By Peyton Torgan, ELR Staffer, Class of 2027

This past July, the EPA released a proposal to rescind its 2009 Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, which is the source of the EPA’s authority to regulate greenhouse gases as dangerous pollutants under the Clean Air Act. Specifically, the EPA found that six greenhouse gases in the atmosphere—carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride—threaten the public health and welfare of current and future generations. Given that regulation of greenhouse gas emissions is the main way the EPA holds polluters accountable, rescindment of these “findings” would leave a major gap in the nation’s climate governance.

If the EPA rescinds its 2009 findings, climate advocates may look to tort law to hold polluters liable—as they have done in the past. For instance cities and states have sued oil and gas giants for damages caused by their contributions to climate change. These government entities have relied on legal causes of action such as public nuisance, negligence, and failure to warn to recover costs for negative climate impacts—such as sea-level rise, increased flooding, more extreme storms, coastal erosion, and other harms to infrastructure, property, and public resources—resulting from greenhouse gas emissions. Rhode Island’s lawsuit, for example, accuses companies of deliberately concealing that their products produced and marketed fossil fuels while hiding the known hazards of those fuels, which have contributed to increases in sea level, flooding, and droughts.

In the past, gas companies have turned to federal preemption of state law as a defense—a defense that could be weakened if the 2009 Endangerment Finding is rescinded. Because the Clean Air Act, together with the EPA’s Endangerment Finding, gave the EPA the authority to regulate greenhouse gas emissions, gas companies argued that the regulatory field was already occupied by federal law, leaving no role for tort liability for greenhouse gas emissions in state court. The defense succeeded in the landmark case of American Electric Power Co., Inc. v. Connecticut, where the United States Supreme Court held that tort liability is preempted by federal law when those claims conflict with the regulatory field governed by the Clean Air Act. In particular, since the Clean Air Act regulates greenhouse gas emissions, some tort claims aiming to hold companies accountable for those emissions necessarily conflict with the act. Without the 2009 Findings, however, the statutory basis giving the EPA authority to regulate greenhouse gas emissions would be removed, meaning that the regulatory field occupied by the Clean Air Act may no longer exist. Thus, the preemption defense that companies rely on could collapse, widening the door for state-law tort claims seeking to hold polluters accountable.

A first-of-its-kind wrongful death lawsuit: Leon v. Exxon Mobil Corp, could test this new frontier. As opposed to previous lawsuits, which sought to hold companies liable for damage to the environment, the plaintiff seeks to hold Exxon and other gas giants liable for personal injuries caused by climate change. The complaint ties the plaintiff’s death to an extreme heat wave caused by the companies’ substantial contributions to climate change, seeking monetary damages from the companies under several causes of action: wrongful death, failure to warn, and public nuisance.

The EPA’s proposal to withdraw its 2009 Endangerment Finding may shift climate accountability toward state-law tort claims. Government entities have brought these claims against gas giants before, relying on causes of action such as public nuisance and failure to warn. These claims have in part been blocked by a field preemption defense which recognizes that the Clean Air Act governs greenhouse gas emissions based on the EPA’s 2009 Endangerment Finding. If the EPA successfully rescinds the finding, companies could be prevented from using the federal regulation to argue the field is completely governed by federal law, possibly allowing more state law claims to be successful.