The Return of Federal Common Law

Will the federal courts take over control of climate change litigation? One judge says so.

I’m traveling but wanted to get in a few quick words about Judge Alsup’s decision today in the California climate change litigation. This is a really complex issue, and I wanted to try to unpack it a bit.

In general, except where a federal statute or constitutional provision is the basis for an action, legal disputes are governed by state law, whether cases are filed in state court or federal court. There is an exception, however, for matters of special federal concerns. A line of cases going back about a century says that interstate pollution is one of those areas.

In a number of cases, plaintiffs brought suits against emitters for remedies based on climate change, invoking this “federal common law nuisance” theory. The Supreme Court cut off those claims in the AEP, holding that the federal common law was displaced by the Clean Air Act’s regulation of greenhouse gases. But the Court left open the question whether similar claims could be brought under state common law, rather than federal common law. With me so far?

Here’s where things get sticky. The plaintiffs in this case brought suit under California nuisance law against producers of fossil fuels, claiming that they had contributed to climate change through marketing the fuels and deceiving the public about the risk posed by their products. They filed that case in state court. The defendants then asked a federal court to take over the case, a procedure called removal. That brings us to Judge Alsup’s decision.

Judge Alsup ruled that these cases are covered by the federal common law of nuisance, not state law. He saw a need for a uniform federal rule covering remedies against fossil fuel producers given the global nature of the problem and the fact that the defendants’ conduct was also global. He also distinguished the AEP case, on the ground that the Clean Air Act regulates emissions rather than production and marketing of fossil fuels. If he’s right that the case arises under federal law, the defendants clearly have a right to move it to federal court.

The first issue is whether the case really is covered by federal common law. In general, the Supreme Court has increasingly stressed the exceptional nature of federal common law and the need to be sparing in its application. Generally, c0urts haven’t held that marketing or producing a product is subject to federal common law – otherwise, lawsuits for harm caused by a lot of defective products would have to be brought in federal court rather than state court.

Maybe Judge Alsup is right that the climate issue is especially suited to federal common law. That makes a certain amount of sense in policy terms, but I have some doubts about whether the Supreme Court would agree. His effort to distinguish AEP has some logic on its side, since the Clean Air Act doesn’t regulate production and marketing (as opposed to emissions). But the damages also relate to the effects of the emissions, so this distinction also seems open to debate.

The plaintiffs probably brought suit in state court because they expected a better reception from California judges. But Judge Alsup has a good track record in environmental cases, and the litigation will have a higher profile in federal court. So this may not be much of a loss for them.

Judge Alsup certified the case for immediate appeal, which seems very sensible. We’ll see what the Ninth Circuit, and maybe ultimately the U.S. Supreme Court, has to say about all this. In my own view, AEP was wrong in the first place and the Court should have stuck with federal common law all along. But given AEP, it’s not clear to me that these cases belong in federal court.

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Reader Comments

5 Replies to “The Return of Federal Common Law”

  1. “….A line of cases going back about a century says that interstate pollution is one of those areas….”

    Carbon dioxide is not a pollutant at all, it is a “fake pollutant” that does not have air quality standards based on health effects like real air pollutants have. The interstate pollution argument is another extreme (and pathetically stupid) lie that is used to spread hysteria and facilitate the public fraud that surrounds carbon dioxide and climate mitigation.

    1. Hey, it’s BQRQ arguing but not arguing. I’ll provide a response, not for BQRQ since he will duck out of the conversation muttering something about gay marriage, but for any other readers who have stumbled upon these comments.

      The impacts of humanity’s carbon dioxide emissions are understood by the scientific community to be significantly harmful for mankind. Three degrees Celsius of warming by the end of the century is looking to be the likely outcome. This is projected to eventually doom 275 million people to be displaced by coastal flooding, including 3 million in Miami and 18 million in Shanghai.

      https://www.theguardian.com/cities/ng-interactive/2017/nov/03/three-degree-world-cities-drowned-global-warming

      People like BQRQ will laugh about how easy it is for them to adapt, but empathy for those less fortunate is not their strong suit. Will BQRQ read the above article and provide a reasoned response? No, only fringe far-right sources are worth considering in his mind. You see, he is convinced that thousands of scientists around the world speaking a hundred different languages are engaged in a global conspiracy to get government funds. But the idea that fossil fuel companies have bought conservative politicians? Impossible to consider for him.

      1. Dear BBQ,
        At the risk of accidentally arguing about climate change, the most reasonable and honest response that any intelligent person could offer is that carbon dioxide is a fake air pollutant, which is absolutely true. Have a good day and try to behave.

        1. As we can see, this is what those duped by fossil fuel propaganda have to do to remain attached to climate change denial: 1) avoid facing up to any and all opposing evidence and 2) blindly repeating their middle-school level understanding of the science.

  2. In addition to distinguishing AEP on the basis that the nuisance claim is focused on producers, not emitters, Judge Alsup also noted that the nuisance claim is in respect of global emissions – not just those occurring in the U.S.A. He points out that the Clean Air Act does not apply to international emissions, so it cannot displace federal nuisance claims in respect of those emissions. I think that’s an important point which should be mentioned in this post. Otherwise, thank you, Professor Farber, for a useful summary.

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About Dan

Dan Farber

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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