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Greenhouse Chill

Has the Supreme Court frozen climate change litigation?

Fortnightly Magazine - November 2011

by invoking federal common law.”38 The court noted that if the plaintiffs are dissatisfied with the EPA’s course of action or inaction, their recourse under federal law is to follow the CAA procedures and seek review by the courts.39

The equally divided Court (4-4 split) affirmed the Second Circuit’s holding on the plaintiffs’ standing to bring their claims.40 At least four justices held that at least some plaintiffs have Article III standing under Massachusetts, which permitted a state to challenge the EPA’s refusal to regulate GHGs under the Clean Air Act . As a result, the Second Circuit’s holding on the standing issue stands, and the district court has jurisdiction to hear the case, although the Supreme Court’s affirmance on this issue isn’t binding on other circuits. Thus, the Court’s decision doesn’t provide a jurisdictional bar to future climate change tort lawsuits, although such a bar was sought by the industrial defendants in this case.

The Court didn’t decide other threshold issues, namely prudential standing and the political question doctrine, nor based its holding on these issues. In fact, the Court barely mentioned those doctrines in its decision, but instead noted that four members of the Court also held there’s no other threshold obstacle that bars review. The Court noted in a footnote that in addition to the political question doctrine arguments made below, the power companies sought dismissal “because of a ‘prudential’ bar to the adjudication of generalized grievances, purportedly distinct from Article III’s bar.” 41 Therefore, the Court’s statements on these “other threshold issues” are rather limited and wouldn’t provide much guidance to future litigation in the climate change context.

Finally, as the Second Circuit didn’t reach the state tort claims, neither did the Supreme Court. In light of the holding that the CAA displaces federal common law, the Court stated the availability of a state lawsuit depends, among other things, on the preemptive effect of the federal act. 42 Because none of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law, the Court left the matter for consideration on remand. 43

Lingering Liabilities

While the Supreme Court firmly held in AEP that federal nuisance suits were inappropriate, it would be stretching the holding to assume it stands for more general propositions. It does not.

First, the landmark Massachusetts case made it clear the Supreme Court won’t stand in the way of government regulation when that regulation results from a detailed scientific analysis and is specifically allowed by statute. So, while AEP makes it difficult for federal nuisance claims to proceed, AEP shouldn’t be viewed as slowing the regulatory process. Instead, that process continues. For instance, in July 2011 the EPA finalized its Cross-State Air Pollution Rule (CSAPR), which is designed to implement new requirements concerning the transport of air pollution across state borders. The EPA also proposed a new rule to increase to 28 the number of states subject to CSAPR; EPA amended its proposed emissions budgets in October, and the rule is expected to be finalized in late fall