At the same time, some environmentalists have returned to the courts to treat global climate change as a nuisance. They've had some victories and also had some setbacks. The U.S. Supreme Court decided in December to review one of the environmentalist victories and on April 19 of this year, it will hear Connecticut v. American Electric Power. In that case, the A2nd Circuit held that states and private environmental organizations could sue polluters—again under a federal common-law nuisance theory. The Obama dministration (which represents the interests of the Tennessee Valley Authority, a major federally run power producer, in the suit) has urged the court to dismiss it, arguing that the new Clean Air Act regulations (which were not around when the 2nd Circuit issued its decision) constitute a comprehensive regulatory scheme that displaces federal common law. A win on this ground would heighten EPA's role over GHGs while also ensuring more predictable results than what might come from various court rulings in different nuisance lawsuits around the country.
Over on Capitol Hill, however, lawmakers are now busily pulling the rug out from under the EPA. The list of regulations that Obama's lawyers argued have displaced federal common law mirrors the list of regulations specifically rescinded in the Upton/Inhofe draft bill. If that bill becomes law, it will create a vacuum of regulation over GHGs which the federal common law could rush back in to fill. Even if the bill goes nowhere, work on it certainly undermines the impression that the regulatory scheme comprehensively displaces federal common law, since that scheme is apparently so fragile.
To be sure, Barrasso's bill (unlike the Upton/Inhofe draft) attacks the litigation strategy directly. It provides that "[n]o cause of action, whether based on common law or civil tort (including nuisance) or any other legal or equitable theory, may be brought or maintained, and no liability, money damages, or injunctive relief arising from such an action may be imposed" for global climate change. This provision would appear to wipe out all climate change-related lawsuits, ever, whether they are premised on federal or state common law, eliminating lawsuits like AEP v. Connecticut as well as all state lawsuits. This wholesale erasure of future litigation undoubtedly pleases the anti-lawyer crowd, but it also completely undermines any commitment to the states being allowed to experiment with new laws and address climate change through their own legal systems. Of course, fealty to an abstract concept such as federalism often disappears in the face of a policy (such as same-sex marriage) that an advocate of federalism may hate more than an imbalance in state/federal relations.
The argument that the new Clean Air Act regulations have displaced federal common law is but one in the arsenal that the Obama administration and the private petitioners have advanced in court to kill the AEP case. Nevertheless, the displacement argument will likely have appeal to Justice Anthony Kennedy, a key member of the majority in the Massachusetts v. EPA case, because it means that someone's regulating GHGs. If Kennedy is not persuaded to dismiss AEP, then the lower court decision will likely stand. (The court will have only eight members participating; Justice Sotomayor was a member of the 2nd Circuit panel in the case below and is therefore recused. An even split of the court affirms the pro-environmentalist decision below.) Upton and Inhofe are clear that they want the federal courts to butt out of the global climate-change debate; they filed an amicus brief in AEP telling the court just that. Short of working on a true comprehensive regulatory scheme for GHGs such as a cap-and-trade system or carbon tax, however, congressional Republicans would be better off leaving EPA's rules alone for now if they want to avoid what may be an even more invasive fate: regulation by federal injunction.