Saving Preemption in the Clean Air Act: Climate Change, State Common Law, and Plaintiffs without a Remedy

By England, J. J. | Environmental Law, Summer 2013 | Go to article overview

Saving Preemption in the Clean Air Act: Climate Change, State Common Law, and Plaintiffs without a Remedy


England, J. J., Environmental Law


I.   INTRODUCTION II.  EXPLORING THE MAXIMUM REACH OF THE CLEAN AIR ACT      A. Structure of the Clean Air Act: Regulatory Programs         and Cooperative Federalism         1. Ambient Air Quality: Standards, Implementation of            Standards, and Preventing Deterioration of Ambient            Air Quality         2. Technology-Based Emission Standards for New Stationary            Sources            a. New Source Performance Standards            b. Prevention of Significant Deterioration New               Source Review and the Best Available Control               Technology Standard         3. Technology-Based Emission Standards for Existing Stationary            Sources         4. Technology-Based Standards under the Air Toxics Program         5. Regulation of Mobile Sources         6. Interstate, Regional, and International Regulatory            Authority Under the Act         7. Clean Air Act Remedies     B. Clean Air Act Authority to Regulate GHGs         1. Ambient Air Quality Approach to Regulating GHG Sources         2. Technology-Based Approach to Regulating Stationary GHG            Sources         3. Technology-Based Approach to Regulating Mobile GHG Sources         4. In Summary III. CLEAN AIR ACT PREEMPTION OF STATE COMMON LAW      A. Preemption as a Doctrine: Background, Historical         Underpinnings, and Purpose      B. Clean Water Act Precedent, a Bellwether for the Clean Air Act?      C. The Supreme Court's Evolving Preemption Doctrine      D. Applying the Court's Jurisprudence to the Clean Air Act         1. Express Preemption of Common Law Claims Against Mobile            Sources         2. Implied Preemption of Common Law Claims Against Stationary            Sources for Traditional Air Pollutants            a. Field Preemption            b. Other Implied Preemption Theories         3. Do Greenhouse Gas Pollutants Deserve Different Preemption            Treatment Due to Their Fundamentally Different Nature? IV.  RECENT CLEAN AIR ACT CASES AND MISAPPLICATION OF PREEMPTION      DOCTRINE      A. Setting the Stage: American Electric Power v. Connecticut         and the Difference Between Displacement and Preemption      B. North Carolina v. Tennessee Valley Authority      C. Recent Federal District Court Cases  V.  CONCLUSION 

I. INTRODUCTION

Overwhelming scientific consensus now exists that the climate is changing and that these changes are due in large part to anthropogenic releases of greenhouse gases (GHGs). (1) This changing climate is already causing damage to public and private property. The Native Village of Kivalina's dire situation vividly illustrates this point. In 1992, the Village of Kivalina voted to fully abandon its historical home on a barrier island north of the Arctic Circle due to the effects of climate change. (2) Both the General Accountability Office and the Army Corps of Engineers recognize that multiple Alaskan tribes, including Kivalina, face imminent relocation due to erosion caused by climate change. (3) As climate change becomes more severe, these effects are likely to be felt by other at-risk Americans as well. (4) And yet, the federal government currently has no plan or funds in place to assist communities faced with imminent destruction and with the cost of relocating. Most assistance is only available from federal agencies after a disaster, not before. (5) Moreover, the Clean Air Act (CAA) provides no means for an aggrieved party to seek compensatory damages from a polluter under any circumstances except through its savings clause. (6) Providing a means for those harmed by climate change to recover from their losses is a significant hole currently left unaddressed by Congress.

Traditionally, courts have filled such holes through the common law. (7) For example, it is foundational that courts have the ability to prevent harm from occurring through exercise of equitable powers and further ability to provide relief to aggrieved parties through their powers at law. …

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Saving Preemption in the Clean Air Act: Climate Change, State Common Law, and Plaintiffs without a Remedy
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