No [Global] Warming Up To A Nuisance: Supreme Court Finds Clean Air Act Preempts Federal Climate Change Nuisance Claim

On Monday, the highest court in the land held in American Electric Power Co., Inc. v. Connecticut that federal common law nuisance claims relating to climate change are displaced (or “preempted” for you traditionalists out there) by the Clean Air Act (CAA) and Environmental Protection Agency (EPA) action authorized by the CAA. The case began in 2004 when eight states and New York City sued American Electric Power Company, Inc. and three other private electric companies as well as the Tennessee Valley Authority for federal common law nuisance as well as state tort claims. (It was quickly consolidated with a similar case brought by non-profit environmental land trusts.) The plaintiffs’ federal common law nuisance claim was based on their contention that, as the “five largest emitters of carbon dioxide in the United States,” the defendants’ actions resulted in a “substantial and unreasonable interference with public rights.” That’s the “what”… here’s the “why”…

Federal common law exists for “subjects of national concern.” In the 1972 decision of Illinois v. Milwaukee, the Supreme Court recognized that the issue of “air and water in their ambient or interstate aspects” is one of those “subjects of national concern.” Since then, typically, federal common law claims (like nuisance) have been permitted to prevent air pollution originating in one state from entering another state. However, when a federal statute is found to speak to the question at issue, the federal common law disappears.

Here, a confluence of three things came together to banish federal common law claims in climate change cases. First is the Clean Air Act. Second is the Supreme Court’s 2007 decision in Massachusetts v. EPA. In what many consider a landmark climate change case, the Court held that the CAA authorizes federal regulation of emissions of carbon dioxide and other GHGs. Lastly, is the fact that the Clean Air Act authorizes EPA to make rules regulating emissions of certain substances. Indeed, in response to Massachusetts, EPA found that GHGs are an endangerment to the public health and welfare, which paved the way for EPA to regulate GHGs (and EPA is, in fact, in the process of rulemaking for greenhouse gas (GHG) emissions). Put these three things together and you have a federal statute that authorizes an expert governmental agency (hello, EPA) to regulate a highly technical and scientific issue (hello, GHGs). It came as no great surprise to most experts, then, that the outcome of this case would find the federal courts being relieved of any authority/obligation to involve themselves.

While the Court was sure to point out that it “endorses no particular view of the complicated issues related to carbon-dioxide emissions and climate change,” the 8-0 decision was a strong affirmation of its decision in Massachusetts. (Although, Justice Alito made sure to issue a one sentence concurrence reminding everyone that he thinks the Court got it wrong in Massachusetts.) The Court points out that rather than use federal common law claims, disgruntled individuals’ or groups’ recourse will be limited to seeking Court of Appeals review of EPA’s rules.

Okay, so then, are cases like this a thing of the past? Not necessarily – for three reasons. First, the Court explicitly left open the issues of whether STATE tort law claims are also preempted. Since the litigants did not brief that particular issue, the case was remanded for the Second Circuit to consider that gem. Secondly, more than one bill has been introduced in Congress which would strip EPA of its authority to regulate the emission of GHGs. If there is no federal statutory authority to regulate GHGs, it is possible that the federal common law would be back in play. Finally, the court was 4-4 on jurisdictional issues, meaning that the Second Circuit’s decision to allow the case to move forward on those issues was undisturbed. Presumably Kagan, Breyer, Ginsburg and Kennedy believed that the plaintiffs had standing and that the case did not present a political question. Justice Sotomayor recused herself since she sat on the Second Circuit at the time the case was heard (although did not participate in the decision); however, it is likely that she would fall in that camp as well. Not only was this case permitted to continue, but this composition of the Court makes it unlikely that threshold jurisdictional issues will be used to foreclose these types of cases in federal court going forward.