambient air quality standards on a pollutant-by-pollutant basis nationwide. (25) Currently, NAAQS exist for six criteria pollutants. (26) The Act requires that the EPA Administrator add pollutants to this list and promulgate new ambient air quality standards upon a finding that such pollutants "endanger [the] public health or welfare." (27) The Act splits the country into numerous air quality control regions to facilitate compliance with the NAAQS. (28) An air quality control region is in "attainment" if it meets the NAAQS for a pollutant." (29) Likewise, it is considered in "nonattainment" if it does not meet the standard for that individual...