Emerging Clarity on Climate Change Law: EPA Empowered and State Common Law Remedies Enabled

• Date: 01 September 2014

44 ELR 10744 ENVIRONMENTAL LAW REPORTER 9-2014

C O M M E N T S

Emerging Clarity on

Climate Change Law:

EPA Empowered and State

Common Law Remedies Enabled

by Howard A. Learner

Howard A. Learner is President and Executive Director of the Environmental Law & Policy Center.

The emerging law of climate change is becoming

clearer. e U.S. Supreme Court’s series of climate

change and other Clean A ir Act (CAA)1 decisions

authorize the U. S. Environmental Protection Agency

(EPA) to advance its standards-setting process, and provide

general deference to EPA’s implementation of the CAA

and other statutory programs. e Court is sending a clear

message to the U.S. Court of Appeals for the District of

Columbia (D.C.) Circuit, which reviews most of EPA’s nal

standards, and to other courts, to restrain judicial activism.

Likewise, federal and state courts are opening the door for

plaintis to assert state common law tort remedies.

I. Introduction

e Court’s majority has made clear its solid support for the

landmark Massachusetts v. EPA2 decision authorizing EPA

to regulate greenhouse gases. e partisa n political attacks

and the novel theories of the cottage industry of appellate

attorneys representing certain polluting industries have not

deterred the Court. e Court’s recent decisions in EPA v.

EME Homer City Generation (EME)3 and Utility Air Regu-

latory Group v. EPA (UARG),4 which strongly although

not entirely uphold EPA’s CAA implementation discretion,

1. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.

2. Massachusetts v. EPA, 549 U.S. 497, 37 ELR 20075 (2007).

3. EPA v. EME Homer City Generation (EME), 572 U.S. __ (2014), No. 12-

1182 (U.S. Apr. 29, 2014).

4. Utility Air Regulatory Grp. v. EPA (UARG), 573 U.S. __ (2014), No. 12-

1146 (U.S. June 23, 2014).

should reduce confusion and bring much-needed increased

certainty for both state policymakers a nd energy industry

executives to move forward in making business decisions.

At the same time, both federal and state courts are

beginning to ll in the blanks left by the Court in its Amer-

ican Electric Power v. Connecticut (AEP)5 decision, which

held that the CA A displaces federal common law injunc-

tion actions brought by states and other plaintis seeking

to limit carbon dioxide pollution from coal plants. AEP

arguably left open the question of whether federal common

law damages actions were similarly displaced. at door

has now been closed by the Supreme Court’s declining to

review the U.S. Court of Appeals for the Ninth Circuit

decision nding displacement in Native Village of Kivalina

v. ExxonMobil Corp. (Kivalina).6

On the other hand, AEP explicitly left open the door for

state common law nuisance actions and remedies, stating:

“None of the parties have briefed preemption or otherwise

addressed the availability of a claim under state nuisance

law. We therefore leave the matter open for consideration

on remand.”7 Indeed, the C ourt implied through dicta

referencing Clean Water Act (CWA)8 cases that the state

common law actions could go forward.9 Plaintis have

stepped through this door and two recent decisions by

the U.S. Court of Appeals for the ird Circuit10 and the

Iowa Supreme Court11 have armed plaintis’ rights to

bring state common law tort actions seeking damages and

injunctions due to air pollution from a power plant and

5. American Elec. Power Co. v. Connecticut (AEP), 131 S. Ct. 2527, 41 ELR

20210 (2011).

6. Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 42 ELR

20195 (9th Cir. 2012), cert. denied, 133 S. Ct. 2390 (2013).

7. See AEP, 131 S. Ct. at 2540.

8. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607.

9. AEP, 131 S. Ct. at 2540.

10. Bell v. Cheswick Generating Station, 734 F.3d 188, 43 ELR 20195 (3d Cir.

2013), cert. denied sub nom. GenOn Power Midwest, L.P. v. Bell, 134 S. Ct.

2696 (2014).

11. Freeman v. Grain Processing Corp., No. 13-0723 (Iowa June 13, 2014).

Author’s Note: e Environmental Law & Policy Center is the

Midwest’s leading public interest environmental legal advocacy

and eco-business innovation organization. e author is also an

Adjunct Professor at the University of Michigan Law School and

Northwestern University Law School, where he teaches seminars

in energy and environmental law and climate change policy. He

holds a J.D. from Harvard Law School (1980) and a B.A. from the

University of Michigan (1976).

Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.