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Greenhouse Chill

Has the Supreme Court frozen climate change litigation?

Fortnightly Magazine - November 2011

claims because it held the federal common law on nuisance would control.

The Supreme Court overturned the Second Circuit’s ruling on the federal common law issue, holding the CAA and the EPA’s authority and actions under the CAA categorically displace any federal common law right to seek abatement of carbon dioxide emissions from coal-fired power plants. 29 Citing Milwaukee II , the Court reiterated that “the relevant question for purposes of displacement is ‘whether the field has been occupied,’ not whether it has been occupied in a particular manner,” and when Congress addresses a question previously governed by a decision rested on federal common law, the need for such an unusual exercise of law-making by federal courts disappears.” 30 The Court explains the legislative displacement of federal common law doesn’t require the same sort of evidence of a clear and manifest congressional purpose demanded for preemption of state law, 31 but rather, the test is simply whether the statute “speaks directly to the question” at issue. 32 The Court stated that Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the CAA, and the act “speaks directly” to emissions of carbon dioxide from the defendants’ plants.

The Court held it was irrelevant that the CAA permits emissions until the EPA acts, because it is Congress’ delegation of regulatory authority under the Clean Air Act to the EPA, not the extent of the EPA’s specific regulatory actions on the issue, that displaces the federal common law of nuisance. Thus, the Court rejected the plaintiffs’ argument that the cause of action isn’t displaced because the EPA has yet to fully or actively regulate GHG emissions from these sources. Justice Alito filed a concurrence on the Court’s displacement holding, joined by Justice Thomas, stating his concurrence is based on the assumption that the interpretation of the Clean Air Act in Massachusetts was correct.

Moreover, the Court reiterated the EPA not only has authority to regulate GHG emissions, but also has an obligation to do so. According to the opinion, the CAA in section 111 directs the EPA to establish emissions standards for categories of stationary sources that, “in the Administrator’s judgment,” “cause, or contribute significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.”33 However, the term “judgment” doesn’t grant the EPA a “roving license to ignore the statutory text” in this respect.34 Once the EPA lists a category, it must establish performance standards for emission of pollutants from new or modified sources within that category,35 and relevant to this case, the EPA must regulate existing sources within the same category.36

Further, the courts noted the CAA provides multiple avenues for enforcement. If the EPA doesn’t set emissions limits for a particular pollutant or source of pollution, states and private parties may petition for a rulemaking on the matter, and the EPA’s response will be reviewable in federal courts.37 The act itself thus provides a means to seek limits on emissions of carbon dioxide from domestic power plants—“the same relief the plaintiffs seek