The Second Circuit has ruled that the Clean Air Act (via the 2007 SCOTUS decision in Massachusetts v. EPA) is the forum for regulating green house gases. — not state common law. The decision in New York City v. Big Oil is rich with irony. As it turns out, climate activists and Democrat states preempted NYC’s lawsuit against Big Oil by convincing SCOTUS 14 years ago to allow EPA to regulate greenhouse gases in Massachusetts v. EPA. Climate activists have tried to take down Big Oil with the #ExxonKnew campaign. Looks like the #ActivistLawyersShouldHaveKnown that the political question of regulating greenhouse gases has already been decided by SCOTUS. The decision is here. Some key quotes below.

• “First, global warming is a uniquely international concern that touches upon issues of federalism and foreign policy. As a result, it calls for the application of federal common law, not state law. Second, the Clean Air Act grants the Environmental Protection Agency – not federal courts – the authority to regulate domestic greenhouse gas emissions. Federal common law actions concerning such emissions are therefore displaced. Lastly, while the Clean Air Act has nothing to say about regulating foreign emissions, judicial caution and foreign policy concerns counsel against permitting such claims to proceed under federal common law absent congressional direction. And since no such permission exists, each of the City’s claims is barred and its complaint must be dismissed.” (Page 1.)
• “The question before us is whether municipalities may utilize state tort law to hold multinational oil companies liable for the damages caused by global greenhouse gas emissions. Given the nature of the harm and the existence of a complex web of federal and international environmental law regulating such emissions, we hold that the answer is ‘no.”’ (Page 5.)
• “Global warming presents a uniquely international problem of national concern. It is therefore not well-suited to the application of state law. Consistent with that fact, greenhouse gas emissions are the subject of numerous federal statutory regimes and international treaties. These laws provide interlocking frameworks for regulating greenhouse gas emissions, as well as enforcement mechanisms to ensure that those regulations are followed.” (Page 6.)
• “The City of New York has sidestepped those procedures and instead instituted a state-law tort suit against five oil companies to recover damages caused by those companies’ admittedly legal commercial conduct in producing and selling fossil fuels around the world. In so doing, the City effectively seeks to replace these carefully crafted frameworks – which are the product of the political process – with a patchwork of claims under state nuisance law. .. [W]e cannot condone such an action.” (p. 6.)
• “… every single person who uses gas and electricity – whether in travelling by bus, cab, Uber, or jitney, or in receiving home deliveries via FedEx, Amazon, or UPS – contributes to global warming . . .” (p. 8.)
• “The City freely admits that it is not able to halt the Producers’ conduct under any federal statute or international agreement. Indeed, it acknowledges that the Producers’ conduct is ‘lawful . . . commercial activit[y].’” (p. 9.)
• “To hear the City tell it, this case concerns only “the production, promotion, and sale of fossil fuels,” not the regulation of emissions. . . . In other words, we are told that this is merely a local spat about the City’s eroding shoreline, which will have 1 no appreciable effect on national energy or environmental policy. We disagree.” (pp. 19-20.)
• “Artful pleading cannot transform the City’s complaint into anything other than a suit over global greenhouse gas emissions. It is precisely because fossil fuels 4 emit greenhouse gases – which collectively “exacerbate global warming” – that the City is seeking damages. Put differently, the City’s complaint whipsaws between disavowing any intent to address emissions and identifying such emissions as the singular source of the City’s harm. But the City cannot have it both ways.” (p. 20.)
• “Stripped to its essence, then, the question before us is whether a nuisance suit seeking to recover damages for the harms caused by global greenhouse gas emissions may proceed under New York law. Our answer is simple: no.” (p. 20.)
• “To state the obvious, the City does not seek to hold the Producers liable for the effects of emissions released in New York, or even in New York’s neighboring states. Instead, the City intends to hold the Producers liable, under New York law, for the effects of emissions made around the globe over the past several hundred years. In other words, the City requests damages for the cumulative impact of conduct occurring simultaneously across just about every jurisdiction on the planet. [¶ ] Such a sprawling case is simply beyond the limits of state law.” (pp. 21-22.)
• “Thus, while the City is not expressly seeking to impose a standard of care or emission restrictions on the Producers, the goal of its lawsuit is perhaps even more ambitious: to effectively impose strict liability for the damages caused by fossil fuel emissions no matter where in the world those emissions were released (or who released them). If the Producers want to avoid all liability, then their only solution would be to cease global production altogether.” (p. 24.)
• “To permit this suit to proceed under state law would further risk upsetting the careful balance that has been struck between the prevention of global warming, a project that necessarily requires national standards and global participation, on the one hand, and energy production, economic growth, foreign policy, and national security, on the other.” (p. 25.)
• “At bottom, it is enough to say that the issues raised in this dispute concerning domestic emissions are squarely addressed by the Clean Air Act. As a result, we affirm the district court’s conclusion that the City’s federal common law claims concerning domestic greenhouse gas emissions are displaced by statute.” (pp. 36-37.)
• “The City “wishes to impose New York nuisance standards on emissions emanating simultaneously from all 50 states and the nations of the world.” (p. 42.)

via JunkScience.com

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April 1, 2021 at 06:58PM