Climate Change

The U.S. Supreme Court blocked a lawsuit yesterday aimed at reducing greenhouse gas emissions, holding that because the power to regulate emissions had been delegated to the Environmental Protection Agency under the Clean Air Act, federal common law did not apply.

Although the ruling limited the threat of tort liability, there are some positive implications for U.S. climate policy, writes Yale Law Professor Douglas Kysar in Nature. But along with the good comes not just the “bad” but the “downright ugly,” Kysar writes.

The “good” is that the opinion “solidified the court's landmark 2007 conclusion that the EPA has the power to regulate carbon dioxide as a pollutant.” This means that if Congress attempts to limit the EPA’s power in this area, these lawsuits could be reinstated, he explains. The court also left open state common law as an avenue for pursuing such suits.

The “bad” is that lawsuits under federal common law are foreclosed even if the EPA never exercises its power to regulate, so long as that power is not explicitly repealed by Congress.

And in the category of “downright ugly,” is the opinion’s overt skepticism about the science of climate change, Kysar writes, which likely influenced their decision in this case. The opinion suggests readers explore “views opposing the EPA” by reading a profile of Freeman Dyson, “the theoretical physicist whose controversial views on climate change have been widely promoted by the climate-skeptic community.”

He continues:

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By Douglas Kysar, a professor at Yale Law School and a member scholar at the Center for Progressive Reform. Kysar's analysis is cross-posted on CPRBlog.

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The Supreme Court this morning granted certiorari in the case of American Electric Power Co. v. Connecticut, a common law nuisance suit seeking an order compelling large electric utility companies to reduce their contributions to global climate change. At issue will be a variety of doctrines - such as standing and political question - that nominally originate from constitutional limitations on the role of the judicial branch, but that judges have, over the years, expanded well beyond the text and structure of the Constitution. AEP is the first climate change nuisance suit to reach the Supreme Court, but it is only one of several that have been initially dismissed by district court judges who seem all too eager to avoid these controversial and boundary-straining suits.

The problems with these dismissals are two-fold. First, to the extent that judges are worried about stretching tort law to reach the mother of all collective action problems - global climate change - their concerns are grossly overstated. Numerous avenues exist within the substantive law of tort itself to avoid finding defendants liable for their contributions to climate change (see my recent paper outlining these avenues here). Second, to the extent that judges erect preliminary barriers that deprive courts of the opportunity to engage with climate change tort claims on the merits, they abdicate a traditional role that lies at the very heart of our system of limited government. Tort law is a residual locus for the airing of grievances when no other government actor is responsive to societal need. Unlike legislators and executive branch officials, judges have to give an answer when a claim of wrongful harm is brought to their attention. Using slippery and seemingly unprincipled doctrines like standing and political question to avoid that responsibility works to short-circuit a fundamental node in our system of divided and overlapping governmental power.

In an apparent effort to limit the damage that might be wrought in the AEP case, the Obama Administration intervened in support of certiorari, but on a more limited ground of implied preemption than industry had advocated. The Administration claims that the EPA has gotten busy implementing the Clean Air Act with respect to greenhouse gas emissions and that allowing federal common law nuisance claims to proceed would interfere with the regulatory initiative. The problem with this argument is that EPA's efforts thus far have been fairly tepid and incremental. The agency has specifically refused to set a national ambient air quality standard for greenhouse gases, which would trigger a more comprehensive control regime that one plausibly might argue "occupied the field" and therefore should displace common law tort actions. Moreover, even if the agency did undertake that kind of full-throated implementation for greenhouse gases, its regulations will inevitably be contested in court for years. Unless and until a comprehensive regulatory control regime is put into actual operation, the threat of tort liability should remain as part of the balance of powers that shapes what regime eventually does emerge. Judges must understand that part of their role in a system of divided power is to prod and plea with other branches that are better positioned to address an area of societal need, but that are less predisposed to try. Adjudicating climate change nuisance suits on the merits offers that potential to prod and plea. Standing, political question, and implied preemption instead invite judges to duck and weave.

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For more perspectives from Douglas Kysar on environmental and climate change regulation, watch ACSblog's video interview with Kysar, and video of a recent ACS panel discussion centered on Kysar's new book, Regulating from Nowhere: Environmental Law and the Search for Objectivity.

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