Monday, June 20, 2011

Judge-Made Public Nuisance Law Displaced by Clean Air Act

The Supreme Court today ruled (8-0, Justice Sotomayor recused) that the federal Clean Air Act displaces the federal common law of nuisance in a case brought by several states, New York City, and private land trusts against private fossil-fuel fired power plants and the Tennessee Valley Authority--some of the largest emitters of carbon dioxide in the United States.

The ruling means that plaintiffs claiming a harm from greenhouse gas emissions must look to the Clean Air Act, and not to federal common law, for a remedy.

Justice Ginsburg wrote for the Court in American Electric Power v. Connecticut that the Clean Air Act "speaks directly" to the plaintiff's federal common law claim and therefore displaces it:

We hold 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 power plants.  [Massachusetts v. EPA] made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act.  And we think it equally plain that the Act "speaks directly" to emissions of carbon dioxide from the defendants' plants.

Op. at 10.

But the plaintiffs argued--and the Second Circuit agreed--that the Clean Air Act and EPA regulations couldn't displace their common law public nuisance claim, because the EPA hadn't yet regulated the defendants' emissions.  It doesn't matter, says the Court; judges shouldn't be making policy in areas where Congress has acted and delegated authority to regulate:

It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions.  The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions.  Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order.  Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located.  Rather, judges are confined by a record comprising the evidence the parties present.  Moreover, federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court.

Op. at 14-15.

The Court also held that the plaintiffs had standing.  The Court divided equally on standing and thus upheld the Second Circuit's ruling that the plaintiffs had standing.  It's no surprise that the plaintiffs' theory of standing--the same theory that plaintiffs successfully advocated in Massachusetts--is controversial among the Justice: A sharply divided Court ruled (5-4) in Massachusetts that states had standing to sue the EPA to challenge the agency's denial of their petition to regulate greenhouse gases.  Chief Justice Roberts wrote the dissent in Massachusetts, joined by Justices Scalia, Thomas, and Alito.  The Massachusetts ruling is as divisive now as it was then.  (Justice Sotomayor was on the Second Circuit panel, but she did not participate in the ruling, because she had by then been elevated and the other two panel judges agreed on the issue.)


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