Legal Lode: Uncommon Law

The Clean Air Act leaves no room for federal judges, on a case-by-case basis, to hear and decide lawsuits to abate carbon dioxide emissions from fossil fuel-fired power plants, according to a unanimous U.S. Supreme Court ruling.

In 2004, when the Bush administration was insisting that the Clean Air Act (CAA) gave no authority to control greenhouse gases, Connecticut and other states plus several conservation groups brought a public nuisance action against the five largest U.S. electric utility companies. The plaintiffs asked for an injunction that would limit carbon dioxide emissions from the defendants’ facilities. As they saw it, a clear line of Supreme Court precedents upheld the right of states to seek relief in federal court against out-of-state sources of pollution.

A federal district court ruled that applying public nuisance law to the problem of climate change presented political questions unsuitable for judicial determination, and dismissed the case. After an appeals court upheld the plaintiffs’ legal theory, thereby inviting climate nuisance cases into the courthouse, the utilities were successful in convincing the high court to hear the case.

These common law nuisance claims based on greenhouse gas emissions were different from the old interstate pollution cases, the high court opinion noted. For one thing, while the states’ nuisance suit was still under consideration in the appeals court, the Supreme Court ruled that EPA could regulate greenhouse gases as a pollutant under the CAA. [Massachusetts v. EPA, 549 U.S. 497 (2007)] For another, EPA had already adopted emission standards for some vehicles and had commenced rulemaking to set limits on new and existing power plants.

“The test for whether congressional legislation excludes . . . federal common law is simply whether the statute ‘speaks directly’ to the question at issue,” said Justice Ruth Bader Ginsburg, who wrote the opinion. “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. * * * [T]he Act ‘speaks directly’ to emissions of carbon dioxide from defendants’ power plants.”

The ruling is a victory not only for the utilities involved in the case, but for business interests generally. Trade groups representing automakers, oil companies, farmers, mining companies, chemical companies and manufacturers all filed briefs urging Supreme Court intervention, in some cases arguing that their members might face similar lawsuits. For the solid waste industry, the decision will likely squelch enthusiasm for public nuisance lawsuits against owners and operators of landfills and waste-to-energy facilities whose operations meet federal pollution control requirements.

What the decision leaves unanswered is whether the CAA preempts public nuisance claims under state law. However, for defendants who are confronted with such claims, the opinion provides ample and compelling arguments why state and federal courts are ill-suited to adjudicate these issues. The prospect of court-ordered emission standards, varying from state to state due to parochial nuisance law rules, is unsettling.

What if EPA decides, after completing its rulemaking proceeding, not to regulate as much as the states would have desired – that is, not enough to mitigate the nuisance they perceived? Federal courts would still not be able to hear claims based on federal common law after the agency, with its expertise, declined to act. All that matters is that Congress delegated to EPA the decision whether and how to regulate carbon dioxide emissions from power plants. Can states challenge how well EPA did its job? Yes. Can they target facility owners? No.

[American Electric Power v. Connecticut, No. 10-174, June 20, 2011]

Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].