AuthorSchiff, Damien M.
  1. INTRODUCTION 854 II. HISTORIC AND CURRENT EFFORTS TO ADDRESS CLIMATE CHANGE THROUGH LITIGATION 857 III. PREEMPTION PRINCIPLES BAR STATE-LAW-BASED CLIMATE SUITS 864 A. Overview of Supremacy Clause Jurisprudence 864 B. Ascertaining the Preemptive Effect of the Clean Air Act through Clean Water Act Jurisprudence--International Paper Co. v. Ouellette 866 C. The Lower Courts' Application of Ouellette to the Clean Air Act 871 D. Under the Rule of Ouellette, the State-Law-Based Climate Suits Are Preempted 874 IV. PREEMPTION OF STATE-LAW-BASED CLIMATE SUITS CONSTITUTES SOUND POLICY 880 V. CONCLUSION 883 I. INTRODUCTION

    For many, global warming is the preeminent environmental issue of our time. (1) The debate over climate change--in particular, its causes and the efforts that should be undertaken to combat its effects--has roiled the political branches of government for decades. (2) Yet not much has been accomplished by Congress or administrative agencies. (3) For that reason, climate change advocates (4) have over the last decade or so shifted their efforts to the judiciary to obtain what they believe is the needed response to climate change.

    In this Article, we argue that the Constitution's Supremacy Clause (5) precludes this latest effort. Specifically, we contend that the dozen or so lawsuits that have been filed over the last few years in courts throughout the country by various state and local governments and environmental organizations against the nation's top fossil fuel producers and marketers, aimed at remedying the alleged localized harms of climate change, are preempted by the Clean Air Act. (6)

    Our analysis begins with a review of green-advocacy efforts over the last twenty years to address climate change through litigation. These "first generation" lawsuits focused, with limited success, on the federal Clean Air Act and federal common law theories. (7) This period ended with the United States Supreme Court's ruling in American Electric Power Co. v. Connecticut (6) (American Electric Power) that the Clean Air Act displaces at least some federal common law causes of action directed against greenhouse gas emissions. (9) After that decision, climate change advocates looked to state law. The ensuing "second generation" of lawsuits has focused on state-law-based claims against energy companies. The recent explosion of such suits in California exemplifies this updated litigation strategy directed toward responding to climate change. (10)

    Following an overview of this ongoing litigation, our Article proceeds to a discussion of preemption principles, then addresses the United States Supreme Court's application of those principles to ascertain the preemptive scope of the Federal Water Pollution Control Act, (11) more commonly known as the Clean Water Act. Following that, the Article explains why the Supreme Court's rule governing the preemptive scope of the Clean Water Act should apply to the Clean Air Act (an issue that the High Court has yet to address), and in turn shows why, given that rule, the state-law-based climate cases are preempted. Although our Article acknowledges that the Clean Air Act may not preempt all forms of state-law-based climate change claims, (12) it concludes that any such non-preempted causes of action would fail to afford any meaningful remedy for the existing state-law-based plaintiffs. The Article ends with a discussion of several reasons as to why preemption of the state-law-based climate suits is not just the right legal outcome, but is good policy too. (13)


    Since the start of the climate change movement some four decades ago, (14) those concerned with climate change have sought national and global solutions from the political branches of government. But those efforts have produced only frustration. Given the enormous economic and political costs entailed by substantial reduction in greenhouse gas emissions, at least the federal government has been slow to respond. (15) Consequently, non-federal government entities, nonprofits, and individuals concerned about climate change have looked to the courts for a "solution"--first, by getting courts to require federal regulation of greenhouse gas emissions, then by suing to stop or punish companies considered to be major emitters. (16)

    The seminal climate-change decision is Massachusetts v. U.S. Environmental Protection Agency. (17) In that case, a group of private organizations filed a rulemaking petition asking the United States Environmental Protection Agency (EPA) to regulate greenhouse gas emissions from new motor vehicles as "air pollutants" under Section 202 of the Clean Air Act. (18) EPA denied the petition. (19) Joined by several intervening states (including Massachusetts) and municipalities, petitioners sought review of the EPA's order in the U.S. Court of Appeals for the D.C. Circuit. (20) A split panel denied the petition, holding that even if the EPA had the statutory authority to regulate greenhouse gas emissions from new motor vehicles, EPA properly declined to exercise that authority. (21) The United States Supreme Court thereafter granted a petition for writ of certiorari. (22)

    In a 5-4 decision, the Court ruled in favor of the petitioners. (23) The Court first held that, given their unique status and interests as sovereign entities, the state petitioners had standing to challenge EPA's decision. (24) Next, the Court held that "greenhouse gases fit well within the Clean Air Act's capacious definition of 'air pollutant'" and. as a consequence, "EPA has the statutory authority to regulate the emission of such gases from new motor vehicles." (25) The Court noted that if, in response to the rulemaking petition, "EPA makes a finding of endangerment, the Clean Air Act requires the Agency to regulate emissions of the deleterious pollutant from new motor vehicles." (26) Importantly. "EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do." (27)

    The decision in Massachusetts v. EPA led to a significant change in the federal regulatory landscape. In December, 2009, the Obama Administration's EPA responded to the ruling by determining that greenhouse gas emissions endanger the public health and welfare of current and future generations. (28) On the basis of that finding, EPA and the Department of Transportation issued joint rules regulating mobile-source emissions. (29) Although Massachusetts v. EPA delivered an important victory to those searching for a regulatory response to climate change at the federal level, they could not have predicted that the decision would be used in a later Supreme Court case to limit their ability to bring another kind of climate-change claim--one brought against greenhouse-gas emitters on a theory of federal common law nuisance (discussed below).

    As Massachusetts was being litigated, climate change litigants also set their sights on greenhouse-gas-emitting private companies. They alleged novel federal and state common law nuisance theories either to enjoin industry emissions or to make energy companies pay damages for alleged harms caused by the global warming associated with their emissions. (30) To date, and as exemplified by key cases discussed below, all such claims have failed for a variety of reasons.

    In California v. General Motors Corp. (31) the State of California sought damages against a number of automakers for, among other reasons, contributing to the alleged public nuisance of global warming. (32) The Restatement (Second) of Torts defines a "public nuisance" as an "unreasonable interference with a right common to the general public." (33) To succeed, a public nuisance claimant generally must prove that a defendant's conduct or activity unreasonably interfered with the use or enjoyment of a public right and thereby caused the general public substantial and widespread harm. (34)

    The district court in General Motors dismissed California's claims on the ground that they were not justiciable under the political question doctrine. (35) Adjudicating such claims would require a court to "make[] an initial policy determination" about the reasonableness of defendants' emissions in light of the alleged harms, and would entangle the judiciary in matters of "interstate commerce and foreign policy" (given that climate change is a phenomenon that knows no borders). (36) Because it dismissed the case as non-justiciable, the court did not reach the issue of whether California's federal and state common law nuisance claims were otherwise viable. (37)

    Just a few years later, the United States Supreme Court provided guidance. In American Electric Power (38) a coalition of states, the City of New York, and private land trusts sued a number of large CO2 emitters (private power companies and the federal Tennessee Valley Authority) on claims of federal and state common law public nuisance. (39) The plaintiffs sought abatement of the alleged nuisance--specifically, "a decree setting carbon-dioxide emissions for each defendant at an initial cap, to be further reduced annually." (40) The plaintiffs did not seek damages.

    The Court concluded that the plaintiffs had no claim under federal common law. The Court held that "the Clean Air Act and the EPA actions it authorizes displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired powerplants." (41) The linchpin of the Court's holding was its decision in Massachusetts, which, as explained above, held that carbon-dioxide emissions can be regulated under the Clean Air Act. (42) As a consequence, the Court in American Electric Power concluded that "the Act 'speaks directly' to emissions of carbon dioxide from the defendants' plants," which...

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