Paul J. Larkin (Advancing American Freedom; George Washington University) has posted Federalism and Global Climate Change: The Suncor Energy Case on SSRN. Here is the abstract:
For most of the last century, federal common law provided the rule for decision in interstate pollution cases because no one state possessed the authority to impose its own law on another, equally sovereign state over the latter’s objection. Congress may oversee interstate disputes, however, because Article I vests it with the power to regulate interstate commerce. When exercising that power, Congress also may displace judicially created federal common law, which, by definition, lacks the status of constitutional law. All of that is indisputable.
With regard to the interstate movement of sulphur dioxide or hydrocarbons, Congress made the decision to regulate that field by passing the CAA and delegating interstitial rulemaking and enforcement authority to the EPA. That decision bars Colorado courts from resorting to the regulatory power of state tort law atop the federal regulatory mechanism that Congress preferred. Indeed, state tort law has never played a substantive role in the resolution of interstate air pollution disputes, and, as a matter of precedent, wholistic constitutional analysis, and logic, state law cannot assume that role today. The bottom line is this: As far as being able to play a role in the governance of interstate air pollution, or even global climate change, state tort law always has been, and remains today, in Charles Dickens’ words, “as dead as a doornail.”
Recommended.
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