Clean Air Act Preemption of State Common Law: Greenhouse Gas Nuisance Claims After AEP v. Connecticut

In American Electric Power Co. v. Connecticut (AEP), the Supreme Court held that the Clean Air Act displaces federal common law tort claims related to greenhouse gas emissions. This decision effectively signaled the end of a series of public nuisance lawsuits invoking the federal common law as a means of redressing the effects of global warming. While nuisance claims based on state common law could serve as a replacement, their viability depends on an important threshold question: whether, or to what extent, such claims are preempted by the Clean Air Act. This is an issue the Supreme Court raised, but declined to reach, in AEP, and it remains one of the most important questions for the future of greenhouse gas litigation. 

This Note addresses that issue by arguing that the Clean Air Act preempts only one variety of state-law nuisance claims: those brought pursuant to the law of a state other than that where the relevant emissions source is located. Claims brought pursuant to the law of the source state, by contrast, should be able to proceed. As this Note demonstrates, this result is compelled by the structure, text, and purpose of the Clean Air Act, as well as by the Supreme Court’s 1987 decision in International Paper Co. v. Ouellette. At the same time, policy considerations generally counsel against using litigation as a means of regulating greenhouse gas emissions. For this reason, Congress should provide for preemption of all greenhouse-gas-related nuisance claims, regardless of which state’s law applies.

Persuasion Treaties

All treaties formalize promises made by national parties. Yet there is a fundamental difference between two kinds of treaty promise. This difference divides all treaties into two categories: treaties that govern the behavior of state parties and their agents fall in one category; treaties in the second category—those I call “persuasion” treaties—commit state parties to changing the behavior of non-state actors as well. The difference is important because the compliance problems for the two sets of treaties sharply diverge. Persuasion treaties merit our systematic attention because they are both theoretically and practically significant. In areas such as international environmental affairs, we simply cannot address critical global problems without them.

I use the term “persuasion” to communicate the observation that the success—and sometimes the very existence—of treaties in this class depends upon whether state parties can successfully enlist private sector support. The theory builds on recent scholarship that identifies the depth of regulatory interdependence between private and public sector actors. Business entities may choose either to cooperate with or to impede domestic regulatory regimes, and their decisions are not fully susceptible to legal control. The business choice is significant on the international stage: without a successful domestic regulatory regime, a state will not be able to keep corresponding international commitments. Moreover, many states do not commit to treaties they cannot implement or enforce. Thus, persuasion treaty regimes must attract the support of relevant business entities, either ex ante (to secure international agreement) or ex post (to achieve results).

The Forgotten Foundations of Hart and Sachs

The set of teaching materials known as The Legal Process continues to exert tremendous influence over mainstream public-law scholarship. Developed by Harvard Law Professors Henry M. Hart, Jr. and Albert M. Sacks in the late 1950s, those materials formed the cornerstone of the legal education of generations of lawyers, judges, and legal scholars. In part for that reason, the methods of legal interpretation and institutional analysis they articulated arguably still constitute the reigning paradigm of scholarship in the areas of statutory interpretation, federal courts, and administrative law. 

Despite their pervasive influence, however, the philosophical and jurisprudential foundations of The Legal Process are poorly understood. The standard historical account of the text denies any such foundations exist, characterizing it instead as an effort by its editors to respond to the skeptical threat of Legal Realism by advancing an “instrumentalist” or “neutral” theory of law that denied the need for, or value of, any deeper philosophical justification.

Though originally offered as a critique of the approach embodied in the teaching
materials, that account has been accepted even by those working within the Legal Process framework. That acceptance is surprising and troubling, because the standard historical account is deeply mistaken. In the first chapter of The Legal Process, the editors consciously advance controversial positions on the nature of morality, law, and legal knowledge. And if one looks carefully at those positions and the sources the editors rely on in staking them out, one can see that they were trying to construct a model of legal practice and scholarship based on the metaphysical and epistemological doctrines of one strand of philosophical pragmatism. Understanding such philosophical commitments not only enables us to better explain how Hart and Sacks took themselves to be responding to Legal Realism, but also forces us to consider how more recent efforts to ground legal practice fare in comparison.