Congressional Republicans (and some Democrats) want to stop the EPA from regulating greenhouse gas emissions so much, that, over the past two weeks, they've introduced several new bills that would strip EPA of authority to regulate these precursors to global climate change. What they don't seem to have considered is that in their newfound determination to hamstring EPA, they may well open the door to federal regulation of GHGs from a source that conservatives will come to dislike even more than EPA: the federal courts.
The new congressional bills take several different forms. One, introduced by West Virginia Sen. Jay Rockefeller, would suspend EPA's authority to regulate GHGs for two years. The most wide-ranging, introduced by Wyoming Sen. John Barrasso, proposes to strip EPA of all authority over GHGs, rescind several regulations that EPA has already promulgated, and declare that other laws (such as the Endangered Species Act) cannot be used to regulate climate change. The most recent, a draft bill announced by Michigan Rep. Fred Upton and Oklahoma Sen. James Inhofe and named the "Energy Tax Prevention Act of 2011," takes a middle course and would rescind certain EPA regulations and remove EPA authority to regulate GHGs but preserve certain new rules for cars. (Upton's House committee held hearings on this bill on Wednesday, and Sen. Inhofe testified.)
These measures may put EPA's opponents in a worse predicament in the long run. Before the modern era of national environmental regulatory laws, courts were often the institutions addressing environmental problems when legislatures wouldn't respond. Lawsuits against nuisances—some dating back to the 1600s and earlier—were among the first legal responses to what were then called "noisome stenches" and today are called environmental problems. Nuisance suits have been used to attack everything from smelly pigsties to giant factories. Although most of these lawsuits proceeded in the state courts, federal courts got involved as well, especially in cases of interstate nuisances. In the early 20th century, the state of Georgia brought a successful nuisance claim in the U.S. Supreme Court against the Tennessee Copper Company, which operated a polluting smelter in Ducktown, Tenn., just north of the Georgia-Tennessee border. The environmental devastation produced was dramatic; the hillsides around the plant still bear scars from the pollution over a century after the court's decision. For these interstate nuisances, the court applied judge-made federal common law. Authorities from state and international law offered guidance for the content of the rule to apply, but otherwise the courts chiefly relied on their own sound judgment to decide the shape of the nuisance rules. And in formulating a remedy for the nuisance, courts imposed some wide-ranging injunctions. In Georgia v. Tennessee Copper Co., for example, the Supreme Court entered a detailed ruling specifying emission levels for the factory for several years.
Two developments altered this approach to environmental disputes: First, in a series of (mostly non-environmental) cases, the Supreme Court withdrew federal courts from the business of developing separate bodies of federal common law except in unusual circumstances. Second, starting in 1970, Congress entered the environmental arena with a vengeance, enacting statutes like the Clean Air Act, the Clean Water Act, and the basic hazardous waste laws within a few short years. With these detailed statutes in place and agencies like the EPA dominating pollution control, the role played by federal courts in environmental regulation diminished.
Indeed, some doubted whether common-law nuisance lawsuits could even be brought after the enactment of these detailed federal statutes. Even though the Clean Air Act and the Clean Water Act contain provisions that arguably preserve preexisting common law actions, the Supreme Court made clear that these new statutes displaced the need for federal court involvement where Congress "has occupied the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency." (Suits based on state nuisance law still survive after the enactment of the federal pollution laws.)
But in recent years, the challenges posed by global climate change have sent environmental advocates scurrying to the courts, Congress, and federal agencies in efforts to address the problem of GHG emissions. In 2007, the Supreme Court held in Massachusetts v. EPA that the EPA not only had the authority to regulate GHGs as pollutants under the Clean Air Act but also had the obligation to do so if it concluded that these pollutants would harm human health and the environment. Since the EPA had publicly endorsed the view that GHGs would lead to global climate change, regulations of some kind were a near-certainty. George W. Bush's EPA dragged its feet in responding to this mandate, only issuing a proposed rule in the last few months of his administration. Since then, the Obama administration has issued several new rules and findings that harness the Clean Air Act to address GHG emissions. Although the Clean Air Act may be an inefficient way to deal with the complexity of climate change, and although these regulations do not constitute a comprehensive regulatory response to the problem of GHGs, these new rules were certainly a significant start.