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.
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.