To our minds, preemption means preventing the hijacking of environmental statutes either to force Congress's hand to adopt cap-and-trade legislation or to achieve backdoor greenhouse gas regulations. These are statutes, of course, that were never designed nor intended to reduce greenhouse gases. Comprehensive preemption must also address state climate programs as well greenhouse gas "nuisance" lawsuits that benefit the green tort bar at the expense of jobs and consumers.
One important area of preemption is the Clean Air Act (CAA). The CAA was not designed to regulate greenhouse gases. But don't take our word for it; ask Rep. John Dingell (D-Mich.). "The Clean Air Act,"
he said on December 7, "was not designed to regulate greenhouse gases, as the then-Chairman of the House Energy and Commerce Committee I know what was intended when we wrote the legislation." Sen. Lisa Murkowski (R-Alaska) has launched an admirable effort to overturn EPA's endangerment finding under the CAA. This is a badly needed first step.
Sen. Murkowski's effort has sparked a broader discussion about extending preemption to other areas. Take the Clean Water Act (CWA) as Exhibit A. The Center for Biological Diversity (CBD) sued EPA for the agency's failure to address acidification caused by greenhouse gas emissions. And on March 10, the CBD got what it wanted: a legal settlement forcing EPA to begin a process that could lead to greenhouse gas controls under the CWA.
According to Inside EPA, "Activists hope that by listing waters as impaired due to CO2 emissions, it will provide additional leverage to regulate the GHG under the Clean Water Act." A "CBD source" also "hopes the guidance will ultimately lead" to the establishment of a Total Maximum Daily Load, or TMDL, requirements that will "require reductions in air emissions of CO2 -- a novel use of the water act to cut CO2 emissions."
The National Environmental Policy Act (NEPA) is another climate battleground for environmental activists. Last week, in response to a NEPA lawsuit filed by, among others, the Montana Environmental Information Center, a federal judge ordered the Bureau of Land Management (BLM) to suspend 61 oil and gas leases in Montana. The judge agreed with the plaintiffs that BLM must consider the climate change impacts from those oil and gas leases. "We view this as a very big deal, if a modest first step, in the BLM addressing climate change in oil and gas development," plaintiffs' attorney
Erik Schlenker-Goodrich told the AP. A similar lawsuit challenging 70,000 acres of federal lands leased in New Mexico is pending. These developments obviously do not bode well for job creation or energy security.
It gets worse. In 2004, several states-including California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin-filed a federal nuisance lawsuit against the nation's largest coal-fired power plants. Of course the states demonstrated no specific link connecting the plants' emissions to the harms documented within their borders. As they put it, "just as Defendants' pollution contributes to these harms, so every incremental decrease in greenhouse gas emissions will reduce these injuries."
Last September, a two-judge panel (Judge Sonia Sotomayor was elevated to the Supreme Court and thus did not participate) of the US Second Circuit Court of Appeals agreed with the states. In
Connecticut v. AEP, the court concluded that the states have a "legitimate interest in protecting their natural resources" and the "health of their citizens" and that the "redress sought by the plaintiffs would reduce the harm alleged."
Of course, if Waxman-Markey, a national cap-and-trade program requiring significant emission reductions from these and other plants, were implemented tomorrow, it would avoid about .05 degrees Celsius of warming by 2050 - in other words, the states are out of luck. But that's not the point. These states want to use federal nuisance law for a purpose it wasn't designed for: to regulate and eventually destroy energy production they don't like. The defendants in the case put it well: "Plaintiffs cannot short-circuit the democratic process and ask federal courts to create emissions standards that they are unable to persuade Congress to enact."
And yet, they just might. In January, the Second Circuit denied rehearing
en banc of its
Connecticut decision. According to the law firm Troutman Sanders, "the decision could open the flood gates on further climate change tort lawsuits against virtually any significant greenhouse gas emitter." The decision came one week after the 5th Circuit announced it will reconsider its October ruling,
Comer v. Murphy Oil, which had also allowed suits against large sources of greenhouse gases for damage caused by climate change. Another such tort case,
Native Village of Kivalina v. Exxon Mobil Corp., is pending in the Ninth Circuit.
"It may happen," the Second Circuit ruled, "that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance.
But until that comes to pass,
federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance by greenhouse gases." [Emphasis added]
With all due respect to the Second Circuit, this is a view-to quote former House Speaker John McCormack-we hold in "minimum high regard." We hope the specter of federal courts setting climate policy will push preemption-comprehensive preemption, that is-to the heart of the energy and climate change debate.
