No good deed goes unpunished when it comes to the United States Environmental Protection Agency’s (“U.S. EPA”) efforts to regulate climate change.  Rather, U.S. EPA’s authority to regulate climate change (e.g. greenhouse gas emissions or “GHGs”) is currently being challenged by some States, while other States are simultaneously threatening to sue U.S. EPA for failing to act to address climate change.

Since the United States Supreme Court’s decision in Massachusetts v. EPA, 127 S. Ct. 1438 (2007) holding that U.S. EPA could regulate GHG emissions under the Clean Air Act, various States and industrial groups have challenged U.S. EPA’s subsequent attempts to regulate GHGs.  Most recently, on April 19, 2013, the Attorney General of Texas supported by 11 other state attorney generals, filed a petition for writ of certiorari to the United States Supreme Court claiming that U.S. EPA overreached its authority by regulating GHGs, and requested that the Court overrule its decision in Massachusetts v. EPA on the basis of the “absurd” and detrimental economic consequences of regulating GHGs under the Clean Air Act.

Ironically, on April 17, 2013, 10 different states, the District of Columbia and the City of New York jointly sent U.S. EPA a Clean Air Act Notice of Intent to Sue for U.S. EPA’s failure to promulgate rules on new power plant emissions by the regulatory deadline (the “Notice”).  Under the Clean Air Act, U.S. EPA was required to finalize the New Source Performance Standards for fossil fuel power plants and petroleum refineries by April 13, 2013.  These are contentious standards that have been the subject of millions of public comments, as they effectively bar the construction of new coal fired power plants without prohibitively expensive control technologies.  The States’ intention in filing the Notice is to force U.S. EPA to issue/finalize these rules through court order, or through an agreement with U.S. EPA.

Thus, U.S. EPA now finds itself fighting a two fronted war both trying to defend its action and inaction at the same time.  Given these conflicting positions, U.S. EPA would be justified in feeling that it just can’t win when it comes to climate change, and it appears that the more aggressive states may be the ones that start to drive change in this arena.

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Categories: Climate Change | Supreme Court

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With an election brewing, plaintiffs trying to impact climate change may find themselves lobbying politicians rather than running to the nearest courtroom.  On September 21, 2012, the Ninth Circuit further slammed the door on the ability for such claims to succeed in federal court.  Specifically, the Court held that federal common law public nuisance claims are unavailable to parties seeking damages or injunctive relief based on global warming.  Native Village of Kivalina v. ExxonMobil Corp., 2012 U.S. App. LEXIS 19870 (9th Cir. 2012).  In this case, the Native Village of Kivalina and the City of Kivalina filed federal common law public nuisance claims (among others) against twenty-two oil, energy, and utility companies alleging that greenhouse gas emissions caused by Defendants have resulted in global warming impacts to the Village and City.  Kivalina appealed the case to the Ninth Circuit following the district court’s dismissal of its claims for lack of subject matter jurisdiction.

The Ninth Circuit affirmed the district court’s holding and dismissed Kivalina’s federal common law public nuisance claims, explaining that “claims can be brought under federal common law for public nuisance only when courts are “compelled to consider federal questions which cannot be answered by federal statutes alone.”  In other words, federal common law cannot apply when congressional legislation directly speaks to an issue.  To make this determination, the Court relied on the recent Supreme Court decision in Connecticut v. Am. Elec. Power Co., Inc., 131 S. Ct. 2527 (2011) in which the Supreme Court concluded that the Clean Air Act provides a means to seek limitations on greenhouse gases, and thus, displaces any federal common law right to seek abatement of greenhouse gases.  While AEP focused on the abatement of emissions (i.e. injunctive relief), the Ninth Circuit’s holding significantly broadened AEP by applying this analysis equally to claims for damages.

Accordingly, the combination of Kivalina and AEP seems to bar future federal public nuisance claims for damages or injunctive relief based on global warming, and is likely to be a significant deterrent if not a complete bar to such claims being filed in federal court.  Significantly though,  the Ninth Circuit did not address Kivalina’s state claims, and thus, it is possible that  Kivalina will pursue those claims in state court.  State courts are likely to become the next battleground (in this action or in similar actions) to determine whether parties can assert similar public nuisance claims under state law, or if plaintiffs will need to wait for legislation to address climate change and forego any type of damage recovery. 

Heidi Goldstein and Devin Barry, Thompson Hine LLP


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