The Supreme Court held today that a coalition of states, New York City and private land trusts could not use common-law nuisance suits to cap the emission of carbon dioxide by various power companies and the federal Tennessee Valley Authority. Such suits, the Court held, were preempted by the authority given to the federal government to regulate greenhouse gasses under the federal Clean Air Act and the Environmental Protection Agency's rulemaking processes.
The Court was unanimous in result, with Justice Ginsburg writing for the majority and Justices Alito and Thomas in a separate concurrence (with no affect on the outcome). (Justice Sotomayor recused herself after having participated in the case on the Second Circuit at an earlier stage.) The Court did split 4-4 on whether the plaintiffs had standing to pursue this matter at all, and a tie on the Court means that the prevailing party below (the plaintiffs) prevails.
Justice Ginsburg for the Court, explains why federal law displaces state action:
In the cases on which the plaintiffs heavily rely, States were permitted to sue to challenge activity harmful to their citizens’ health and welfare. We have not yet decided whether private citizens (here, the land trusts) or political subdivisions (New York City) of a State may invoke the federal common law of nuisance to abate out-of-state pollution. Nor have we ever held that a State may sue to abate any and all manner of pollution originating outside its borders.... We need not address the parties’ dispute in this regard. For it is an academic question whether, in the absence of the Clean Air Act and the EPA actions the Act authorizes, the plaintiffs could state a federal common law claim for curtailment of greenhouse gas emissions because of their contribution to global warming. Any such claim would be displaced by the federal legislation authorizing EPA to regulate carbon-dioxide emissions.
“[W]hen Congress addresses a question previously governed by a decision rested on federal common law,” the Court has explained, “the need for such an unusual exercise of law-making by federal courts disappears.” Legislative displacement of federal common law does not require the “same sort of evidence of a clear and manifest [congressional] purpose” demanded for preemption of state law.“ [D]ue regard for the presuppositions of our embracing federal system … as a promoter of democracy" does not enter the calculus, for it is primarily the office of Congress, not the federal courts, to prescribe national policy in areas of special federal interest. The test for whether congressional legislation excludes the declaration of federal common law is simply whether the statute “speak[s] directly to [the] question” at issue.
We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants. Massachusetts v EPA made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act. And we think it equally plain that the Act “speaks directly” to emissions of carbon dioxide from the defendants’ plants.
And that the EPA hasn't actually moved against defendants' greenhouse gas emissions yet isn't enough to change this:
If the plaintiffs in this case are dissatisfied with the outcome of EPA’s forthcoming rulemaking, their recourse under federal law is to seek Court of Appeals review, and, ultimately, to petition for certiorari in this Court.
Indeed, this prescribed order of decisionmaking—the first decider under the Act is the expert administrative agency, the second, federal judges—is yet another reason to resist setting emissions standards by judicial decree under federal tort law. The appropriate amount of regulation in any particular greenhouse gas-producing sector cannot be prescribed in a vacuum: as with other questions of national or international policy, informed assessment of competing interests is required. Along with the environmental benefit potentially achievable, our Nation’s energy needs and the possibility of economic disruption must weigh in the balance.
The Clean Air Act entrusts such complex balancing to EPA in the first instance, in combination with state regulators.
If the government is going to tackle global warming, it starts with the EPA and Congress -- not the Courts.