On Monday the Supreme Court will hear oral argument in Suncor Energy v. Boulder County.
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Court → hear → County
My amicus brief in Suncor has received a decent amount of attention--but not all of it favorable.
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all → receive → it
Perhaps because I have been critical of much climate regulation and litigation, some were surprised that I believe Boulder County has the better of the preemption arguments here.
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County → believe → arguments
Michael Buschbacher, Managing Partner of Boyden Gray PLLC, is among those who think I have erred.
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I → think → those
Indeed, he thinks that my work actually supports the other side.
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work → think → side
I am unconvinced, and will reply in a follow-up post.
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I → reply → post
For now, here is what Buschbacher has to say.
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has → say → what
*
Prof. Adler Filed His Suncor Amicus Brief in Support of the Wrong Party
Michael Buschbacher
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Adler → file → Buschbacher
The occasion for this guest post is Prof. Adler's recent amicus brief submitted to the U.S. Supreme Court in Suncor v. Boulder County, set to be argued next month.[1]
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occasion → submit → County
By some estimates, the litigation campaign of which Suncor is part asserts some $28 trillion in total putative damages against a select group of energy companies—nearly an entire year of American GDP.
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Suncor → assert → GDP
The central question in Suncor is whether states and municipalities can apply their own law to regulate the greenhouse-gas emissions of fuel producers and users, not just for emissions within their own borders, but also for emissions anywhere in the world.
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states → apply → world
If that sounds a bit out there, that's because it is.
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it → sound → ?
So far, even some of the hand-picked state courts that have heard these claims have been slow to bite.
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that → pick → claims
For example, the Maryland Supreme Court earlier this year rejected similar arguments by the City of Baltimore, concluding that its claims about climate change were all preempted by federal law.
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claims → reject → law
Even the pro-climate litigation dissents in that case agreed that Maryland state law could not reach worldwide emissions directly.
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law → agree → emissions
Several other state courts have reached similar conclusions.
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courts → reach → conclusions
Prof. Adler's brief falls to the "left" of these decisions.
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brief → fall → decisions
But while his brief is offered in support of Boulder County, it also stops well short of the plaintiffs' position that one state or municipality can apply its own law to the rest of the world.
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state → offer → world
Although Prof. Adler opens with broad strokes—"Nothing in federal law, let alone the Constitution, preempts state-law claims seeking relief from injuries allegedly caused or exacerbated by petitioners' conduct," Adler Br. at 2—he later adds a very important caveat: perhaps only the law of the source state (that is, the jurisdiction where the emissions took place) can apply, and everything else is precluded.
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everything → open → place
"No home cooking," as he's put it elsewhere.
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he → put → it
There are several points in the brief where I think Prof. Adler errs or leaves key information out, but it's the no-home-cooking caveat that I want to focus on.
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I → be → that
In my view, the reading of the Clean Air Act he advocates should require him to take the petitioners' side or, at least, to file on behalf of neither party.
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he → advocate → party
As I'll explain below, Prof. Adler comes out on the plaintiffs' side here only by misdescribing (or misapprehending) the case that Boulder County has actually pled.
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County → explain → that
As Prof. Adler points out, state power over in-state pollution was historically very broad and remains broad today.
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power → point → pollution
What happens in Vegas (or anywhere else) doesn't necessarily stay there.
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happens → happen → Vegas
So, although in-state pollution can be governed by state law, interstate pollution—that is, pollution that originates in one jurisdiction and ends up having an alleged effect in another—was exclusively controlled by federal law from time immemorial.
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that → govern → time
As my colleague Jared Kelson and I explain in our amicus brief for 74 members of the House, application of this principle to interstate air pollution goes back at least to Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907).
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application → explain → Co.
Originally, the federal law in question was federal common law—or "general law," as it was often called, in contrast with specific local law.
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it → call → law
Erie Railroad Company v. Tompkins did not abrogate this body of law since rules dealing "with air and water in their ambient or interstate aspects," Illinois v. City of Milwaukee, 406 U.S. 91, 103 (1972), are "matters essentially of federal character," United States v. Standard Oil Co. of Cal., 332 U.S. 301, 307 (1947).
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Illinois → abrogate → .
However, the governing federal law changed in the 1970s, when Congress enacted the core environmental regulatory statutes we still have today: the Clean Air Act, the Clean Water Act, etc.
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we → govern → statutes
These statutes not only displaced federal common law, they also significantly federalized pollution policy, albeit in a novel way.
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they → displace → way
Rather than set uniform national command-and-control regulations as the default rule, the Clean Air Act and Clean Water Act mostly imposed a regime somewhat misleadingly described as "cooperative federalism."
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Act → set → federalism
Basically, Congress makes an offer the states can't refuse, using funding strings and sanctions to pressure them to regulate stringently enough to meet federal pollution-control targets set by EPA.
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states → make → EPA
Prof. Adler spins all this as Congress "preserving" a large amount of state discretion.
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Congress → spin → discretion
That's a rosy version of the history as to traditional areas of state territorial sovereignty—the Clean Air Act in particular drove much American industry overseas contrary to state wishes—but in many areas Congress did at least leave states room to choose how to reduce in-state pollution.
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Congress → drive → pollution
As Prof. Adler acknowledges, there are some exceptions where Congress took away even traditional in-state regulatory authority when doing so was necessary to avoid a patchwork of inconsistent state regulations over, e.g., motor vehicle emissions.
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doing → acknowledge → emissions
But he's right that, generally, Congress did not disturb the pre-existing balance of federal and state power over emissions regulation.
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Congress → disturb → regulation
The problem for Boulder County is that under that pre-existing balance, states had no authority to apply their own law to out-of-state air emissions, which had always been governed by federal common law.
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which → have → law
That cuts strongly against Boulder County, since nothing in the Clean Air Act purports to give states any new power to impose their own specific state law on emissions that originate outside their borders, much less authorizes them to do so with the "exceedingly clear language" required if Congress "wishes to significantly alter the balance between federal and state power."
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Congress → cut → power
Indeed, the various Clean Air Act provisions that expressly address interstate and international air emissions concerns all presuppose the continued existence of traditional territorial limits on governmental authority.
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that → address → authority
…and 47 more, not listed.
The Aporia
