COULD OFFICIAL CLIMATE DENIAL REVIVE THE COMMON LAW AS A REGULATORY BACKSTOP?

• Author: Nevitt, Mark P.

Abstract

The Trump Administration is rapidly turning the clock back on climate policy and environmental regulation. Despite overwhelming, peer-reviewed scientific evidence, administration officials eager to promote greater use of fossil fuels are disregarding climate science. This Article argues that this massive and historic deregulation may spawn yet another wave of legal innovation as litigants, including states and their political subdivisions, return to the common law to protect the health of the planet. Prior to the emergence of the major federal environmental laws in the 1970s, the common law of nuisance gave rise to the earliest environmental decisions in U.S. history. In some of these cases, the Supreme Court issued injunctions to control significant sources of air and water pollution, but the Court later held that the Clean Water Act and Clean Air Act displaced the federal common law of nuisance.

This Article argues that official climate denial may yet revive the common law as a regulatory backstop. If the U.S. Environmental Protection Agency reverses its earlier endangerment finding for greenhouse gas emissions, the Clean Air Act may no longer displace the federal common law of nuisance. While expert administrative agencies normally are more competent than the judiciary in fashioning regulatory policy, agencies that deny climate science should expect to face judicial intervention. As described in this Article, such action is consistent with the historic role the judiciary has played when other branches of government failed to prevent significant environmental harm.

TABLE OF CONTENTS INTRODUCTION I. A HISTORY OF INTERSTATE NUISANCE LAW A. The Initial Public Nuisance Cases 1. Missouri v. Illinois (1906): The First Interstate Nuisance Case Decided by the Supreme Court 2. Georgia v. Tennessee Copper (1907): The Court Acknowledges States' Special Status as Quasi-Sovereigns 3. Sewage, Garbage & Water Diversion Conflicts Decided by The Court B. The Court Sours on Hearing Interstate Nuisance Cases Following the Enactment of Federal Regulatory Statutes 1. Milwaukee I (1972): The Court Keeps Federal Common Law Nuisance Claims Alive, but Relegates Them to Lower Federal Courts 2. Milwaukee II (1981): Preemption and the Clean Water Act 3. International Paper Co. v. Ouellette (1987): The Court Preserves State Common Law Claims II. COMMON LAW CLIMATE LITIGATION A. AEP v. Connecticut in District Court: An Initial Test for Common Law Nuisance Claims Under the Clean Air Act B. The Intervening Ruling in Massachusetts v. EPA (2007) and the Second Circuit's Subsequent Ruling in AEP v. Connecticut (2009) C. AEP v. Connecticut (2011): Displacing Federal Common Law Claims but Leaving the Door Open for State Law Claims III. FEDERAL COMMON LAW IN THE WAKE OF AEP V. CONNECTICUT A. Michigan v. U.S. Army Corps of Engineers: The Seventh Circuit Confirms the Role of the Common Law as Regulatory Backstop B. Native Village of Kivalina v. ExxonMobil Corp.: The Ninth Circuit Applies AEP to Dismiss Cities' Federal Common Law Climate Claims IV. COULD OFFICIAL CLIMATE DENIAL REVIVE THE COMMON LAW? A. The Enduring Legacy of the Federal Common Law of Interstate Nuisance B. Why Official Climate Denial May Backfire and Revive the Common Law 1. A Reversal of EPA's "Endangerment" Finding 2. If Congress Amends the Clean Air Act to Reverse Massachusetts v. EPA, Federal Common Law Would Be Revived 3. State Common Law Nuisance Claims Remain Viable 4.Other Avenues for Climate Change Litigation CONCLUSION "Global warming may be a 'crisis,' even 'the most pressing environmental problem of our time.' Indeed, it may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it. It is not a problem, however, that has escaped the attention of policymakers in the Executive and Legislative Branches of our Government, who continue to consider regulatory, legislative, and treaty-based means of addressing global climate change."

--Chief Justice John Roberts, dissenting in Massachusetts v. EPA (2007) (1)

"The concept of global warming was created by and for the Chinese in order to make U.S. manufacturing non-competitive."

--Donald J. Trump, Nov. 6, 2012 (2)

INTRODUCTION

Prior to the advent of comprehensive regulatory programs to protect the environment, the common law served as the primary vehicle for redressing environmental harm. More than a century ago, states used the common law of interstate nuisance to seek redress for the most serious transboundary pollution problems. (3) Exercising its original jurisdiction over disputes between states, the U.S. Supreme Court issued injunctions limiting smelter emissions (4) and requiring cities to build sewage treatment plants (5) and garbage incinerators. (6)

Today the common law has been eclipsed by the enactment of federal legislation requiring agencies to regulate sources of pollution. These statutes have been interpreted broadly to give agencies great power to respond to emerging problems. For example, in Massachusetts v. EPA the U.S. Supreme Court held that the Clean Air Act (CAA) gives the U.S. Environmental Protection Agency (EPA) the authority to regulate greenhouse gas (GHG) emissions if they "endanger public health or welfare" (7) by contributing to global warming and climate change. (8) The Court rejected not only the claim that EPA lacked such authority, but also the agency's other rationales for refusing to take action. (9) Following the ruling, EPA had to decide "whether sufficient information exist[ed] to make an endangerment finding." (10) It made the endangerment finding two years later. (11)

In a series of cases beginning in the 1970s, the Court has held that the comprehensive regulatory programs erected by the Clean Water Act (CWA) and the CAA displace federal common law nuisance claims. (12) When states sought to use public nuisance law to address the threats posed by climate change, industry groups urged the Court to bar such actions on constitutional grounds. (13) Instead, in June 2011 the Court held in American Electric Power Co., Inc. v. Connecticut (AEP) that the CAA displaced federal common law nuisance claims in the context of regulating GHG emissions. At the time of the ruling, the Obama Administration EPA was moving aggressively to regulate GHG emissions. But, writing for a unanimous Court, Justice Ginsburg warned that a decision by the EPA not to regulate greenhouse gas emissions would invite litigation and would be subject to judicial review. (14)

With the election of President Trump, federal environmental policy has sharply shifted. The President has announced his intent to withdraw the U.S. from the Paris Agreement that every other country in the world has accepted as a global response to climate change. (15) EPA is moving aggressively to repeal the Obama Administration's Clean Power Plan, (16) roll back Corporate Average Fuel Economy (CAFE) standards, and attempt to preempt state programs to reduce GHG emissions. (17) Many Trump supporters want EPA to reverse its finding that GHG emissions endanger public health and welfare by contributing to climate change. (18)

If the Trump EPA reverses the 2009 endangerment finding, this would foreclose the EPA's ability to use the CAA to regulate GHG emissions. This Article considers whether such an action unwittingly could revive the federal common law of nuisance as a regulatory backstop. While the Supreme Court ruled in AEP that the CAA displaces any federal common law right to seek abatement of carbon-dioxide emissions from fossil fuel-fired power plants, this was predicated on EPA actually making a reasoned and informed judgment of GHG emission dangers--not jettisoning agency expertise in favor of politics. (19) This litigation, particularly if brought by states as quasi-sovereigns against EPA, could serve as a powerful prod to force federal action on climate change. After all, states have the "last word as to whether [their] mountains shall be stripped of their forests and [their] inhabitants shall breathe pure air." (20)

In light of the Trump EPA's current stance on environmental regulations, the Court's decision in AEP, and other nuisance cases decided by federal appellate courts, (21) this is a propitious time to reconsider the use of public nuisance law to redress environmental problems. This Article focuses on what we call "the common law of interstate nuisance"--a body of law developed when states, acting in a parens patriae capacity, sought to protect their citizens from environmental harm originating in other states through public nuisance actions under either federal or state common law. (22)

This Article makes two core arguments. First, it maintains that the common law of nuisance remains an essential backstop when existing regulatory authorities fail to address significant environmental problems. Second, reconnecting nuisance law to its historical roots, the Article maintains that common law litigation has served as an effective prod to help spur the development and implementation of new pollution control technology and to stimulate regulatory action to require its use, rather than serving as a vehicle for the judiciary to impose its own solutions for environmental problems. (23)

This Article proceeds in four parts. Part I reviews the history of the common law of interstate nuisance from the early twentieth century through the rise of the modern regulatory state. (24) Part II focuses on efforts to use this doctrine to control GHG emissions causing climate change, focusing on state efforts to require utilities operating coal-fired power plants to reduce their emissions. These efforts culminated in the Supreme Court's decision in AEP v. Connecticut holding that the CAA displaces federal common law. Part III then considers why AEP does not eliminate common law as a regulatory backstop, as illustrated by the Seventh Circuit's...