Preemption at Midfield: Why the Current Generation of State-Law-Based Climate Change Litigation Violates the Supremacy Clause

By Schiff, Damien M.; Beard, Paul, II | Environmental Law, Fall 2019 | Go to article overview

Preemption at Midfield: Why the Current Generation of State-Law-Based Climate Change Litigation Violates the Supremacy Clause


Schiff, Damien M., Beard, Paul, II, Environmental Law


  I. INTRODUCTION                                                 854  II. HISTORIC AND CURRENT EFFORTS TO ADDRESS CLIMATE CHANGE      THROUGH LITIGATION                                           857 III. PREEMPTION PRINCIPLES BAR STATE-LAW-BASED CLIMATE      SUITS                                                        864      A. Overview of Supremacy Clause Jurisprudence                864      B. Ascertaining the Preemptive Effect of the Clean Air Act         through Clean Water Act Jurisprudence--International         Paper Co. v. Ouellette                                    866      C. The Lower Courts' Application of Ouellette to the         Clean Air Act                                             871      D. Under the Rule of Ouellette, the State-Law-Based Climate         Suits Are Preempted                                       874  IV. PREEMPTION OF STATE-LAW-BASED CLIMATE SUITS      CONSTITUTES SOUND POLICY                                     880   V. CONCLUSION                                                   883 

I. INTRODUCTION

For many, global warming is the preeminent environmental issue of our time. (1) The debate over climate change--in particular, its causes and the efforts that should be undertaken to combat its effects--has roiled the political branches of government for decades. (2) Yet not much has been accomplished by Congress or administrative agencies. (3) For that reason, climate change advocates (4) have over the last decade or so shifted their efforts to the judiciary to obtain what they believe is the needed response to climate change.

In this Article, we argue that the Constitution's Supremacy Clause (5) precludes this latest effort. Specifically, we contend that the dozen or so lawsuits that have been filed over the last few years in courts throughout the country by various state and local governments and environmental organizations against the nation's top fossil fuel producers and marketers, aimed at remedying the alleged localized harms of climate change, are preempted by the Clean Air Act. (6)

Our analysis begins with a review of green-advocacy efforts over the last twenty years to address climate change through litigation. These "first generation" lawsuits focused, with limited success, on the federal Clean Air Act and federal common law theories. (7) This period ended with the United States Supreme Court's ruling in American Electric Power Co. v. Connecticut (6) (American Electric Power) that the Clean Air Act displaces at least some federal common law causes of action directed against greenhouse gas emissions. (9) After that decision, climate change advocates looked to state law. The ensuing "second generation" of lawsuits has focused on state-law-based claims against energy companies. The recent explosion of such suits in California exemplifies this updated litigation strategy directed toward responding to climate change. (10)

Following an overview of this ongoing litigation, our Article proceeds to a discussion of preemption principles, then addresses the United States Supreme Court's application of those principles to ascertain the preemptive scope of the Federal Water Pollution Control Act, (11) more commonly known as the Clean Water Act. Following that, the Article explains why the Supreme Court's rule governing the preemptive scope of the Clean Water Act should apply to the Clean Air Act (an issue that the High Court has yet to address), and in turn shows why, given that rule, the state-law-based climate cases are preempted. Although our Article acknowledges that the Clean Air Act may not preempt all forms of state-law-based climate change claims, (12) it concludes that any such non-preempted causes of action would fail to afford any meaningful remedy for the existing state-law-based plaintiffs. The Article ends with a discussion of several reasons as to why preemption of the state-law-based climate suits is not just the right legal outcome, but is good policy too. …

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