For these interstate nuisances, the court applied judge-made federal common law.Authorities from state and international law offered guidance for the content of the rule to apply, but otherwise the courts chiefly relied on their own sound judgment to decide the shape of the nuisance rules.In the early 20 century, the state of Georgia brought a successful nuisance claim in the U. Supreme Court against the Tennessee Copper Company, which operated a polluting smelter in Ducktown, Tenn., just north of the Georgia-Tennessee border.The environmental devastation produced was dramatic; the hillsides around the plant still bear scars from the pollution over a century after the court's decision.This wholesale erasure of future litigation undoubtedly pleases the anti-lawyer crowd, but it also completely undermines any commitment to the states being allowed to experiment with new laws and address climate change through their own legal systems.Of course, fealty to an abstract concept such as federalism often disappears in the face of a policy (such as same-sex marriage) that an advocate of federalism may hate more than an imbalance in state/federal relations.Second, starting in 1970, Congress entered the environmental arena with a vengeance, enacting statutes like the Clean Air Act, the Clean Water Act, and the basic hazardous waste laws within a few short years.With these detailed statutes in place and agencies like the EPA dominating pollution control, the role played by federal courts in environmental regulation diminished.
This provision would appear to wipe out all climate change-related lawsuits, ever, whether they are premised on federal or state common law, eliminating lawsuits like as well as all state lawsuits.Even if the bill goes nowhere, work on it certainly undermines the impression that the regulatory scheme comprehensively displaces federal common law, since that scheme is apparently so fragile.To be sure, Barrasso's bill (unlike the Upton/Inhofe draft) attacks the litigation strategy directly.Indeed, some doubted whether common-law nuisance lawsuits could even be brought after the enactment of these detailed federal statutes.Even though the Clean Air Act and the Clean Water Act contain provisions that arguably preserve preexisting common law actions, the Supreme Court made clear that these new statutes displaced the need for federal court involvement where Congress "has occupied the field through the establishment of a comprehensive regulatory program supervised by an expert administrative agency." (Suits based on state nuisance law still survive after the enactment of the federal pollution laws.) But in recent years, the challenges posed by global climate change have sent environmental advocates scurrying to the courts, Congress, and federal agencies in efforts to address the problem of GHG emissions.The argument that the new Clean Air Act regulations have displaced federal common law is but one in the arsenal that the Obama administration and the private petitioners have advanced in court to kill the Circuit panel in the case below and is therefore recused.