Scholars argue that a recent Supreme Court decision may bolster state climate lawsuits.
A “gut punch.” A “dangerous opinion.” An “unprecedented power grab.” An “extraordinary instance of judicial activism.” These are but a few of the ways that environmental law scholars described the U.S. Supreme Court’s 2022 decision in West Virginia v. EPA, which limited the federal government’s authority to regulate greenhouse gas emissions.
But despite the alarm raised by many scholars and activists, professors Michael Barsa and David A. Dana, see a silver lining to West Virginia. Barsa and Dana argue in a recent article that because West Virginia limits the scope of federal regulations, it could prevent federal laws from preempting—or overriding—state climate laws that authorize climate change lawsuits not authorized by federal law. In particular, Barsa and Dana propose that the rationale underlying West Virginia should be used to prevent courts from ruling that climate change lawsuits based on state public nuisance law are preempted by federal law.
West Virginia concerns Section 111 of the Clean Air Act, which authorizes the U.S. Environmental Protection Agency (EPA) to design the “best system” for regulating emissions from power plants. The key question in West Virginia was whether EPA exceeded its Section 111 authority by adopting the Clean Power Plan, which required energy producers to transition from coal and natural gas to cleaner energy sources. In ruling that EPA exceeded its statutory authority, the Supreme Court announced a decision that poses “a substantial obstacle to federal climate regulation,” as Barsa and Dana described it.
In West Virginia, the Supreme Court rejected EPA’s interpretation of the Clean Air Act by invoking the major questions doctrine, which says that agencies cannot rely on vague statutory language when making decisions of “vast economic and political significance.” The major questions doctrine now appears to direct courts to strike major regulations that Congress did not expressly authorize rather than deferring to an agency’s interpretation of the underlying statute.
Barsa and Dana argue that the current Supreme Court’s interpretation of the major questions doctrine makes it easier for those who oppose a regulation to persuade a court to strike it down. Barsa and Dana warn that the major questions doctrine poses an especially large threat to regulations that address problems, such as climate change, that have large economic implications. Barsa and Dana predict that the fossil fuel industry will rely on the major question doctrine and West Virginia to attack federal climate regulations that Congress did not expressly authorize.
Although Barsa and Dana express concern that West Virginia will hinder federal climate policy, they claim that the decision could actually empower states to take greater action against climate change. In particular, Barsa and Dana assert that West Virginia should prevent courts from dismissing suits brought under state law by parties seeking to hold the fossil fuel industry liable for the costs associated with climate change mitigation and adaption.
Barsa and Dana explain that many state climate change suits proceed on the theory that energy companies have misled the public and government about climate change and are thus responsible for its acceleration and severity. According to Barsa and Dana, the states and localities that bring these climate suits assert that if the fossil fuel industry had not misled the public, policymakers would have intervened to limit climate change before it was “allowed to occur on a scale that will cause the plaintiffs substantial costs to adapt to climatic effects.”
Barsa and Dana point out that climate change lawsuits brought under state law currently face high rates of dismissal because of federal preemption. Federal regulations should only preempt state laws concerning matters of health and safety if such preemption was “the clear and manifest purpose of Congress,” as one federal court recently stated. Nevertheless, Barsa and Dana emphasize that courts frequently rule that federal law implicitly preempts state law.
According to Barsa and Dana, courts may find implied federal preemption when a federal regulatory scheme is pervasive enough to support the conclusion that Congress did not envision a role for state regulation. In addition, courts may decide that federal law implicitly preempts state law that regulates conduct in a field that Congress intended only the federal government to regulate.
Barsa and Dana explain that energy companies draw upon implicit preemption to persuade courts to dismiss climate adaptation lawsuits on the basis of federal preemption. Notably, Barsa and Dana point out that energy companies have harnessed the Clean Air Act—the law at the heart of West Virginia—to justify the dismissal of climate adaption suits.
For example, in 2021, prior to the West Virginia decision, a federal court held that the Clean Air Act implicitly preempts climate adaptation claims brought under New York law. The court reasoned that because the Clean Air Act already addresses greenhouse gas emissions, it “simply leaves no room for state court common law claims tied to greenhouse gas emissions,” as Barsa and Dana note.
Barsa and Dana contend that implied preemption, which by its nature only occurs when “Congress has not spoken and has not given a clear statement,” conflicts with West Virginia and the major question doctrine. According to Barsa and Dana, federal preemption almost always implicates the major question doctrine because the displacement of state political power constitutes an act of “vast economic and political significance” in and of itself. Thus, under West Virginia, courts should reject claims that the Clean Air Act implicitly authorizes the preemption and dismissal of climate adaptation suits brought under state law, Barsa and Dana assert.
As Barsa and Dana observe, “West Virginia has been widely read as an attack on climate regulation and on ambitious, creative, effective regulation of all sorts.” But that is not the only way to interpret the decision. Although Barsa and Dana recognize that West Virginia may undermine federal climate policy, they also see it as paving the way for greater state action against climate change.