Common law on ice: using federal judge-made nuisance law to address the interstate effects of greenhouse gas emissions.

• Author: Mensher, Dan

1. INTRODUCTION A. The CAA Approach B. Common Law to the Rescue? II. THE CONTINUED ROLE OF FEDERAL COMMON LAW A. The Role of Federal Common Law B. Statutory Displacement 1. When Statutes Pre-Date Common Law 2. When Common Law Comes First 3. When Is Statutory Intent to Displace Evident? 4. But What Is the Scope of the Law's Displacement? III. THE CONTINUED VITALITY OF NUISANCE FROM INTERSTATE AIR POLLUTION A. The Clean Air Act 1. EPA 's Interpretation of the CAA and GHG Regulation 2. Discretionary Delegation and Displacement B. Other Laws Addressing Carbon Dioxide and Global Warming IV. CONCLUSION I. INTRODUCTION

   The year 2005 was the warmest on record. (1) The concentration of carbon dioxide currently in our atmosphere is nearly thirty percent higher than it was a century ago. (2) New studies reveal that the polar ice cap is melting at a rate of nine percent a year, the ice's thickness having thinned forty percent since 1960. (3) And, in the wake of hurricanes Katrina and Rita, concerns that global warming will create more frequent and violent natural disasters appear real and ominous. (4)

   Not only do worldwide observations confirm the ineluctable process of global warming, even those companies who produce significant amounts of greenhouse gases have acknowledged that anthropogenic climate change poses a significant problem for the world. (5) And, climate scientists are essentially unanimous in their conclusion that it is human production of greenhouse gases (GHGs), like carbon dioxide, from the burning of fossil fuels driving this climate change, rather than natural, cyclical climate shifts. Yet, for all the evidence and general consensus on the source of the problem and its ultimate consequences for the globe, the largest producer of GHGs, the United States, has done surprisingly little to address the issue.

   1. The CAA Approach

      The most natural legal framework in the United States to address global warming and greenhouse gases would appear to be the Clean Air Act (CAA). (6) Under the Act, the Environmental Protection Agency (EPA) has the authority to regulate air pollutants that pose a threat to human health or the environment. (7) Currently, the CAA addresses toxic substances like lead and mercury, as well as particulate matter that can cause respiratory and visibility problems. (8) Congress has delegated the authority to EPA to determine what pollutants ought to be covered under the CAA--when, in EPA Administrator's "judgment [a substance] cause[s] or contribute[s] to air pollution which may reasonably be anticipated to endanger public health or welfare," the administrator shall designate the substance as an air pollutant under the CAA. (9) Once EPA has listed a substance as an air pollutant, the CAA allows the agency to set emission levels on both stationary sources, like factories, and mobile sources, like cars and trucks. (10) Before any of these regulations can occur, however, the substance must be defined as an air pollutant. Without this designation, a substance will remain beyond the CAA's reach.

      In 2003, EPA rejected a petition from interested parties and the comments of numerous states, and it decided not to list carbon dioxide as an air pollutant. (11) The agency decided that while carbon dioxide might pose some risks to human health and welfare, EPA neither had the statutory authority to regulate the substance or the belief that it was the type of substance Congress intended to reach under the CAA. (12) In response, a number of states, environmental organizations, and other interested parties sued EPA seeking court intervention to force EPA to include carbon dioxide as an air pollutant. (13) The D.C. Circuit found for EPA, but it divided three ways. (14) One judge believed that the plaintiffs lacked standing, one believed that the CAA did not obligate EPA to list carbon dioxide, while the final judge believed that the plaintiffs did have standing and that carbon dioxide met the statutory requirements of an air pollutant, thus triggering EPA's duty to regulate it under the statute. (15)

   2. Common Law to the Rescue?

      Without a statutory tool to address the causes of global warming, states, cities, and citizens' groups concerned with the effects of climate change turned to common law. (16) Alleging that carbon dioxide emissions were creating a public nuisance by causing global warming, the plaintiffs sued the ten largest carbon dioxide-emitting power companies in the United States in federal court. (17) The plaintiffs argued that global warming is causing serious harm to the public through rising oceans, more violent storms, ecological damage, and other damage to public and private resources. (18) The plaintiffs traced these harms directly to carbon dioxide emissions, like those of the defendants. (19) As the defendants' emissions were traveling interstate, creating harms across the United States, the plaintiffs brought the suit under federal common law. (20)

      On September 22, 2005, the court dismissed the public nuisance suit. The court, sua sponte, rejected the case because it deemed the issue to be a political question, and thus not fit for judicial review. (21) In part, the court based this decision on the defendants' argument that "there is no recognized federal common law cause of action to abate greenhouse gas emissions that allegedly contribute to global warming." (22) Without such law, the court would be left to fabricate and apply wholly new policy decisions, which could threaten the Constitutional divide between the three branches of federal government. (23)

      The plaintiffs have appealed this decision to the Second Circuit, arguing, in part, that this holding ignores the history of federal common law in the context of interstate air pollution. (24) A century ago, the Supreme Court held that federal common law did provide a rule of decision for a public nuisance caused by interstate air pollution. (25) While the court would have to update the rule and apply it to the facts presented in the case, this kind of judicial application of common law is standard. (26)

      In deciding this case, the Second Circuit must first determine whether common law provides a valid rule of decision for this type of interstate air pollution case, or whether the lower court was correct that there is no law to apply. Even if the Second Circuit finds that common law could provide an appropriate rule of decision, it will then need to decide if the common law remains viable, or if Congress has displaced the preexisting common law with legislation. If the plaintiffs receive a favorable outcome, they will need to prove their nuisance case in the district court below, a subject this Comment does not address. (27)

      Although the ultimate outcome of the plaintiffs' case is uncertain, it seems likely that federal common law is an appropriate body of law for their nuisance claim. Although federal courts, unlike state courts, are not courts of general jurisdiction, they may create and apply federal common law where interstate issues dominate and the laws of one state would be inadequate or inappropriate to address the problem. (28) So as to the first issue before the court, it appears that federal common law would be correct. The more difficult question is whether the common law for air pollution remains viable in the face of the CAA.

      Federal courts retain the ability to craft law to address federal questions only when Congress has not already done so. (29) Thus, for the plaintiffs to win, they will need to demonstrate that the CAA does not displace the common law. While the lower court spent little time on the issue of displacement, it appears to have applied the wrong test to determine the vitality of common law. (30) This misapplication is not surprising, as scholarly literature demonstrates that the relationship between federal statutory and common law is not a simple issue. Professor Merrill, for example, in his recent article on global warming, analyzed the extent to which the CAA displaces federal common law. (31) Rather than applying the federal common law displacement test discussed below, Professor Merrill uses a state law preemption test, where the analysis revolves around conflict and field preemption. (32) He concludes that there is a "presumption against judicial lawmaking," and so statutes are assumed to displace the common law. (33) Professor Merrill is undoubtedly correct that this presumption holds true in most situations. But, as the Supreme Court has clarified in a series of cases, the presumption is actually reversed when the federal common law predates legislative action. (34)

      Part of the confusion in this area of the law stems from the Supreme Court's use of language in its opinions. In City of Milwaukee v. Illinois (Milwaukee II), (35) for example, the Court discusses how federal statutory law can "pre-empt" the federal common law. In other cases, however, the Court describes this process as "displace[ment]," to stress the distinction from state law preemption. (36) As a result of the Court's inconsistent language, the proper test can appear rather unclear. Thus, while Professor Merrill is correct that "Milwaukee II is ambiguous as to what the standard for displacement of federal common law should be," later opinions clarify the test. (37)

      In order to set the displacement discussion on sound legal footing, Part II of this Comment will begin by examining the Supreme Court's jurisprudence on the relationship between federal statutory law and federal common law, and how displacement of federal common law is separate and distinct from the preemption of state law. Part III will then examine how the CAA and other federal legislation interact with the common law at issue in this case, to determine what, if any, of the common law remains. Ultimately, in Part IV, the Comment concludes that while the plaintiffs in this case may have a difficult time establishing other elements of their case, (38) they do...