Emerging Clarity on Climate Change Law: EPA Empowered and State Common Law Remedies Enabled

Transcription

1 C O M M E N T S Emerging Clarity on Climate Change Law: EPA Empowered and State Common Law Remedies Enabled by Howard A. Learner Howard A. Learner is President and Executive Director of the Environmental Law & Policy Center. The emerging law of climate change is becoming clearer. The U.S. Supreme Court s series of climate change and other Clean Air Act (CAA) 1 decisions authorize the U. S. Environmental Protection Agency (EPA) to advance its standards-setting process, and provide general deference to EPA s implementation of the CAA and other statutory programs. The Court is sending a clear message to the U.S. Court of Appeals for the District of Columbia (D.C.) Circuit, which reviews most of EPA s final standards, and to other courts, to restrain judicial activism. Likewise, federal and state courts are opening the door for plaintiffs to assert state common law tort remedies. I. Introduction The Court s majority has made clear its solid support for the landmark Massachusetts v. EPA 2 decision authorizing EPA to regulate greenhouse gases. The partisan political attacks and the novel theories of the cottage industry of appellate attorneys representing certain polluting industries have not deterred the Court. The Court s recent decisions in EPA v. EME Homer City Generation (EME) 3 and Utility Air Regulatory Group v. EPA (UARG), 4 which strongly although not entirely uphold EPA s CAA implementation discretion, Author s Note: The Environmental Law & Policy Center is the Midwest s leading public interest environmental legal advocacy and eco-business innovation organization. The author is also an Adjunct Professor at the University of Michigan Law School and Northwestern University Law School, where he teaches seminars in energy and environmental law and climate change policy. He holds a J.D. from Harvard Law School (1980) and a B.A. from the University of Michigan (1976) U.S.C q, ELR Stat. CAA Massachusetts v. EPA, 549 U.S. 497, 37 ELR (2007). 3. EPA v. EME Homer City Generation (EME), 572 U.S. (2014), No (U.S. Apr. 29, 2014). 4. Utility Air Regulatory Grp. v. EPA (UARG), 573 U.S. (2014), No (U.S. June 23, 2014). should reduce confusion and bring much-needed increased certainty for both state policymakers and energy industry executives to move forward in making business decisions. At the same time, both federal and state courts are beginning to fill in the blanks left by the Court in its American Electric Power v. Connecticut (AEP) 5 decision, which held that the CAA displaces federal common law injunction actions brought by states and other plaintiffs seeking to limit carbon dioxide pollution from coal plants. AEP arguably left open the question of whether federal common law damages actions were similarly displaced. That door has now been closed by the Supreme Court s declining to review the U.S. Court of Appeals for the Ninth Circuit decision finding displacement in Native Village of Kivalina v. ExxonMobil Corp. (Kivalina). 6 On the other hand, AEP explicitly left open the door for state common law nuisance actions and remedies, stating: None of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand. 7 Indeed, the Court implied through dicta referencing Clean Water Act (CWA) 8 cases that the state common law actions could go forward. 9 Plaintiffs have stepped through this door and two recent decisions by the U.S. Court of Appeals for the Third Circuit 10 and the Iowa Supreme Court 11 have affirmed plaintiffs rights to bring state common law tort actions seeking damages and injunctions due to air pollution from a power plant and 5. American Elec. Power Co. v. Connecticut (AEP), 131 S. Ct. 2527, 41 ELR (2011). 6. Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 42 ELR (9th Cir. 2012), cert. denied, 133 S. Ct (2013). 7. See AEP, 131 S. Ct. at U.S.C , ELR Stat. FWPCA AEP, 131 S. Ct. at Bell v. Cheswick Generating Station, 734 F.3d 188, 43 ELR (3d Cir. 2013), cert. denied sub nom. GenOn Power Midwest, L.P. v. Bell, 134 S. Ct (2014). 11. Freeman v. Grain Processing Corp., No (Iowa June 13, 2014). 44 ELR ENVIRONMENTAL LAW REPORTER

2 a grain processing plant, respectively. The courts rejected the defendants arguments that the CAA, as interpreted by the Court in AEP, displaced or otherwise preempted state common law nuisance, trespass, and other tort claims for property damage and harms to human health. The pieces of the puzzle are now being assembled and the overall picture is becoming clearer for litigators, federal and state environmental regulatory agencies, businesses with many different and, indeed, often conflicting economic and environmental interests, environmental and public health advocates, and the broader public. This Article examines what the emerging picture now looks like. II. Analysis A. Reaffirmation of Massachusetts The Supreme Court has again reaffirmed its landmark Massachusetts decision. Message to critics: Stare decisis, game over, move on. In AEP, Justice Ruth Bader Ginsburg s opinion for the full Court provided stability and further legitimacy for the Massachusetts decision. Chief Justice John Roberts and Justice Antonin Scalia joined with the five Justices who formed the majority in Massachusetts in following stare decisis principles. While some members of the U.S. Congress continue the supercharged political debate on climate change solutions, the Court embraced stability, stating that: Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the [Clean Air Act]. And we think it equally plain that the Act speaks directly to emissions of carbon dioxide from the defendants [coal] plants. 12 In its June 2014 decision in UARG, the Court accepted Massachusetts as settled law even though it reversed EPA s Tailoring Rule, which adjusted the statutory threshold levels for requiring federal prevention of significant deterioration (PSD) air permits for certain sources under the CAA. The Court s majority clearly rejected Justice Samuel Alito s view (in his concurring and dissenting opinion joined by Justice Clarence Thomas) that Massachusetts was wrongly decided and that greenhouse gases should not be subject to EPA regulation under the CAA. 13 Justice Scalia s majority opinion states: We are not talking about extending EPA jurisdiction over millions of previously unregulated entities, but about moderately increasing the demands EPA (or a state permitting authority) can make of entities already subject to 12. AEP, 131 S. Ct. at 440 (citation omitted). 13. See UARG, 573 U.S. (2014), No (U.S. June 23, 2014), concurrence/dissent slip op. at 1 (Alito, J., concurring in part and dissenting in part). its regulation. And it is not yet clear that EPA s demands will be of a significantly different character from those traditionally associated with PSD review. In short, the record before us does not establish that the [best available control technology (BACT)] provision as written is incapable of being sensibly applied to greenhouse gases. 14 The Court held that EPA exceeded its statutory authority when it made a quantum leap in essentially taking a low threshold number written in the statute and then multiplying that number by a thousand through its Tailoring Rule in order to avoid impacts that the Agency believed were unintended by Congress. A majority also concluded, however, that EPA could permissibly find that sources already required to obtain permits for emissions of conventional pollutants so-called anyway sources must install the best available control technology for greenhouse gases. These anyway sources account for about 83% of the stationary source greenhouse gas emissions at issue, while the additional coverage provided by the Tailoring Rule in this respect amounted to only 3% more. 15 As a practical matter, therefore, EPA will still be able to target almost all of the emissions that might otherwise be subject to the BACT requirement, without creating additional permitting obligations for other sources. Massachusetts does not appear to be in play for at least seven members of the Court. Indeed, in UARG, the Court rejected certiorari petitions that essentially sought reexamination of Massachusetts, and, instead, granted certiorari only on one relatively narrow ground. The Court s opinion in UARG, in a footnote, reaffirms AEP as allowing EPA to regulate greenhouse gas pollution under CAA 111(d): We there held that the Act s authorization for EPA to establish performance standards for power-plant greenhouse-gas emissions displaced any federal-common-law right that might otherwise have existed to seek abatement of those emissions. The authorization to which we referred was that given in the NSPS [new source performance standards] program of 7411, a part of the Act not at issue here and one that no party in American Electric Power argued was ill suited to accommodating greenhouse gases. 16 The clear message to critics seeking to reverse or undermine Massachusetts through a destabilizing litigation approach is: Move forward; the Supreme Court decided the core issue of EPA s CAA authority to set greenhouse gas pollution reduction standards. EPA s current rulemaking approach under CAA 111(d) proposing the Clean Power Plan for existing power plants appears within the zone of 14. Id. at Id. at Id. at 14-15, n.5 (citation omitted) NEWS & ANALYSIS 44 ELR 10745

3 44 ELR ENVIRONMENTAL LAW REPORTER appropriate regulation recognized and allowed under Massachusetts, AEP, and UARG. B. Deference to EPA The Supreme Court has reaffirmed that EPA is entitled to substantial deference in its implementation of CAA regulations. Message to critics: Less nitpicking, move forward. That s the direction of the Supreme Court in AEP and in its April 2014 decision in EME upholding EPA s Cross- State Air Pollution Rule, which requires upwind states to significantly improve air quality by reducing power plant emissions that contribute to harmful ozone and fine particle pollution in downwind states. 17 Likewise, the D.C. Circuit s decision in White Stallion Energy Center v. EPA (White Stallion) upheld EPA s regulation of hazardous air pollutants mercury and other air toxics emitted by power plants that harm public health. 18 These decisions all rely on now-traditional Chevron deference. 19 In UARG, the Court did hold that EPA overreached and exceeded its discretion in one particular respect on the greenhouse gas emission standards. Rare are the cases like UARG, however, in which EPA s interpretation rises to the level of multiplying by a very large factor a number that is clearly stated in the statute. 20 The Court granted certiorari on only that one limited issue among the array sought by petitioners who were dissatisfied with the D.C. Circuit s opinion in Coalition for Responsible Regulation, Inc. v. EPA. 21 In that decision, the D.C. Circuit, among other things, upheld EPA s Endangerment Finding on the harmful health impacts of greenhouse gas emissions and upheld EPA s Tailpipe Rule setting greenhouse gas standards applicable to motor vehicles. 22 In UARG, the Court stated that it granted six petitions for certiorari but agreed to decide only one question: Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the CAA for stationary sources that emit greenhouse gases. 23 That limited review should give little solace to adamant critics of EPA s regulatory authority over greenhouse gas pollution under the CAA. Moreover, as a practical matter, the Court s decision, while taking some shots at EPA for reaching beyond Chevron deferential boundaries, 24 nonetheless allowed the Agency to achieve almost all of its intended results through the anyway sources, which comprise 83% of the overall emissions, leaving only about 3% of the targeted emissions now unreached. 17. EME, 572 U.S. (2014), No (U.S. Apr. 29, 2014). 18. White Stallion Energy Ctr. v. EPA, 748 F.3d 1222, 44 ELR (D.C. Cir. 2014). 19. Chevron U.S.A., Inc. v. Natural Res. Def. Council (Chevron), 467 U.S. 837, 14 ELR (1984). 20. UARG, slip op. at Coalition for Responsible Regulation, Inc. v. EPA 684 F.3d 102 (2012) (per curiam). 22. Id. at 119, UARG, slip op. at Id. at 10, 16, 21. The Court s AEP decision provided a more fundamental framework for according Chevron deference to Congress designated expert agency, here, EPA, which is applying its scientific, economic and technological expertise to decisionmaking. 25 The fate of businesses appeal of the EPA s science-based finding that greenhouse gas pollution endangers public health was sealed by the determination that courts should defer to EPA s scientific and technical expertise. The Supreme Court s EME decision and the D.C. Circuit s decision in White Stallion follow the deferential course set in AEP. In EME, the Court seemed to send a strong message, in the vernacular, of quit messing around to certain judges on the D.C. Circuit where polluters and trade associations have filed multiple appeals of EPA s clean air standards. In White Stallion, the D.C. Circuit panel majority attempted to bring an end to the long-standing saga of hard-to-reconcile previous decisions that delayed and deferred EPA regulatory actions to greatly reduce mercury pollution from coal plants. These court decisions create much-desired regulatory predictability and more certainty for owners and operators of competing coal plants (old and new), natural gas plants (old and new), nuclear plants, wind power developers, solar energy developers, and other energy industry actors who are making investment decisions. The long saga of the D.C. Circuit s sometimes inconsistent CAA decisions has made state-level policymaking and energy investment decisions by many different businesses more speculative than necessary or desirable. In EME, the Court s 6-2 majority opinion 26 strongly affirms EPA s reasonable exercise of its technical and policy expertise to implement the CAA. In upholding EPA s Cross-State Air Pollution Rule, the Supreme Court recognized that EPA s standard-setting expertise should be accorded considerable deference. Justice Ginsburg s majority opinion describes the regulatory challenge: [T]he efforts of Congress and the Environmental Protection Agency... to cope with a complex problem: air pollution emitted in one State, but causing harm in other States. Left unregulated, the emitting or upwind State reaps the benefits of the economic activity causing the pollution without bearing all the costs. Conversely, downwind States to which the pollution travels are unable to achieve clean air because of the influx of out-of-state pollution they lack authority to control. To tackle the problem, Congress included a Good Neighbor Provision in the Clean Air Act EPA adopted the Cross-State Air Pollution Rule in interpreting and applying the Good Neighbor Provision. The rule calls for consideration of costs, among other factors, when determining the emission reductions an upwind State must make to improve air quality in polluted down- 25. AEP, 131 S. Ct. at Justice Alito recused himself from the decision. 27. EME, slip op. at 1-2 (citations omitted).

4 NEWS & ANALYSIS 44 ELR wind areas. 28 The D.C. Circuit had invalidated EPA s Cross-State Air Pollution Rule in a 2-1 panel decision written by Judge Brett M. Kavanaugh, which held that the Good Neighbor Provision requires EPA to consider only each upwind State s physically proportionate responsibility for each downwind State s air quality problem. 29 In reversing the D.C. Circuit s 2-1 panel decision, the Supreme Court goes directly to strong Chevron deference in upholding EPA s Cross-State Air Pollution Rule: In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,... we reversed a D.C. Circuit decision that failed to accord deference to EPA s reasonable interpretation of an ambiguous Clean Air Act provision. Satisfied that the Good Neighbor Provision does not command the Court of Appeals cost-blind construction and that EPA reasonably interpreted the provision, we reverse the D.C. Circuit s judgment. 30 The Court went on to say that [w]e conclude that the Good Neighbor Provision delegates authority to EPA at least as certainly as the CAA [Clean Air Act] provisions involved in Chevron. 31 The Court s approach of deferring to EPA s reasoned CAA interpretation and implementation resolves a peculiar quagmire created by Judge Kavanaugh s 2-1 majority opinion invalidating EPA s Cross-State Air Pollution Rule. The D.C. Circuit had previously overturned EPA s Clean Air Interstate Rule (CAIR), which was the earlier approach to address this cross-state pollution problem. In 2008, the D.C. Circuit struck down CAIR, concluding that EPA s approach violated the CAA because of more than several fatal flaws in the rule and that [n]o amount of tinkering with the rule or revising of the explanations will transform CAIR, as written, into an acceptable rule. 32 The D.C. Circuit vacated CAIR in its entirety and remanded to EPA with directions to promulgate a rule consistent with the opinion of the court. Having invalidated the Cross-State Air Pollution Rule, Judge Kavanaugh determined that CAIR should nonetheless stay in effect as a stopgap even though it had previously been reversed and invalidated by the D.C. Circuit. Keeping an illegal standard in place is hard to justify except as necessary in the realm of the continual appeals seemingly designed to endlessly delay EPA from taking action to implement the CAA s statutory requirements. The Supreme Court s decision in EME should resolve this quagmire and bring much-needed increased certainty both for state policymakers and for energy industry executives to move forward in making business decisions. In White Stallion, the D.C. Circuit upheld EPA s Mercury and Air Toxics Standards implementing the 1990 Amendments to the CAA designed to reduce hazardous air pollutants emitted from power plants. The court s opin- 28. Id. at Id. 30. Id. 31. Id. at North Carolina v. EPA, 531 F.3d 896, 901 (D.C. Cir. 2008) (per curiam). ion summarizes the lengthy regulatory process over more than 20 years since the statutory provisions were enacted. 33 The court then explains [i]n matters of statutory interpretation, the court applies the familiar two part test under Chevron [and] the whole point of Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency. 34 In upholding EPA s long-delayed mercury and air toxics standards, the D.C. Circuit is finally helping to achieve more certainty and closure. These decisions are strong and consistent precedents for courts to apply in upholding EPA s Clean Power Plan for existing power plants, when the standards are finalized, if EPA reasonably applies its science-based technical and policy expertise in implementing CAA 111(d). In short, the AEP and EME decisions speed up EPA s regulatory implementation process by making the inevitable certiorari petitions and stay and delay requests, pending appeal, less persuasive and less compelling. The Supreme Court has not completely shut the door on challenges to EPA s standards, as UARG demonstrates, but the Court has clearly made appeals more constrained. There now seem to be seven votes on the Court supporting Massachusetts as providing EPA with authority to regulate greenhouse gas pollution under the CAA. C. State Common Law Tort Remedies Enabled Plaintiffs state common law tort remedies from greenhouse gas and other air pollutants are available in appropriate cases and are not displaced or preempted by the CAA following AEP. While AEP shut the door on federal common law injunction actions against greenhouse gas pollution as displaced by the CAA, there was at least arguable uncertainty whether that prohibition applied to federal common law damages actions. That glimmer of possibility was extinguished by the Ninth Circuit s decision in Kivalina, and the Supreme Court s subsequent denial of certiorari. The Ninth Circuit recognized that, unlike in AEP: Kivalina does not seek abatement of emissions; rather, Kivalina seeks damages for harm caused by past emissions. However, the Supreme Court has instructed that the type of remedy asserted is not relevant to the applicability of the doctrine of displacement.... Thus, under current Supreme Court jurisprudence, if a cause of action is displaced, displacement is extended to all remedies.... AEP extinguished Kivalina s federal common law public nuisance damage action, along with the federal common law public nuisance abatement actions. 35 Certiorari denied, door closed. However, the situation is emerging quite differently with the doors that the Court in AEP explicitly left open for state common law tort damages and injunctive actions. 33. White Stallion, 748 F.3d at Id. at (citations omitted). 35. Kivalina, 696 F.3d at 857.

5 44 ELR ENVIRONMENTAL LAW REPORTER In AEP, the Court in dicta recognized that state common law remedies are not displaced in many circumstances by the CWA, which has a parallel legislative history to the CAA. The Court cited International Paper Co. v. Ouellette 36 as holding that the Clean Water Act does not preclude aggrieved individuals from bringing a nuisance claim pursuant to the law of the source State. 37 Moreover, the Court sub silencio declined to support the U.S. Court of Appeals for the Fourth Circuit s pre-aep decision in North Carolina v. Tennessee Valley Authority, 38 which reversed a district court s ruling that state nuisance law could compel the Tennessee Valley Authority to clean up specific power plants to specific levels by specific times. There are also complex constitutional issues if the CAA is construed to preempt and abrogate state common law nuisance and other tort damages remedies without providing an economic quid pro quo value. In Duke Power Co. v. Carolina Environmental Study Group, 39 the Supreme Court upheld the federal Price-Anderson Act, which limits state common law tort damage actions following a nuclear power plant accident only because the statute included a reasonably just substitute remedy. Absent that quid pro quo, the Court s opinion raises, but reserves and leaves open, the question of whether the statute would violate the Due Process Clause. 40 The Third Circuit broke the ice post-aep in Bell v. Cheswick Generating Station, 41 concluding that the CAA does not displace or otherwise preempt the nearby plaintiff property-owners nuisance, negligence, and trespass claims under Pennsylvania common law against the power plant and its owner for ongoing discharges of air pollutants regulated under the CAA. The Third Circuit relied on the Supreme Court s reference in AEP to International Paper Co. v. Ouellette as recognizing that [l]ike the Clean Air Act, the Clean Water Act contains two savings clauses, one located in the citizen suit provision, and another which focuses on states rights. 42 After explaining how CWA 505 and 510 save the plaintiffs state common law tort remedies against polluters pursuant to the laws of the source state, the Third Circuit then holds that the parallel saving clauses in the CAA are at least as expansive as under the CWA and, indeed, more expansive: 36. International Paper Co. v. Ouellette, 479 U.S. 481, , 497, 17 ELR (1987). 37. AEP, 131 S. Ct. at 2540 (citations omitted). 38. North Carolina v. Tenn. Valley Auth., 615 F.3d 291, 40 ELR (4th Cir. 2010). 39. Duke Power Co. v. Carolina Envtl. Study Grp., 438 U.S. 59, 87-93, 8 ELR (1978). 40. Id. at 88. See also New York Cent. R.R. v. White, 243 U.S. 188 (1917), reviewing a state case involving the constitutionality of a workmen s compensation law and providing an analogy to the question raised by the Court. While denying any person s vested interest in the continuation of any particular right to sue, id. at 198, the Court twice suggested that abrogation without a reasonable substitute would raise constitutional due process problems. Id. at Bell v. Cheswick Generating Station, 734 F.3d 188, 43 ELR (3d Cir. 2013). 42. Id. at 194. GenOn argues that Ouellette is distinguishable from this case because the savings clauses of the Clean Water Act are broader than the corresponding provisions in the Clean Air Act. However, a textual comparison of the two savings clauses at issue demonstrates there is no meaningful difference between them. As the Supreme Court has acknowledged, and GenOn concedes, the citizen suit savings clause of the Clean Water Act is virtually identical to its counterpart in the Clean Air Act. As a side-by-side comparison of the text indicates, the only meaningful difference between the two states rights savings clauses is the portion of the Clean Water Act italicized above which refers to the boundary waters of the states. The reason why such language is not included in the Clean Air Act is clear: there are no such jurisdictional boundaries or rights which apply to the air. If anything, the absence of any language regarding state boundaries in the states rights savings clause of the Clean Air Act indicates that Congress intended to preserve more rights for the states, rather than less. In no way can this omission be read to preempt all state law tort claims. The only other circuit courts to have examined this issue in depth have also found no meaningful distinction between the Clean Water Act and the Clean Air Act. Ultimately, as commentators have recognized, there is little basis for distinguishing the Clean Air Act from the Clean Water Act the two statutes feature nearly identical savings clauses and employ similar cooperative federalism structures. Both Acts establish a regulatory scheme through which source states, and not affected states, play the primary role in developing the regulations by which a particular source will be bound. Both Acts contain citizen suit provisions which allow individuals to bring suit to enforce their terms under certain circumstances, and both Acts contain two savings clauses: one located within the citizen suit provision which focuses on the rights of individuals to sue, and a second independent savings clause which focuses on states rights. Given that we find no meaningful difference between the Clean Water Act and the Clean Air Act for the purposes of our preemption analysis, we conclude that the Supreme Court s decision in Ouellette controls this case, and thus, the Clean Air Act does not preempt state common law claims based on the law of the state where the source of the pollution is located. Accordingly, the suit here, brought by Pennsylvania residents under Pennsylvania law against a source of pollution located in Pennsylvania, is not preempted Id. at (citations and footnotes omitted).

6 NEWS & ANALYSIS 44 ELR In short, the Third Circuit concluded that: (1) the CAA s savings clauses preserve state common law claims and the statute does not preempt claims based on the law of the state where the source of the pollution is located; (2) allowing plaintiffs common law tort claims based on the law of the source state does not frustrate the CAA s goals; and (3) the political question doctrine does not bar plaintiffs claims. The Supreme Court subsequently denied GenOn Power Midwest s petition for certiorari. 44 In a somewhat different set of circumstances involving pollution from reformulated gas including fuel additives, the U.S. Court of Appeals for the Second Circuit also concluded that source-state common law tort claims are not preempted by the CAA. 45 These precedents now open the door for plaintiffs state common law tort remedies to proceed against air polluters, at the very least within the source states. In June 2014, the Iowa Supreme Court became the first state supreme court to squarely address and uphold plaintiffs rights to bring state common law tort actions seeking damages due to air pollution. This case involved pollution affecting plaintiffs health and property from a nearby grain processing plant. In Freeman v. Grain Processing Corp., 46 the court overturned a lower court s preemption holding and rejected the defendants arguments that the CAA displaced or otherwise preempted state common law nuisance, trespass, and other tort claims for property damage and harms to human health. Residents of Muscatine, Iowa, sued Grain Processing Corporation, which operates a local corn wet milling plant. The plaintiffs alleged that the plant s operations caused harmful pollutants and noxious odors to invade their land, thereby diminishing the full use and enjoyment of their properties. They based their claims on common law and statutory nuisance, as well as on the common law torts of trespass and negligence. They sought certification of the lawsuit as a class action, damages for the lost use and enjoyment of their properties, punitive damages, and injunctive relief. 47 The Iowa Supreme Court extensively discussed the history of nuisance and trespass common law in Iowa, how it has intersected with statutory environmental laws, especially the CAA, and how it has been applied to address Iowa s environmental problems. 48 The court then engaged in essentially the same assessment of International Paper Co. v. Ouellette and the related savings clauses in the CWA and CAA, respectively, as the Third Circuit had done in Bell v. Cheswick Generating Station and GenOn Power Midwest. 49 The state court assessed the issues more in a preemption framework, rather than following the Supreme 44. GenOn Power Midwest, L.P. v. Bell, 134 S. Ct (No ) (U.S. June 2, 2014). 45. In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 725 F.3d 65, , 43 ELR (2d Cir. 2013). 46. Freeman v. Grain Processing Corp., No (Iowa June 13, 2014). 47. Freeman, slip op. at Id. at 8-18 and Id. at Court s displacement framework in AEP, 50 but the state court nonetheless reached the same endpoint in concluding that: Prior to the recent AEP ruling in the Supreme Court, federal common law was utilized in numerous water pollution cases. As noted above, state claims of nuisance, negligence, and trespass are traditional causes of action that have been utilized in a wide variety of environmental contexts. Plainly, the existence of common law causes of action to address pollution has been part of the historic police powers of the states. When we look at the text of the CAA, we find language that tends to support the conclusion that Congress did not impliedly oust the state law actions of the source state. The any measures clause, the retention of state authority savings clause, and the citizens rights savings clause strongly suggest that Congress did not seek to preempt, but to preserve, state law claims. See 42 U.S.C. 7401(a)(3), 7416, 7604(e). The citizens rights savings clause expressly states that the ability to bring actions under the CAA does not preempt common law rights. See 42 U.S.C. 7604(e). While the term requirements in the retention of state authority savings clause is perhaps indefinite, most courts that have considered the question have concluded that the term includes common law duties. GPC suggests that allowing state law actions based on source-state law will undercut the structure of the CAA. We think not. The CAA statute was structured to promote cooperative federalism. Under the cooperative federalism approach, the states were given the authority to impose stricter standards on air pollution than might be imposed by the CAA. In short, Congress expressly wanted the CAA to be a floor, but not a ceiling, on air pollution control. 51 The Iowa Supreme Court recognized that the federal regulatory framework under the CAA is increasingly complicated, but that shouldn t contradict the cooperative federalism framework and the notion that states may more stringently regulate remains a hallmark of the CAA. 52 Those complexities do not bar state common law tort damages actions, although the court stated that [w]ith respect to the question of whether injunctive relief would conflict with the CAA, we do not find this issue ripe at this time. 53 The state court recognized that [a]s noted by the Second Circuit in AEP, courts have successfully adjudicated complex common law public nuisance claims for more than a century. 54 The court also rejected Grain Processing Corp. s attempt to dismiss the plaintiffs common law tort claims under the political question doctrine Id. at 26-28, Freeman, slip op. at 28, 41 (citations omitted). 52. Id. at Id. at Id. at Id. at 63.

7 The Iowa court s fundamental reasoning in allowing the plaintiffs state common law damages actions to go forward was that: [S]tate common law and nuisance actions have a different purpose than the regulatory regime established by the CAA. The purpose of state nuisance and common law actions is to protect the use and enjoyment of specific property, not to achieve a general regulatory purpose. It has long been understood that an activity may be entirely lawful and yet constitute a nuisance because of its impairment of the use and enjoyment of specific property. We therefore decline to conclude that the increased complexity of the CAA has categorically elbowed out a role for the state nuisance and common law claims presented here. 56 The Iowa Supreme Court thus addressed head-on the preemption/displacement challenge under the Supremacy Clause to its historic state common law tort remedies. The court unanimously rejected the attempt to further federalize air pollution remedies and subjugate traditional state powers to the CAA regulatory system following the Supreme Court s decisions in Massachusetts and AEP. III. Conclusion The pieces of the climate change law puzzle are coming together, and the full picture is emerging. Massachusetts is solid and stabilized case law. The seven-member Supreme Court majority appears clear in its decision to move for- ward and not revisit its Massachusetts decisions despite novel arguments from the cottage industry of appellate attorneys. This stability allows businesses to have greater certainty and predictability in making their economic decisions on power plant, renewable energy, and energy efficiency investments, among others. Similarly, this consistency enables EPA and state environmental agencies to have more certainty in their policy approaches and regulatory oversight. It also gives other courts more clarity and predictability in understanding how the Supreme Court is likely to handle cases that come up on appeal from their circuits. The federal courts in AEP, EME, and White Stallion have afforded strong Chevron deference to EPA s scientific and technical expertise in interpreting and applying CAA standards, although UARG provides a cautionary hedge against agency overreaching. Both the Third Circuit in Bell and the Iowa Supreme Court in Freeman have concluded that plaintiffs can proceed with state common law tort damages claims under the source state laws, and that these traditional state remedies are not displaced or preempted by the CAA. When all is said and done, if the federal and state courts uphold plaintiffs proceeding with state common law rights and remedies for pollution damages and in seeking injunctive relief against pollution hazards, does it really matter if they cannot proceed under federal common law as well? One door may close, but another door is open for achieving relief. 56. Id. at (citations omitted). 44 ELR ENVIRONMENTAL LAW REPORTER