Over the past year, several cities and counties have brought common law actions for activity they claim causes climate change, targeting both in-state and out-of-state sources. Does state common law reach this far?
Continue Reading The Common Law of Climate Change
F. William Brownell
State Common Law and the Global Environment
By F. William Brownell on
In recent years, plaintiffs’ attorneys and public-interest groups have brought common law actions seeking injunctive relief or damages for air emissions they claim cause climate change. Because climate change is a global phenomenon, these actions have targeted both in-state and out-of-state sources. Does state common law reach this far?
A state’s common law is founded in its police powers, which are among the powers that the Constitution generally reserved to the states. By contrast, the Constitution specifically delegates to Congress the power to regulate interstate commerce. A state’s police powers therefore do not extend beyond its borders. For this reason, the Supreme Court in the last century discovered a limited “federal” common law to address interstate pollution at a time when there were no federal laws regulating such interstate concerns. Missouri v. Illinois, 180 U.S. 208, 241 (1901). As the Court observed, “[i]f state law can be applied, there is no need for federal common law; if federal common law exists, it is because state law cannot be used.” City of Milwaukee v. Illinois, 451 U.S. 304, 314 n.7 (1981) (Milwaukee II).Continue Reading State Common Law and the Global Environment
The Supreme Court Takes on Agency Deference—Trump Beware!
By F. William Brownell on
Executive Branch agencies write vague rules. Then they give them meaning through interpretation. That meaning may change over time through re-interpretation. Indeed, it is not hard to find examples of rules that meant one thing one day and the opposite the next. See, e.g., Perez v. Mortgage Bankers Association, 135 S. Ct. 1199 (2015). This is a problem for regulated entities that face penalties for failure to comply. Reflecting such concerns, the deference doctrine has eroded slowly over the past two decades, with pronounced critical commentary from conservative Justices. In October 2016, the Supreme Court granted review in a case from the Fourth Circuit — GG v. Gloucester County School Board (cert. granted Oct. 28, 2016)—where the court gave “controlling weight” to a staff interpretation of a Department of Labor (“DOL”) regulation. In Gloucester County, the Court will have an opportunity to rein in a particularly aggressive use of agency deference. Does this case presage more comprehensive review of the Court’s deference jurisprudence? And what does it portend for the Trump Administration’s efforts to reverse Obama Administration regulatory priorities?
Continue Reading The Supreme Court Takes on Agency Deference—Trump Beware!