If two environmental groups had their way, greenhouse gas emissions would be regulated by every state in the country, as well as by the Environmental Protection Agency (EPA) and the Departments of the Interior, Agriculture, Commerce, Energy and Defense. The groups have brought legal actions in virtually every state and against the federal government to compel government officials to impose 6 percent annual reductions in greenhouse gas emissions under a theory that each government has a duty to protect the air as a commonly shared public trust resource.
This would be a disaster for manufacturers, who would have to understand and comply with conflicting air emission requirements throughout the country.
Fortunately, a federal judge yesterday threw out their complaint against the federal agencies. In a straightforward opinion, Judge Robert L. Wilkins of the federal district court in the District of Columbia ruled that federal courts have limited jurisdiction, and can’t hear a claim that is fundamentally a state law claim.
He also said that, even if there were a valid claim to regulate air emissions under federal common law, that claim has been displaced by the Clean Air Act. Only the EPA has the power to set those limits, subject to judicial review.
The NAM has taken the lead in fighting a barrage of lawsuits that attempt to regulate by litigation. We intervened in this case last year, and filed and argued the motion to dismiss that has now won the judge’s approval. We also filed opposition briefs in the 2007 Massachusetts v. EPA case, in which the Supreme Court first recognized EPA authority over greenhouse gases.
Last year, we also filed in the American Electric Power case, in which the Court rejected claims to abate carbon-dioxide emissions under federal common law. Cases raising state common law claims are still pending, and we will continue to fight these battles.
This latest decision offers some optimism that private lawsuits to force changes in public policy are not gaining favor in the courts.
A summary of the case, Alec L. v. Jackson (D.D.C.), and our briefs, can be found here.
Quentin Riegel is vice president of litigation and deputy general counsel, National Association of Manufacturers.
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