Policing Federal Supremacy: Preemption and Common Law Damage Claims as a Ceiling Regulatory Floor (original) (raw)

Utility Air Regulatory Group v. EPA: A Shot Across the Bow of the Administrative State

Duke Journal of Constitutional Law & Public Policy, 2014

In Utility Air Regulatory Group v. Environmental Protection Agency (UARG), decided in June of this year, the Supreme Court reached a split decision on a pressing but arcane issue related to the scope of the Environmental Protection Agency’s (EPA) authority to regulate greenhouse gases. From the bench, Justice Scalia described his opinion for a shifting majority of the Court as, in essence, a win for the agency: “‘EPA is getting almost everything it wanted in this case,’” he said. “‘[The agency] sought to regulate sources it said were responsible for 86 percent of all the greenhouse gases emitted from stationary sources nationwide. Under our holdings, [it] will be able to regulate sources responsible for 83 percent of those emissions.’” Some in the press accepted Scalia’s characterization, while others emphasized the partial nature of the victory. Sample headlines include Justices Uphold Emission Limits on Big Industry and Supreme Court Upholds Rules Curbing Greenhouse Gases from Pow...

Major Federal Environmental Decisions 2012

Pennsylvania Bar Institute Environmental Law Forum 2012, 2012

This paper summarizes major developments in environmental cases during the 2011-12 term, including under the Clean Air Act, the Clean Water Act, the Endangered Species Act, and the National Environmental Policy Act. Clean Air Act Common Law Cases for Climate Change Dismissed On June 20, 2011, the U.S. Supreme Court decided the closely watched case of American Electric Power Co. v. Connecticut ("AEP"), No. 10-170 in which several states, the City of New York, and several land trust organizations sued the nation's five largest fossil-fuel-burning electric utility companies to reduce their emissions of greenhouse gases, arguing that these emissions constitute a public nuisance under federal common law. The Supreme Court rejected this claim, reasoning that the Clean Air Act, when coupled with the Environmental Protection Agency's (EPA) authority and the actions EPA has taken in the last two years to regulate greenhouse gas emissions, displaces federal common law nuisance causes of action for injunctive action addressing climate change.

Expanding the Federal Common Law?: From Nomos & Physis and Beyond

2012

The Supreme Court’s recent decision in AEP v. Connecticut, as well as a prominent Seventh Circuit case last year, reflect an emerging effort to test the federal judiciary’s willingness to expand the federal common law to include claims for interstate pollution. There is an assumption, including by the Supreme Court, that a federal common law for public nuisance exists, and that the pressing question is whether to expand that common law. Building on existing scholarship and a more thorough review of the cases than has occurred in the past, this article attempts to prompt a searching dialogue about the jurisprudential basis for assuming that the Court has decided that a federal common law claim for public nuisance exists and for promoting an expanded federal common law. The Article illustrates that the assumption about the persistence of a federal common law for interstate disputes buries history. It briefly explores the evolution of the jurisprudential basis for the common law, and h...

Environmental Law

1996

The Tenth Circuit handed down several important decisions in the field of environmental law between September 1994 and September 1995.' This Survey focuses on two substantial decisions on environmental law issues. The first case, United States v. Colorado & Eastern Railroad, 2 discussed the complex, and as yet unsettled, distinction between cost recovery and contribution as governed by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980.? Secondly, Laguna Gatuna, Inc. v. Browner,' a case of first impression in the Tenth Circuit, treated the issue of pre-enforcement judicial review of a Clean Water Act (CWA) 5 compliance order issued by the Environmental Protection Agency (EPA). 6 Part I of this Survey discusses the Colorado & Eastern decision in light of the statutory and case law that preceded it. Part II examines Laguna Gatuna. Finally, this Survey argues that these two decisions have affected environmental law inconsistently, even though both case opinions attempt to follow congressional intent. On the one hand, the Tenth Circuit eroded the structure of CERCLA with its holding in Colorado & Eastern, and created substantial legal uncertainty in future cost recovery and contribution actions. On the other hand, the Tenth Circuit's holding in Laguna Gatuna provides needed legal certainty by barring pre-enforcement judicial review of EPA compliance orders under the CWA. 1. Other Tenth Circuit decisions in the survey period relating to environmental law but not discussed include: Leadville Corp. v. United States Fidelity & Guar. Co., 55 F.3d 537 (10th Cir. 1995) (affirming dismissal of an indemnity claim for failure to abide by notice provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) liability insurance policy); Quaker State Minit-Lube, Inc. v. Fireman's Fund Ins. Co., 52 F.3d 1522 (10th Cir. 1995) (interpreting a pollution exclusion clause); Pueblo of Scandia v. United States, 50 F.3d 856 (10th Cir. 1995) (reversing and remanding summary judgment against a Native American claim for bad faith failure to preserve Forest Service land used for cultural and religious purposes as required by the National Historic Preservation Act); Red Panther Chem. Co. v. Insurance Co. of N. Am., 43 F.3d 514 (10th Cir. 1994) (resolving an interpretation dispute regarding an insurance policy excluding pollution); Brever v. Rockwell Int'l Corp., 40 F.3d 1119 (10th Cir. 1994) (reversing dismissal of a federal whistleblowing claim stemming from the FBI investigation of the Rocky Flats Superfund site in Colorado). 2. 50 F.3d 1530 (10th Cir. 1995). 3. 42 U.

Major Federal Environmental Decisions, 2013

Major Federal Environmental Decisions, in 6 ENVIRONMENTAL LAW FORUM (Pennsylvania Bar Institute 2013), 2013

This paper summarizes major developments in environmental cases during the 2012-13 term, during which the U.S. Supreme Court has had a fairly active environmental law docket involving recurrent issues of what constitutes a compensable taking under the 5 th Amendment and a discharge under the Clean Water Act. It also has before it a few other cases that could have an impact on environmental law and litigation in Pennsylvania and beyond. This overview concludes with a recap of the Sebelius case-decided after last year's Forum-which while concerning the federal Health Care Act could affect the implementation of federal environmental laws.