By Peyton Torgan, ELR Staffer, Class of 2027<\/p>\n\n\n\n
This past July, the EPA released a proposal<\/a> to rescind its 2009 Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act<\/a>, which is the source of the EPA\u2019s authority to regulate greenhouse gases as dangerous pollutants under the Clean Air Act<\/a>. Specifically, the EPA found that six<\/a> greenhouse gases in the atmosphere\u2014carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride\u2014threaten 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 \u201cfindings\u201d would leave a major gap in the nation\u2019s climate governance.<\/p>\n\n\n\n If the EPA rescinds its 2009 findings, climate advocates may look to tort law to hold polluters liable\u2014as they have done in the past. For instance cities and states have sued oil and gas giants<\/a> 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\u2014such as sea-level rise, increased flooding, more extreme storms, coastal erosion, and other harms to infrastructure, property, and public resources\u2014resulting from greenhouse gas emissions. Rhode Island\u2019s lawsuit<\/a>, 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.<\/p>\n\n\n\n In the past, gas companies have turned to federal preemption of state law as a defense\u2014a defense that could be weakened if the 2009 Endangerment Finding is rescinded. Because the Clean Air Act, together with the EPA\u2019s 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<\/a>, 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.<\/p>\n\n\n\n