By Michael Burger*

          Photo by Alexander TsangUnsplash

On April 1, 2021, a unanimous Second Circuit panel dismissed a lawsuit filed by New York City against a handful of fossil fuel companies seeking damages for climate change harms under state public nuisance and trespass law. (The opinion and other case materials are available here.) The decision has already started to populate briefings in other climate cases brought by state and local governments against fossil fuel companies, and it will undoubtedly occupy a good deal of debate as those cases progress, both in the current stage of removal-remand battles and in the motions to dismiss that will follow. In my view, the court missed the mark, in the main. But in this blog post, I unpack an aspect of the decision where I think it was more of a mixed bag: the court’s treatment of the international air pollution provision of the Clean Air Act, Section 115.

The headline here is that the Second Circuit found that Section 115 authorizes the U.S. Environmental Protection Agency to regulate greenhouse gases, and that this authority may prove central to addressing climate change under the statute. The opinion cited Section 115 for the proposition that “Congress created a comprehensive scheme designed to address greenhouse gas emissions – the Clean Air Act in – which … contemplates the need for foreign nations to promulgate reciprocal legislation” and described Section 115 as a “carefully balanced scheme of international cooperation on a topic of global concern.” (The opinion was written by Judge Richard Sullivan, appointed to the Second Circuit by Donald Trump, and joined by Judge Amalya Kearse, a Republican appointed by Jimmy Carter in 1979, and Judge Michael Park, also a Trump appointee.)

The court is the first to look at this question, and it appears to have had no difficulty reaching its conclusion on Section 115. It thus accomplished in a couple of paragraphs what a group of us—including scholars and lawyers at the Sabin Center, the Institute for Policy Integrity at NYU, the Emmett Institute at UCLA, law professors at UVA and Oregon, experienced lawyers from EPA and the State Department, leading state regulators, and veterans of congressional climate battles—sought to accomplish in an entire book, Combating Climate Change with Section 115 of the Clean Air Act: Law and Policy Rationales, published last year. (The book and related materials can be accessed here.)

On this point, the court was absolutely correct. Under Section 115, two conditions must be satisfied to trigger EPA’s authority:

  • First, the EPA Administrator must issue an endangerment finding, which he may do where he “has reason to believe that “any air pollutant or pollutants emitted in the United States cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare in a foreign country.” This language is nearly identical to that of Clean Air Act Section 202(a), which the Supreme Court held in Massachusetts v. EPA applies to greenhouse gases emitted from motor vehicles, and under which EPA issued an endangerment finding for greenhouse gases in 2009. Alternatively, the U.S. Secretary of State may initiate the endangerment finding by requesting the Administrator to act in response to pollution the Secretary “alleges is of such a nature.”
  • Second, the EPA Administrator must make a reciprocity finding. Such a finding may be made where the Administrator determines that the endangered foreign country gives the U.S. “essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given” by Section 115. This requirement forces the United States to act in concert with other nations, and necessitates international negotiations that ensure U.S. citizens receive comparable protections and benefits from other countries as the U.S. provides to their citizens.

 

As my collaborators and I argue in our book, these criteria are satisfied in the case of climate change. (A summary is available here.) Indeed, the plain meaning of the statute, its structure, and its purposes all support the Second Circuit’s conclusion. If one follows the approach adopted by the Supreme Court last term in Bostock v. Clayton County – which held that a statute should be interpreted “in accord with the public meaning of its terms at the time of enactment” – there may be no provision in the Clean Air Act that more clearly applies to greenhouse gases than Section 115. When Section 115 was enacted in 1965, President Lyndon Johnson sent a message to Congress calling for legislation to address “air pollution … [that] has altered the composition of the atmosphere on a global scale … through a steady increase in carbon dioxide from the burning of fossil fuels,” while the House committee that wrote Section 115 heard testimony that “air pollution … includes carbon dioxide” and that climate change is “[a]n effect of pollution” that “may in time melt the polar icecaps … thus dangerously shrinking the earth’s land surface area.”

But, while the court was right on this fundamental point, it was wrong on another.

Let’s rewind, for context: The Second Circuit held the City’s state law claims were preempted by federal common law because, in the court’s view, those claims sought to impose strict liability on fossil fuel companies for domestic and foreign greenhouse gas emissions related to the production, promotion and sale of their fossil fuel products, thereby implicating the federal common law of interstate pollution, on one hand, and the federal common law of foreign affairs, on the other. The court correctly noted that, under the Supreme Court’s holding in American Electric Power v. Connecticut (AEP), the Clean Air Act has displaced federal common law related to domestic GHG emissions. However, the court did not then assess whether the Clean Air Act preempts the state law claims, as AEP directs and the Constitution dictates the court do; rather, it concluded that the state law claim was extinguished altogether by federal common law, and that Congressional action was insufficient to give it new life. This aspect of the decision is highly problematic, to say the least. Dan Farber put it well: “I have my doubts about whether other courts will find the Second Circuit’s analysis persuasive. Establishing the existence of the federal common law one page only to abolish it on the next page seems awfully contrived.”

As for emissions from combustion of the fossil fuel companies’ products on foreign soil that may have contributed to the City’s harms, the court held that the federal common law of foreign affairs preempted state law. As with domestic emissions, the court examined whether the Clean Air Act—here, through Section 115—could displace federal common law in this area, concluding it did not because “the statute’s silence on the issue of extraterritorial reach, the fact that the Act contemplates the need for reciprocal protections from foreign nations, and the State Department’s lead role in setting foreign policy on environmental matters, all plainly demonstrate that the Clean Air Act regulates only domestic emissions.”

It is true that the Clean Air Act only authorizes direct regulation of domestic emissions. But direct regulation of foreign emissions is not the only way Congress could displace federal common law. The reciprocity requirement is the statute’s primary tool for reaching international agreement on transboundary air pollution. Applying the relevant standard for finding congressional displacement to that statutory requirement should produce a different result.

As the Second Circuit recognized elsewhere in its decision, “Congress displaces federal common law when it passes a statute that ‘speaks directly to the question’ that the judge-made rule was designed to answer.” Congress has no authority to directly regulate emissions on foreign soil, nor is there any practical or politically viable scenario in which it would. But it need not do so to displace the federal common law of foreign affairs. It only has to “speak directly” to the issue of international air pollution that may harm the United States. The reciprocity requirement in Section 115 does just that. It makes control of international air pollution a shared objective to be pursued through international negotiation and agreement.

This approach is not unique to the Clean Air Act. Congress has a long history of passing laws that authorize the executive branch to implement reciprocal agreements with foreign governments, dating back to 1792, when the second Congress empowered the Postmaster General to “make arrangements with the Postmasters in any foreign country for the reciprocal receipt and delivery of letters and packets, through the post offices.” Section 13 of the International Copyright Act of 1891 provides copyright protection to citizens of other countries “when such foreign state or nation permits to citizens of the United States of America the benefit of copyright on substantially the same basis as its own citizens” or “when such foreign state or nation is a party to an international agreement which provides for reciprocity in the granting of copyright.” Section 3 of the 1897 Tariffs Act empowers the president to suspend duties on exports to the U.S. from foreign countries once an agreement that “in the judgment of the President, shall be reciprocal and equivalent” has been reached. The Magnuson-Stevens Act of 1976 has a provision titled “Reciprocity” that provides that foreign vessels may not fish in U.S. waters “unless such nation extends substantially the same fishing privileges to fishing vessels of the United States … as the United States extends to foreign fishing vessels.” (See 16 U.S.C. 1821(f)). The Clean Water Act has its own “international pollution abatement” provision, which can be triggered if a foreign nation “has given the United States essentially the same rights with respect to the pollution and control of pollution.” And the Oil Pollution Act and CERCLA allow foreign claimants to recover costs or damages “if the Secretary of State … has certified that the claimant’s country provides a comparable remedy for United States claimants.”

The displacement of federal common law by the Clean Air Act’s international air pollution provision should be a non-issue for most or all of the other climate cases, where, as district and circuit court judges have repeatedly found, the nuisance claims hinge on plaintiffs’ allegations that fossil fuel companies have engaged in a concerted, decades-long disinformation campaign, and not on the mere production and sale of their products, and where other consumer protection and tort claims are involved. But Congress clearly knows how to “speak directly” to particular issues involving foreign affairs, and to delegate authority to the executive branch to forge international arrangements and determine the adequacy of the reciprocal benefits they provide in order to address them. It did so in regard to international air pollution in Section 115. Whatever federal common law of foreign affairs may have once existed in this space has been displaced. The remaining question, then, is whether Section 115 preempts state law claims for some other reason. But that’s an analysis, and a set of arguments, for another day.

*Michael Burger is the Executive Director of the Sabin Center and a Senior Research Scholar at Columbia Law School. He is the editor of Combating Climate Change with Section 115 of the Clean Air Act: Law and Policy Rationales, which includes chapters from numerous authors addressing some of the legal issues discussed in this post. He is also Of Counsel at Sher Edling LLP, which represents state and local governments in a number of the climate cases discussed above. The opinions expressed in this post are solely those of the author, and do not necessarily reflect the views of anyone else.

 

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