AMERICAN ELECTRIC POWER CO., INC. v. CONNECTICUT

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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SUPREME COURT OF THE UNITED STATES
_________________

No. 10–174

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AMERICAN ELECTRIC POWER COMPANY, INC.,

ET AL., PETITIONERS v. CONNECTICUT ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[June 20, 2011]

JUSTICE GINSBURG delivered the opinion of the Court.

We address in this opinion the question whether the plaintiffs (several States, the city of New York, and three private land trusts) can maintain federal common law public nuisance claims against carbon-dioxide emitters (four private power companies and the federal Tennessee Valley Authority). As relief, the plaintiffs ask for a decree setting carbon-dioxide emissions for each defendant at an initial cap, to be further reduced annually. The Clean Air Act and the Environmental Protection Agency action the Act authorizes, we hold, displace the claims the plaintiffs seek to pursue.

I

In Massachusetts v. EPA, 549 U. S. 497 (2007), this Court held that the Clean Air Act, 42 U. S. C. §7401 et seq., authorizes federal regulation of emissions of carbon dioxide and other greenhouse gases. “[N]aturally present in the atmosphere and . . . also emitted by human activities,” greenhouse gases are so named because they “trap . . . heat that would otherwise escape from the [Earth’s] atmosphere, and thus form the greenhouse effect that helps keep the Earth warm enough for life.” 74 Fed. Reg. 66499 (2009).1 Massachusetts held that the Environmental Protection Agency (EPA) had misread the Clean Air Act when it denied a rulemaking petition seeking controls on greenhouse gas emissions from new motor vehicles. 549 U. S., at 510–511. Greenhouse gases, we determined, qualify as “air pollutant[s]” within the meaning of the governing Clean Air Act provision, id., at 528– 529 (quoting §7602(g)); they are therefore within EPA’s regulatory ken. Because EPA had authority to set greenhouse gas emission standards and had offered no “reasoned explanation” for failing to do so, we concluded that the agency had not acted “in accordance with law” when it denied the requested rulemaking. Id., at 534–535 (quoting §7607(d)(9)(A)).

Responding to our decision in Massachusetts, EPA undertook greenhouse gas regulation. In December 2009, the agency concluded that greenhouse gas emissions from motor vehicles “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare,” the Act’s regulatory trigger. §7521(a)(1); 74 Fed. Reg. 66496. The agency observed that “atmospheric greenhouse gas concentrations are now at elevated and essentially unprecedented levels,” almost entirely “due to anthropogenic emissions,” id., at 66517; mean global temperatures, the agency continued, demonstrate an “unambiguous warming trend over the last 100 years,” and particularly “over the past 30 years,” ibid. Acknowledging that not all scientists agreed on the causes and consequences of the rise in global temperatures, id., at 66506, 66518, 66523–66524, EPA concluded that “compelling” evidence supported the “attribution of observed climate change to anthropogenic” emissions of greenhouse gases, id., at 66518. Consequent dangers of greenhouse gas emissions, EPA determined, included increases in heat-related deaths; coastal inundation and erosion caused by melting icecaps and rising sea levels; more frequent and intense hurricanes, floods, and other “extreme weather events” that cause death and destroy infrastructure; drought due to reductions in mountain snowpack and shifting precipitation patterns; destruction of ecosystems supporting animals and plants; and potentially “significant disruptions” of food production. Id., at 66524– 66535.2

EPA and the Department of Transportation subsequently issued a joint final rule regulating emissions from light-duty vehicles, see 75 Fed. Reg. 25324 (2010), and initiated a joint rulemaking covering medium- and heavyduty vehicles, see id., at 74152. EPA also began phasing in requirements that new or modified “[m]ajor [greenhouse gas] emitting facilities” use the “best available control technology.” §7475(a)(4); 75 Fed. Reg. 31520–31521. Finally, EPA commenced a rulemaking under §111 of the Act, 42 U. S. C. §7411, to set limits on greenhouse gas emissions from new, modified, and existing fossil-fuel fired power plants. Pursuant to a settlement finalized in March 2011, EPA has committed to issuing a proposed rule by July 2011, and a final rule by May 2012. See 75 Fed. Reg. 82392; Reply Brief for Tennessee Valley Authority 18.

II

The lawsuits we consider here began well before EPA initiated the efforts to regulate greenhouse gases just described. In July 2004, two groups of plaintiffs filed separate complaints in the Southern District of New York against the same five major electric power companies. The first group of plaintiffs included eight States3 and New York City, the second joined three nonprofit land trusts4; both groups are respondents here. The defendants, now petitioners, are four private companies5 and the Tennessee Valley Authority, a federally owned corporation that operates fossil-fuel fired power plants in several States. According to the complaints, the defendants “are the five largest emitters of carbon dioxide in the United States.” App. 57, 118. Their collective annual emissions of 650 million tons constitute 25 percent of emissions from the domestic electric power sector, 10 percent of emissions from all domestic human activities, ibid., and 2.5 percent of all anthropogenic emissions worldwide, App. to Pet. for Cert. 72a.

By contributing to global warming, the plaintiffs asserted, the defendants’ carbon-dioxide emissions created a “substantial and unreasonable interference with public rights,” in violation of the federal common law of interstate nuisance, or, in the alternative, of state tort law. App. 103–105, 145–147. The States and New York City alleged that public lands, infrastructure, and health were at risk from climate change. App. 88–93. The trusts urged that climate change would destroy habitats for animals and rare species of trees and plants on land the trusts owned and conserved. App. 139–145. All plaintiffs sought injunctive relief requiring each defendant “to cap its carbon dioxide emissions and then reduce them by a specified percentage each year for at least a decade.” App. 110, 153.

The District Court dismissed both suits as presenting non-justiciable political questions, citing Baker v. Carr, 369 U. S. 186 (1962), but the Second Circuit reversed, 582 F. 3d 309 (2009). On the threshold questions, the Court of Appeals held that the suits were not barred by the political question doctrine, id., at 332, and that the plaintiffs had adequately alleged Article III standing, id., at 349.

Turning to the merits, the Second Circuit held that all plaintiffs had stated a claim under the “federal common law of nuisance.” Id., at 358, 371. For this determination, the court relied dominantly on a series of this Court’s decisions holding that States may maintain suits to abate air and water pollution produced by other States or by outof-state industry. Id., at 350–351; see, e.g., Illinois v. Milwaukee, 406 U. S. 91, 93, (1972) (Milwaukee I) (recognizing right of Illinois to sue in federal district court to abate discharge of sewage into Lake Michigan).

The Court of Appeals further determined that the Clean Air Act did not “displace” federal common law. In Milwaukee v. Illinois, 451 U. S. 304, 316–319 (1981) (Milwaukee II), this Court held that Congress had displaced the federal common law right of action recognized in Milwaukee I by adopting amendments to the Clean Water Act, 33 U. S. C. §1251 et seq. That legislation installed an allencompassing regulatory program, supervised by an expert administrative agency, to deal comprehensively with interstate water pollution. The legislation itself prohibited the discharge of pollutants into the waters of the United States without a permit from a proper permitting authority. Milwaukee II, 451 U. S., at 310–311 (citing §1311). At the time of the Second Circuit’s decision, by contrast, EPA had not yet promulgated any rule regulating greenhouse gases, a fact the court thought dispositive. 582 F. 3d, at 379–381. “Until EPA completes the rulemaking process,” the court reasoned, “we cannot speculate as to whether the hypothetical regulation of greenhouse gases under the Clean Air Act would in fact ‘spea[k] directly’ to the ‘particular issue’ raised here by Plaintiffs.” Id., at 380.

We granted certiorari. 562 U. S. ___ (2010).

III

The petitioners contend that the federal courts lack authority to adjudicate this case. Four members of the Court would hold that at least some plaintiffs have Article III standing under Massachusetts, which permitted a State to challenge EPA’s refusal to regulate greenhouse gas emissions, 549 U. S., at 520–526; and, further, that no other threshold obstacle bars review.6 Four members of the Court, adhering to a dissenting opinion in Massachusetts, 549 U. S., at 535, or regarding that decision as distinguishable, would hold that none of the plaintiffs have Article III standing. We therefore affirm, by an equally divided Court, the Second Circuit’s exercise of jurisdiction and proceed to the merits. See Nye v. United States, 313 U. S. 33, 44 (1941).

IV

A

“There is no federal general common law,” Erie R. Co. v. Tompkins, 304 U. S. 64, 78 (1938), famously recognized. In the wake of Erie, however, a keener understanding developed. See generally Friendly, In Praise of Erie—And of the New Federal Common Law, 39 N. Y. U. L. Rev. 383 (1964). Erie “le[ft] to the states what ought be left to them,” id., at 405, and thus required “federal courts [to] follow state decisions on matters of substantive law appropriately cognizable by the states,” id., at 422. Erie also sparked “the emergence of a federal decisional law in areas of national concern.” Id., at 405. The “new” federal common law addresses “subjects within national legislative power where Congress has so directed” or where the basic scheme of the Constitution so demands. Id., at 408, n. 119, 421–422. Environmental protection is undoubtedly an area “within national legislative power,” one in which federal courts may fill in “statutory interstices,” and, if necessary, even “fashion federal law.” Id., at 421–422. As the Court stated in Milwaukee I: “When we deal with air and water in their ambient or interstate aspects, there is a federal common law.” 406 U. S., at 103.

Decisions of this Court predating Erie, but compatible with the distinction emerging from that decision between “general common law” and “specialized federal common law,” Friendly, supra, at 405, have approved federal common law suits brought by one State to abate pollution emanating from another State. See, e.g., Missouri v. Illinois, 180 U. S. 208, 241–243 (1901) (permitting suit by Missouri to enjoin Chicago from discharging untreated sewage into interstate waters); New Jersey v. City of New York, 283 U. S. 473, 477, 481–483 (1931) (ordering New York City to stop dumping garbage off New Jersey coast); Georgia v. Tennessee Copper Co., 240 U. S. 650 (1916) (ordering private copper companies to curtail sulfurdioxide discharges in Tennessee that caused harm in Georgia). See also Milwaukee I, 406 U. S., at 107 (postErie decision upholding suit by Illinois to abate sewage discharges into Lake Michigan). The plaintiffs contend that their right to maintain this suit follows inexorably from that line of decisions.

Recognition that a subject is meet for federal law governance, however, does not necessarily mean that federal courts should create the controlling law. Absent a demonstrated need for a federal rule of decision, the Court has taken “the prudent course” of “adopt[ing] the readymade body of state law as the federal rule of decision until Congress strikes a different accommodation.” United States v. Kimbell Foods, Inc., 440 U. S. 715, 740 (1979); see Bank of America Nat. Trust & Sav. Assn. v. Parnell, 352 U. S. 29, 32–34 (1956). And where, as here, borrowing the law of a particular State would be inappropriate, the Court remains mindful that it does not have creative power akin to that vested in Congress. See Missouri v. Illinois, 200 U. S. 496, 519 (1906) (“fact that this court must decide does not mean, of course, that it takes the place of a legislature”); cf. United States v. Standard Oil Co. of Cal., 332 U. S. 301, 308, 314 (1947) (holding that federal law determines whether Government could secure indemnity from a company whose truck injured a United States soldier, but declining to impose such an indemnity absent action by Congress, “the primary and most often the exclusive arbiter of federal fiscal affairs”).

In the cases on which the plaintiffs heavily rely, States were permitted to sue to challenge activity harmful to their citizens’ health and welfare. We have not yet decided whether private citizens (here, the land trusts) or political subdivisions (New York City) of a State may invoke the federal common law of nuisance to abate out-ofstate pollution. Nor have we ever held that a State may sue to abate any and all manner of pollution originating outside its borders.

The defendants argue that considerations of scale and complexity distinguish global warming from the more bounded pollution giving rise to past federal nuisance suits. Greenhouse gases once emitted “become well mixed in the atmosphere,” 74 Fed. Reg. 66514; emissions in New Jersey may contribute no more to flooding in New York than emissions in China. Cf. Brief for Petitioners 18–19. The plaintiffs, on the other hand, contend that an equitable remedy against the largest emitters of carbon dioxide in the United States is in order and not beyond judicial competence. See Brief for Respondents Open Space Institute et al. 32–35. And we have recognized that public nuisance law, like common law generally, adapts to changing scientific and factual circumstances. Missouri, 200 U. S., at 522 (adjudicating claim though it did not concern “nuisance of the simple kind that was known to the older common law”); see also D’Oench, Duhme & Co. v. FDIC, 315 U. S. 447, 472 (1942) (Jackson, J., concurring) (“federal courts are free to apply the traditional common-law technique of decision” when fashioning federal common law).

We need not address the parties’ dispute in this regard. For it is an academic question whether, in the absence of the Clean Air Act and the EPA actions the Act authorizes, the plaintiffs could state a federal common law claim for curtailment of greenhouse gas emissions because of their contribution to global warming. Any such claim would be displaced by the federal legislation authorizing EPA to regulate carbon-dioxide emissions.

B

“[W]hen Congress addresses a question previously governed by a decision rested on federal common law,” the Court has explained, “the need for such an unusual exercise of law-making by federal courts disappears.” Milwaukee II, 451 U. S., at 314 (holding that amendments to the Clean Water Act displaced the nuisance claim recognized in Milwaukee I). Legislative displacement of federal common law does not require the “same sort of evidence of a clear and manifest [congressional] purpose” demanded for preemption of state law. Id., at 317. “ ‘[D]ue regard for the presuppositions of our embracing federal system . . . as a promoter of democracy,’ ” id., at 316 (quoting San Diego Building Trades Council v. Garmon, 359 U. S. 236, 243 (1959)), does not enter the calculus, for it is primarily the office of Congress, not the federal courts, to prescribe national policy in areas of special federal interest. TVA v. Hill, 437 U. S. 153, 194 (1978). The test for whether congressional legislation excludes the declaration of federal common law is simply whether the statute “speak[s] directly to [the] question” at issue. Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 625 (1978); see Milwaukee II, 451 U. S., at 315; County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226, 236–237 (1985).

We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants. Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act. 549 U. S., at 528–529. And we think it equally plain that the Act “speaks directly” to emissions of carbon dioxide from the defendants’ plants.

Section 111 of the Act directs the EPA Administrator to list “categories of stationary sources” that “in [her] judgment . . . caus[e], or contribut[e] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” §7411(b)(1)(A). Once EPA lists a category, the agency must establish standards of performance for emission of pollutants from new or modified sources within that category. §7411(b)(1)(B); see also §7411(a)(2). And, most relevant here, §7411(d) then requires regulation of existing sources within the same category.7 For existing sources, EPA issues emissions guidelines, see 40 C. F. R. §60.22, .23 (2009); in compliance with those guidelines and subject to federal oversight, the States then issue performance standards for stationary sources within their jurisdiction, §7411(d)(1).

The Act provides multiple avenues for enforcement. See County of Oneida, 470 U. S., at 237–239 (reach of remedial provisions is important to determination whether statute displaces federal common law). EPA may delegate implementation and enforcement authority to the States, §7411(c)(1), (d)(1), but the agency retains the power to inspect and monitor regulated sources, to impose administrative penalties for noncompliance, and to commence civil actions against polluters in federal court. §§7411(c)(2), (d)(2), 7413, 7414. In specified circumstances, the Act imposes criminal penalties on any person who knowingly violates emissions standards issued under §7411. See §7413(c). And the Act provides for private enforcement. If States (or EPA) fail to enforce emissions limits against regulated sources, the Act permits “any person” to bring a civil enforcement action in federal court. §7604(a).

If EPA does not set emissions limits for a particular pollutant or source of pollution, States and private parties may petition for a rulemaking on the matter, and EPA’s response will be reviewable in federal court. See §7607(b)(1); Massachusetts, 549 U. S., at 516–517, 529. As earlier noted, see supra, at 3, EPA is currently engaged in a §7411 rulemaking to set standards for greenhouse gas emissions from fossil-fuel fired power plants. To settle litigation brought under §7607(b) by a group that included the majority of the plaintiffs in this very case, the agency agreed to complete that rulemaking by May 2012. 75 Fed. Reg. 82392. The Act itself thus provides a means to seek limits on emissions of carbon dioxide from domestic power plants—the same relief the plaintiffs seek by invoking federal common law. We see no room for a parallel track. C

The plaintiffs argue, as the Second Circuit held, that federal common law is not displaced until EPA actually exercises its regulatory authority, i.e., until it sets standards governing emissions from the defendants’ plants. We disagree.

The sewage discharges at issue in Milwaukee II, we do not overlook, were subject to effluent limits set by EPA; under the displacing statute, “[e]very point source discharge” of water pollution was “prohibited unless covered by a permit.” 451 U. S., at 318–320 (emphasis deleted). As Milwaukee II made clear, however, the relevant question for purposes of displacement is “whether the field has been occupied, not whether it has been occupied in a particular manner.” Id., at 324. Of necessity, Congress selects different regulatory regimes to address different problems. Congress could hardly preemptively prohibit every discharge of carbon dioxide unless covered by a permit. After all, we each emit carbon dioxide merely by breathing.

The Clean Air Act is no less an exercise of the legislature’s “considered judgment” concerning the regulation of air pollution because it permits emissions until EPA acts. See Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1, 22, n. 32 (1981) (finding displacement although Congress “allowed some continued dumping of sludge” prior to a certain date). The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law. Indeed, were EPA to decline to regulate carbon-dioxide emissions altogether at the conclusion of its ongoing §7411 rulemaking, the federal courts would have no warrant to employ the federal common law of nuisance to upset the agency’s expert determination.

EPA’s judgment, we hasten to add, would not escape judicial review. Federal courts, we earlier observed, see supra, at 11, can review agency action (or a final rule declining to take action) to ensure compliance with the statute Congress enacted. As we have noted, see supra, at 10, the Clean Air Act directs EPA to establish emissions standards for categories of stationary sources that, “in [the Administrator’s] judgment,” “caus[e], or contribut[e] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” §7411(b)(1)(A).

“[T]he use of the word ‘judgment,’ ” we explained in Massachusetts, “is not a roving license to ignore the statutory text.” 549 U. S., at 533. “It is but a direction to exercise discretion within defined statutory limits.” Ibid. EPA may not decline to regulate carbondioxide emissions from power plants if refusal to act would be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” §7607(d)(9)(A). If the plaintiffs in this case are dissatisfied with the outcome of EPA’s forthcoming rulemaking, their recourse under federal law is to seek Court of Appeals review, and, ultimately, to petition for certiorari in this Court.

Indeed, this prescribed order of decisionmaking—the first decider under the Act is the expert administrative agency, the second, federal judges—is yet another reason to resist setting emissions standards by judicial decree under federal tort law. The appropriate amount of regulation in any particular greenhouse gas-producing sector cannot be prescribed in a vacuum: as with other questions of national or international policy, informed assessment of competing interests is required. Along with the environmental benefit potentially achievable, our Nation’s energy needs and the possibility of economic disruption must weigh in the balance.

The Clean Air Act entrusts such complex balancing to EPA in the first instance, in combination with state regulators. Each “standard of performance” EPA sets must “tak[e] into account the cost of achieving [emissions] reduction and any nonair quality health and environmental impact and energy requirements.” §7411(a)(1), (b)(1)(B), (d)(1); see also 40 C. F. R. §60.24(f) (EPA may permit state plans to deviate from generally applicable emissions standards upon demonstration that costs are “[u]nreasonable”). EPA may “distinguish among classes, types, and sizes” of stationary sources in apportioning responsibility for emissions reductions. §7411(b)(2), (d); see also 40 C. F. R. §60.22(b)(5). And the agency may waive compliance with emission limits to permit a facility to test drive an “innovative technological system” that has “not [yet] been adequately demonstrated.” §7411(j)(1)(A). The Act envisions extensive cooperation between federal and state authorities, see §7401(a), (b), generally permitting each State to take the first cut at determining how best to achieve EPA emissions standards within its domain, see §7411(c)(1), (d)(1)–(2).

It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. See generally Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 865–866 (1984). Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present. Moreover, federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court.

Notwithstanding these disabilities, the plaintiffs propose that individual federal judges determine, in the first instance, what amount of carbon-dioxide emissions is “unreasonable,” App. 103, 145, and then decide what level of reduction is “practical, feasible and economically viable,” App. 58, 119. These determinations would be made for the defendants named in the two lawsuits launched by the plaintiffs. Similar suits could be mounted, counsel for the States and New York City estimated, against “thousands or hundreds or tens” of other defendants fitting the description “large contributors” to carbon-dioxide emissions. Tr. of Oral Arg. 57.

The judgments the plaintiffs would commit to federal judges, in suits that could be filed in any federal district, cannot be reconciled with the decisionmaking scheme Congress enacted. The Second Circuit erred, we hold, in ruling that federal judges may set limits on greenhouse gas emissions in face of a law empowering EPA to set the same limits, subject to judicial review only to ensure against action “arbitrary, capricious, . . . or otherwise not in accordance with law.” §7607(d)(9).

V

The plaintiffs also sought relief under state law, in particular, the law of each State where the defendants operate power plants. See App. 105, 147. The Second Circuit did not reach the state law claims because it held that federal common law governed. 582 F. 3d, at 392; see International Paper Co. v. Ouellette, 479 U. S. 481, 488 (1987) (if a case “should be resolved by reference to federal common law[,] . . . state common law [is] preempted”). In light of our holding that the Clean Air Act displaces federal common law, the availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the federal Act. Id., at 489, 491, 497 (holding that the Clean Water Act does not preclude aggrieved individuals from bringing a “nuisance claim pursuant to the law of the source State”). None of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand.

* * *

For the reasons stated, we reverse the judgment of the Second Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered.

JUSTICE SOTOMAYOR took no part in the consideration or decision of this case.

1 In addition to carbon dioxide, the primary greenhouse gases emitted by human activities include methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. 74 Fed. Reg. 66499.

2 For views opposing EPA’s, see, e.g., Dawidoff, The Civil Heretic, N. Y. Times Magazine 32 (March 29, 2009). The Court, we caution, endorses no particular view of the complicated issues related to carbondioxide emissions and climate change.

3 California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin, although New Jersey and Wisconsin are no longer participating. Brief for Respondents Connecticut et al. 3, n. 1.

4 Open Space Institute, Inc., Open Space Conservancy, Inc., and Audubon Society of New Hampshire.

5 American Electric Power Company, Inc. (and a wholly owned subsidiary), Southern Company, Xcel Energy Inc., and Cinergy Corporation.

6 In addition to renewing the political question argument made below, the petitioners now assert an additional threshold obstacle: They seek dismissal because of a “prudential” bar to the adjudication of generalized grievances, purportedly distinct from Article III’s bar. See Brief for Tennessee Valley Authority 14–24; Brief for Petitioners 30–31.

7 There is an exception: EPA may not employ §7411(d) if existing stationary sources of the pollutant in question are regulated under the national ambient air quality standard program, §§7408–7410, or the “hazardous air pollutants” program, §7412. See §7411(d)(1).

Opinion of ALITO, J.

SUPREME COURT OF THE UNITED STATES
_________________

No. 10–174

_________________

AMERICAN ELECTRIC POWER COMPANY, INC.,

ET AL., PETITIONERS v. CONNECTICUT ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[June 20, 2011]

JUSTICE ALITO, with whom JUSTICE THOMAS joins, concurring in part and concurring in the judgment.

I concur in the judgment, and I agree with the Court’s displacement analysis on the assumption (which I make for the sake of argument because no party contends otherwise) that the interpretation of the Clean Air Act, 42 U. S. C. §7401 et seq., adopted by the majority in Massachusetts v. EPA, 549 U. S. 497 (2007), is correct.

Print this transcript Transcript: 

ORAL ARGUMENT OF PETER D. KEISLER ON BEHALF OF THE PETITIONERS

Chief Justice John G. Roberts: We'll hear argument today in Case 10-174, American Electric Power Company v. Connecticut, et al.--

Mr. Keisler.

Mr. Keisler: Mr. Chief Justice and may it please the Court:

This is a case in which the courts are being asked to perform a legislative and regulatory function in a matter in which the necessary balancing of contending policy interests is among the most complex, multifaceted, and consequential of any policy issue now before the country.

The States ask that the courts assess liability and design a new common law remedy for contributing to climate change, and to do so by applying a general standard of reasonableness to determine for each defendant, in this case and in future cases, what, if any, its share of global reductions in greenhouse gas emissions ought to be.

That would require the courts not to interpret and enforce the policy choices placed into law by the other branches, but to make those policy choices themselves.

And all of our arguments here -- that plaintiffs lack standing, that the Federal common law shouldn't be expanded to include this new cause of action, and that the case presents nonjusticiable political questions -- while all of them represent distinct points, All of them flow from the same basic separation of powers principles that establish, we believe, that the case ought to be dismissed.

Chief Justice John G. Roberts: I think that's--

Mr. Keisler: Now, all of these issues--

Chief Justice John G. Roberts: --That's exactly one thing that's concerned me.

They do all flow from the same basic argument, and I'm concerned why you think we should focus on prudential standing, basically, which cuts off our jurisdiction at our own whim, as opposed to dealing with this on the merits.

Mr. Keisler: --Well--

Chief Justice John G. Roberts: In either case, your argument is that this is too generalized for the Court to -- to address.

Mr. Keisler: --Mr. Chief Justice, our principal argument has not been prudential standing.

The government has focused on the prudential standing argument.

We join that and we'd be happy to see the case resolved on that basis, but our principal argument on standing has been Article III standing.

And we actually believe that the Court could resolve this case and address the issues in any order, with one possible exception, which is that we do read the Court's decision in Steel Co. as holding that the Court has to address Article III standing before reaching the question whether there's a valid cause of action.

Justice Antonin Scalia: Mr. Keisler, what -- what good does it do you to have this Court say that there is no Article III standing?

The suit will just be brought in State court--

Mr. Keisler: Well--

Justice Antonin Scalia: --under State common law and -- and the States' rules of standing are not ours.

Mr. Keisler: --Well, many States, Your Honor, have similar doctrines of standing, similar doctrines of political questions.

Justice Antonin Scalia: They only need one.

Mr. Keisler: Well, in any event, Your Honor, we believe we would have a very strong motion to dismiss in State court on a variety of grounds, including--

Justice Antonin Scalia: We're not sure about that, are we?

So we -- we -- we -- may be just spinning our wheels here.

Mr. Keisler: --Well, I don't--

Justice Antonin Scalia: Indeed, you know, tapping the case to State judges instead of Federal judges, I would frankly rather have Federal judges do it, probably.

Mr. Keisler: --Well, as I said, Your Honor, I think we would be able to defeat a State common law claim on grounds of State law, for lack of proximate cause, on standing and political question grounds that many States have that parallel these; but in any case, whichever ground the Court resolves this case on, we think it's clear that the cause of action can proceed.

Justice Anthony Kennedy: Well, if -- if you had a State court suit with a State plaintiff, wouldn't the State be able to adduce Federal common law as a ground for recovery?

And then we would get to the merits and see if there is a Federal common law cause of action.

Mr. Keisler: It's -- it's possible, Your Honor, although we think they would be more likely to proceed under State common law.

But either way, we don't think the elements of a State or Federal common law cause of action under nuisance could be met here, and we're very confident we could defeat that claim in State court as well.

Justice Anthony Kennedy: Well, we all -- we all know that you sometimes have to peek at the merits to see if there's standing.

There's a little cheating that goes on.

But -- but in this case it does seem to me that you're lacking any clear precedent.

When I think of standing, I think of Frothingham v. Mellon.

That isn't this case.

Mr. Keisler: But the Court has said in Warth v. Seldin that the plaintiff has to demonstrate that it will benefit in some tangible way from the Court's intervention.

And that's--

Justice Ruth Bader Ginsburg: If you have -- if you have the precedent of Massachusetts v. EPA and if any one plaintiff has standing, I guess that's enough.

So if you look at standing alone, it seems to me the States would have standing on the same basis that Massachusetts had standing.

Mr. Keisler: --Justice Ginsburg, we believe that Massachusetts was very carefully qualified to focus on the particular regulatory context of that opinion.

The Court said that it was addressing standing to challenge the denial of a petition for rulemaking, when the agency would be proceeding incrementally to address a broader problem, and a statute specifically gave the petitioners the right to seek that kind of incremental protection.

The Court was very specific about that.

The statutory right was of critical importance, it said, to the standing inquiry.

Justice Elena Kagan: Mr. Keisler, the Court did say that, but it's cut off from the Court's actual analysis in the case.

When the Court goes through injury and causation and redressability, the Court never refers to the statutory cause of action.

Mr. Keisler: But it does, Justice Kagan, specifically refer to the regulatory context in which the case is taking place.

The Court said that if the EPA's arguments there about traceability and redressability were adopted, it would doom most challenges to agency action because agencies proceed incrementally.

Here we have no statute, we have no agency proceeding incrementally, and we believe there is no basis for the plaintiffs to seek that kind of incremental relief when they've acknowledged that will have no material effect on their injury; and they acknowledged that in the State's complaint when they specifically said that the relief they seek here would only constitute these defendants' share of the larger overall emissions reductions that would be necessary in order to have any material effect on climate change or the injuries that they assert.

That is an acknowledgment that the relief they seek here would not provide them any redress except in connection with other reductions that would be obtained elsewhere, and that we think means that this is a classic case in which the injuries are not the product of the defendants' conduct but of the collective independent actions of numerous third parties not before the Court.

Justice Elena Kagan: But the Court clearly understood that in Massachusetts v. EPA and said that it was enough, and I would think under traditional standing principles the standing there was actually harder to find because one had to go through the EPA first.

One had to say the EPA should regulate, and then the EPA would regulate, and then the question was would that reduce emissions levels?

Here the EPA is out of the picture.

The action is much more direct.

Mr. Keisler: But there, Your Honor, they were suing a defendant, the EPA, that had regulatory authority over the entire country.

Here they're suing five separate defendants, each of whom has to be evaluated individually, and there is not a single one of them against whom the relief sought would have any tangible effect on the injuries that the plaintiffs claim here.

But we also think that Massachusetts is relevant in a completely different respect, which is the Court was very specific in Massachusetts about what its role was and what it wasn't.

The Court said: We lack the expertise or the authority to second-guess the policy choices of the EPA, but its role there was to compel the agency to adhere to the statute as the Court interpreted it.

In this case, the States are asking the courts to play exactly the role that this Court disclaimed in Massachusetts v. EPA, which is to make those policy choices in the first instance, and they say that the courts can do this because the courts have done this in prior nuisance cases, but this case is nothing like any of the prior nuisance cases this Court has held.

It's nothing like an instance in which one State is complaining that another State has dumped sewage into a body of water that's crossed the border.

The case--

Chief Justice John G. Roberts: So how many States does it take?

I think, you know, if it's three States who have made that allegation, I don't know exactly how you draw the line between a case like Tennessee Copper and this case.

Mr. Keisler: --It's not a question of the quantity of plaintiffs, Mr. Chief Justice, it's the nature of the task that the Court would have to perform, and this task is different because of the global nature of the phenomenon.

Justice Anthony Kennedy: I'm more receptive to this kind of argument if I know we're going to the merits as opposed to standing--

Mr. Keisler: It -- it--

Justice Anthony Kennedy: --and I recognize that we slip in and out of the two categories, and don't want to make it difficult on you.

But I take it that these arguments also go to whether there's a cause of action on the merits.

Mr. Keisler: --Exactly, Your Honor, and whether the Court should expand the Federal common law to recognize this.

The global nature of this phenomenon makes it different because every sector of the economy worldwide produces greenhouse gases, and there is no geographic nexus, as there was in Tennessee Copper and every one of the other nuisance cases, between the source of the emission and the victim that claims the harm.

And that changes what the Court has to do.

It means that any court or policymaker thinking about how to alleviate the kinds of injuries that are pled here has to first think what is the appropriate overall level of greenhouse gas emissions in the atmosphere and then make a comparative judgment about how the reductions that would be necessary to achieve that level should be allocated among all the different sectors based on the social good that that sector produces and what reductions would mean to that social good.

Justice Ruth Bader Ginsburg: I thought your -- your first argument when you addressed this issue was there is a decisionmaker and that decisionmaker is EPA.

So you wouldn't get to even how arduous a task this would be if it was within the court's bailiwick.

I thought your position was that the function, this regulatory function, has been assigned to the EPA and not to the courts.

Mr. Keisler: We are making both arguments, Justice Ginsburg.

We don't think there would be an appropriate Federal common law cause of action even if the Clean Air Act hadn't been enacted.

But certainly the argument is even stronger and easier because of the existence of the Clean Air Act and in particular because this Court in Massachusetts v. EPA interpreted the Clean Air Act so that the term EPA the task of making precisely the determinations that plaintiffs ask the courts to make here: Do greenhouse gases endanger the public, and if so, what regulatory consequence--

Justice Antonin Scalia: Well, the EPA is given authority to regulate other pollutants, including those that do not go up into the atmosphere, but that does not prevent California, for example, from enacting stricter standards for its -- for automobiles in its State.

Mr. Keisler: --Oh, and--

Justice Antonin Scalia: So why should we say the EPA preempts the Federal common law?

Mr. Keisler: --Because this issue, and I would prefer to refer to it as displacement rather than preemption, is very different from the question of preemption of State law.

The Clean Air Act has a savings clause that preserves State authority across a variety of areas, but the Court in second Milwaukee v. Illinois cases specifically distinguished between preemption of State law and displacement of Federal common law.

It said the -- the presumption is against preemption of State law because of various concepts of State sovereignty, but because of Federal concepts of separation of powers, the presumption is in favor of lawmaking by Congress and not lawmaking by courts, and that means that the standard is very different.

It means that if Congress has addressed the problem, then Federal common law is displaced.

Justice Antonin Scalia: What's your best case?

Mr. Keisler: Milwaukee v Illinois II.

That was the case in which the Court held that the Clean Water Act displaced a Federal common law nuisance claim by Illinois against Milwaukee and specifically said because Congress had addressed the problem, Federal common law had no role to play.

Here Congress has established a process and it's a process in which the States and the private parties here can participate.

They can file petitions for rulemaking, they can appeal EPA decisions that they oppose, and it would be completely inconsistent with that process if they could also take a complete end run around it and go to court and ask courts to make the decisions that Congress has assigned to EPA.

Justice Antonin Scalia: This is a merits argument, right?

Mr. Keisler: Yes, it is a merits argument, because it says that any Federal common law action would be displaced by the Clean Air Act.

Now, the--

Justice Elena Kagan: Is the consequence of that argument, Mr. Keisler, that there in fact is no Federal common law of interstate pollution claims?

Mr. Keisler: --I don't think there is very much left of any Federal common law of interstate pollution claims, just because the field has been so heavily occupied by statutes.

You know, all the nuisance cases that the court of appeals relied on, Your Honor, they were in a completely different time.

They were at a time when the Court's view of its common law authority was extremely broad and its view of Congress's constitutional power under the Commerce Clause was very narrow.

Justice Antonin Scalia: Of course, you're going to have to struggle with the preemption question sooner or later.

You're confident you can establish not only displacement of Federal common law, but also preemption of State common law, right?

Mr. Keisler: It will ultimately depend on the state of the law at the time that such a hypothetical case is filed, but we would welcome the opportunity, Your Honor.

Justice Anthony Kennedy: Is part of the inquiry, part of the dynamic, how imminent the Federal regulation is?

Mr. Keisler: I don't think so, Justice Kennedy.

I think the question is always what Congress has done, not what the stage of the EPA rulemaking process is.

Congress, not EPA, can create or modify or destroy causes of action, and that's why the Court said in that Milwaukee 2 case that when Congress has addressed the problem that's the end of the inquiry.

And there is no question that Congress has addressed not simply the general problem, but the specific problem here.

It has the statute which assigns EPA the authority to regulate pollutants in certain ways and pollutants have been defined under Massachusetts v. EPA to include the precise greenhouse gasses that are at issue here.

There couldn't be a more specific example of Congress having addressed the problem and assigned a different approach to dealing with it than letting the courts work it out under Federal common law.

The States' and the private plaintiffs' argument is that the Federal common law will only be displaced when EPA adopts the precise regulation that provides the precise form of relief that they're asking for.

There's no case that says that and that's not the law.

Justice Ruth Bader Ginsburg: EPA couldn't give -- could EPA give that relief?

We're dealing with existing stationary sources.

We're not dealing with new or modified sources.

Mr. Keisler: We believe that the EPA can consider, as it's undertaking to do, regulating existing nonmodified sources under section 111 of the Clean Air Act, and that's the process that's engaged in now.

It's announced that it will propose standards in the summer and complete a rulemaking by May.

Obviously, at the close of that process there could be APA challenges on a variety of grounds, but we do believe that they have the authority to consider standards under section 111.

And if the Court has no questions, with the Court's permission I would like to reserve the balance of my time.

Chief Justice John G. Roberts: Thank you, Mr. Keisler.

General Katyal.

ORAL ARGUMENT OF NEAL KUMAR KATYAL, ON BEHALF OF RESPONDENT TENNESSEE VALLEY AUTHORITY, IN SUPPORT OF PETITIONERS

Mr. Katyal: Thank you, Mr. Chief Justice, and may it please the Court:

In the 222 years that this Court has been sitting, it has never heard a case with so many potential perpetrators and so many potential victims, and that quantitative difference with the past is eclipsed only by the qualitative differences presented today.

Accordingly, the Court should apply the prudential standing doctrine and hold these lawsuits not fit for judicial resolution.

The very name of the alleged nuisance, "global warming", itself tells you much of what you need to know.

There are billions of emitters of greenhouse gasses on the planet and billions of potential victims as well.

Justice Anthony Kennedy: Well, again, that just goes to the merits.

You make that argument to the district court that your injunction is meaningless, equity does not require an idle act.

End of case.

Mr. Katyal: Well, Justice Kennedy, I think it goes to both.

That is, this Court in outlining what the prudential standing doctrine is all about in, for example, Newdow has said the following at page 11:

"Without prudential standing limitations, the Court would be called upon to decide abstract questions of why public significance, even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights. "

Justice Antonin Scalia: I'll add a third thing that it goes to and that's Article III standing.

It's clear in our cases, if as you say the relief requested here will not remedy the complaint of these people, you don't have to go to prudential standing.

That it seems to me would deny Article III standing.

Mr. Katyal: Well, Justice Scalia, I think that this case is best like Newdow, in which the Court went to prudential standing first before Article III.

And the reason for that is because this court in Massachusetts v. EPA, in analyzing the redressability prong of what you're asking said that the reductions that were sought there, if granted, would, quote, "slow or reduce the problem".

Justice Anthony Kennedy: Well, I'll think about it, but Newdow was a case where we thought that this particular litigant was not directly injured.

Here the State said it's directly injured.

That's the distinction.

Justice Ruth Bader Ginsburg: More than that, Newdow was a case of a father trying to assert a right on behalf of a child, and the child herself did not want that right nor did her mother.

So it seems to me it's worlds apart, and when you describe prudential standing as involving generalized grievance, I thought that the generalized grievance was Article III.

I thought that's what Mrs. Frothingham's case was about; it was a grievance that she shared with everybody in the populations, so she didn't have standing.

Mr. Katyal: Justice Ginsburg, we're not here saying that this case follows inexorably, inexorably from the facts of Newdow or, frankly, from any case that this Court has decided.

There is no case in the 222 years that announces the precise rule we're seeking here, and the reason is because you have never heard a case like this before involving the quantity and quality of the claims sought here, the--

Justice Elena Kagan: But it seems, General Katyal, that there also is no case where we've ever used this language of generalized grievance as a prudential matter rather than as an Article III matter.

So am I wrong about that?

Mr. Katyal: --Well, I think that this Court has in Newdow and in Warth v. Seldin used the language of generalized grievances to reflect prudential considerations.

Justice Elena Kagan: But Newdow -- Newdow quoted the language of generalized grievance that came from Warth, but it didn't specifically pin anything on that language.

Mr. Katyal: I quite agree with you, Justice Kagan.

This is not like a case in which the government is announcing some rule of standing that requires the Court to, for example, call into question previous precedents of this Court that reached the merits or something like that.

It's that this Court has never had a case involving this scale and scope, and we think that the prudential standing doctrine, at least in a circumstance like this, which is a Federal common law cause of action in which the Court is already being asked to fashion the rules and, as Justice Scalia says, an equitable action in which the Court has I think special abilities to fashion relief if appropriate and not -- I think prudential standing reflects best the kind of tapestry of different factors.

Justice Elena Kagan: Well, General Katyal, how about the Aiken case, because in the Aiken case I think the government came in and made the same argument, that even though the injury was concrete, it was too generalized and therefore there should be no standing, the Court specifically rejected that argument both as to Article III and as to prudential standing.

Mr. Katyal: Right, and I think Aiken says that the prudential standing cases thus far have been about has concrete injury been shown to a particular person.

And we're not disputing that for purposes of Article III concrete injury has been shown to at least one plaintiff, but we think that--

Justice Ruth Bader Ginsburg: To that extent you disagree with Mr. Keisler because he says there is no Article III?

Mr. Katyal: --That is absolutely correct, we do disagree to that extent.

We think that prudential standing best reflects the Court's general intuition in this area that when a problem is of this magnitude and literally involving the world, where everyone is a potential perpetrator, everyone is a potential victim, and where their own theory at page 15 of their brief and 32 and 40 states:

"If someone contributes one drop to the nuisance, they can be sued. "

Chief Justice John G. Roberts: Counsel, you don't usually -- your phrase is exactly what bothers me.

We don't usually base a decision on our general intuition, and the idea of prudential standing that we have jurisdiction of the case but we're not going to decide it is contrary to Chief Justice Marshall's famous line that if we don't have jurisdiction, we can't decide it, but if we do, we have to decide it.

Mr. Katyal: But I think that the prudential standing doctrine generally and the zone of interest test in particular really do focus on this question, Mr. Chief Justice, about whether or not a case can be cut down to judicially manageable standards.

Chief Justice John G. Roberts: I'll give that you on the zone of interests, but there you're dealing with administrative law and a very narrow proposition.

I think it's Justice Kennedy's point, or at least the point of his questions, that these issues meld into the merits and, at least for anyone who is troubled by the idea that we are not going to decide a case even though we have jurisdiction to decide it, maybe that's the better place to address it.

Mr. Katyal: I'll move to that and take your invitation, Mr. Chief Justice.

But before doing so, I would say that if you're going to give me administrative law and zone of interest I think you should then give me Federal common law, which this Court is at its height in terms of fashioning who can come into court and what those rules may be.

Justice Antonin Scalia: I don't understand why you assert that the remedy here will not provide the relief -- you acknowledge that, don't you, that the remedy here cannot possibly stop global warming, right?

Mr. Katyal: We acknowledge that the relief that they are seeking looks like the relief in Massachusetts v. EPA, which is that it would, if the Court--

Justice Antonin Scalia: It does?

It does?

In Massachusetts v. EPA the relief was allowing a Federal agency to regulate the entire society's carbon emissions.

Mr. Katyal: --Justice Scalia, that isn't what the Court said.

What the Court said is that it would allow regulation in the transportation sector, which would be approximately 1.7 billion tons, and here they are saying 650 million tons.

And so, I agree it's less, but I think that the -- and one can criticize the reasoning in the majority, but if that -- that is the rule of this Court, and I think that as long as a slowing or reduction--

Justice Antonin Scalia: Do you think -- do you think that was the holding of Massachusetts v. EPA, that EPA can only regulate the transportation section?

Mr. Katyal: --That is what the Court based its redressability analysis on.

Justice Antonin Scalia: Is that the holding of the case and -- and do you think the -- the -- the forthcoming EPA rules can only govern transportation?

Mr. Katyal: Of course not.

I'm just saying that the--

Justice Antonin Scalia: Of course not.

Of course the case covers--

Mr. Katyal: --But I am talking--

Justice Antonin Scalia: --what the EPA could do.

Mr. Katyal: --Right.

And I'm just talking about the redressability part of the analysis, Justice Scalia.

For that the Court said that this reduction in the transportation sector was sufficient.

If I could take the Mr. -- the Chief Justice's invitation to address displacement at this time.

We believe that we meet the State's own test for displacement, which is found at page 46 of their brief, which is:

"A Federal common law nuisance claim is displaced when a Federal statute or regulatory action addresses the nuisance. "

And here you have not just the Clean Air Act, you have the Clean Air Act plus, a cascade of a number of different actions taken after, Justice Scalia, the opinion in Massachusetts v. EPA.

Justice Samuel Alito: At what point in this -- in what point in this cascade did the displacement occur?

Mr. Katyal: We think that the Court doesn't really need to get into it.

And for the -- the reason is this: Displacement actions are extremely rare, Federal common law actions are rare, so we don't think you should announce some sort of general standard for when displacement occurs.

It's a more case-by-case situation.

Here you have undoubted evidence that it occurred -- that it has occurred because of a number of different things.

Justice Samuel Alito: We don't know what EPA may do down the road, we don't know what Congress may do down the road.

So don't we have to have some idea about when this takes place in order so that this precedent may--

Mr. Katyal: Certainly--

Justice Samuel Alito: --be applied to the future course of conduct?

Mr. Katyal: --Certainly, Justice Alito, I think it's appropriate for the Court to look at what has -- what is happening right now.

And here's what's happening.

First, in December 2009 the EPA issued an endangerment finding, finding these greenhouse gases significant pollutants.

Justice Elena Kagan: But, General Katyal, suppose that the EPA had decided not to issue the endangerment finding.

Would your argument still apply?

Mr. Katyal: I think that that would present a difficult case, because it would be the one like the Petitioners make, which is the Clean Air Act alone.

And I think that what the States themselves acknowledge and what the language of Milwaukee II -- excuse me -- Milwaukee I says in it is that -- and this is at page 107 of the opinion:

"It may happen that new Federal laws and new Federal regulations may in time preempt the Federal common law of nuisance. "

"We think that both together presents the best and easiest case for displacement. "

and you have that here.

You have not just the endangerment finding; you have the EPA regulating all passenger cars, all light motor vehicles right now.

Justice Elena Kagan: But if I insisted you answer the hypothetical I gave you, what would the answer be?

No endangerment finding.

Is there displacement?

Mr. Katyal: I think that it's a -- it's a difficult case to make for -- for displacement, but I think it could be made, for the reasons Mr. Keisler suggests.

But I--

Chief Justice John G. Roberts: Why is it -- I don't want to make -- try to make a case for you, but why is it that much more difficult?

It's just -- I mean, it's sort of like the negative commerce clause, right?

The fact that EPA has the authority to regulate in a particular area means that the ball has passed from the courts to the agency, to the executive branch, and they've made an implicit decision not to regulate a particular question.

Mr. Katyal: --Absolutely.

I think that there's a good argument to be made.

I imagine the argument on the other side that you'll hear in a moment is that the Clean Air Act doesn't look precisely like the Clean Water Act in terms of forcing the agency to decide various things.

Chief Justice John G. Roberts: I guess that would be a preemption question rather than -- rather than a displacement question.

Mr. Katyal: I think that very well may be.

And with respect to that, Mr. Chief Justice, you had asked before about State common law causes of action and whether they would be -- they would kind -- the existence of those would somehow mean that the Court should either find jurisdiction or reach the merits in a way.

And we think that the same arguments that prohibit the Court from -- from -- from recognizing a Federal common law cause of action for displacement very well may be preemption questions as well that could be addressed down the road with respect to State common law actions.

And we don't think the Court should be troubled by the existence of a potential State common law cause of action.

It's just like Milwaukee II, in which the dissenters made precisely this argument.

They said: If you don't recognize it, then the States will regulate it and it will balkanize and the like.

And what the majority said is: That's a question for down the road; the question for now is has displacement occurred?

Justice Samuel Alito: I understand that that's not the issue here, but does the government have a position on that if -- if New York law provides exactly the same public nuisance claim that is now asserted under Federal common law, would that be consistent?

Mr. Katyal: I -- I don't think we have a position at this time on that.

That's I think an enormously complicated question we can get to at an appropriate time.

Our central -- our central submission to you on displacement is this: That there is literally no precedent for the argument that they are making here, which is that the Federal Government has to regulate the precise jot and tittle, the specific relief that they are seeking before displacement occurs.

Justice Elena Kagan: Do you have a position on whether there's anything to be displaced here?

Do you have a position on whether there is, in fact, a Federal cause of action?

Mr. Katyal: Well, we think, again, the Court doesn't need to get into that question because it -- you know, the -- there are few Federal common law causes of action in the area of nuisance -- I mean, and there have been two that the Federal Government has filed since 1970 and three that we can find all together in the Federal courts of appeals, all of which have failed for various displacement reasons, and the others.

We think none of those look anything like the -- the common law cause of action here.

And, so, it would at least require this Court to extend quite dramatically Federal common law to cover this type of situation in which everyone is a potential perpetrator and everyone is a potential victim.

And it would require the Court, in fashioning relief, to think through a number of things that the Federal courts haven't ever had to grapple with from the nature--

Justice Samuel Alito: So, if there were -- if there were no Clean Air Act, you would still say that this suit, a suit like this, would -- would fail prudential standing, but you don't have a position as to whether there would be a claim under Federal common law?

Mr. Katyal: --That is correct.

We think it would still fail prudential standing because of the quantity and quality of the nature of the problem here, and the multitude of different policy judgments that would be required -- that this Court would be required to undertake to adjudicate a Federal common law cause of action in the absence of a statute.

Justice Elena Kagan: But I'm sorry, General, because I was understanding your answer differently, and maybe I misheard you, as saying that if there were no legislation here, you doubted that there was a Federal law cause of action.

Is that correct?

Mr. Katyal: I doubted that there was prudential standing.

Justice Elena Kagan: No, but as to whether the cause of action exists under Federal common law in a case like this, where you said it was so different from the other Federal common law cases that the Court has seen.

Mr. Katyal: I -- I -- I think I put it as we doubt it.

I mean, I think that it would require a dramatic extension, Justice Kagan, of a case like Tennessee Copper and the other cases that this Court has heard, which are essentially: A pollutes a river or something and hurts B.

A here is the world and B is the world, and that is such a difference in scale and scope to pose enormously difficult questions as to whether this Court should recognize such a cause of action.

Justice Anthony Kennedy: Same -- same hypothetical, assume no Federal statute, and -- and assume no Federal common law.

What about State law?

Does State common law become displaced because it's a matter of Federal concern?

We don't -- we don't -- we don't usually have preemption of Federal common law.

Mr. Katyal: Well -- well, there may be arguments, Justice Kennedy -- I'm not sure if the premise of your question has a Clean Air Act in existence or not.

There may be some sort of arguments about displacement or preemption under the Clean Air Act--

Justice Anthony Kennedy: The hypothetical is that the Federal law -- Federal statutory law doesn't apply.

Mr. Katyal: --Then I think that again for purposes of State common law, I think this Court would approach that question the same way it did in Milwaukee II, which is to say that's a really separate policy-based question that the Court doesn't use to answer the questions about whether a cause of action should be recognized or whether displacement has occurred.

But I would point out that the States that have sued generally have doctrines like prudential standing, doctrines like political question, that may very well bar the reaching of these claims in State courts as well.

Justice Anthony Kennedy: It would be very odd to say that there's no Federal common law, but also that there's no -- no displacement of State law.

That -- that seems to me odd.

Mr. Katyal: That's precisely the situation that -- that this Court was grappling with in Milwaukee II, and it said that--

Justice Ruth Bader Ginsburg: Can we get to -- to the situation that now exists?

They are seeking standards for existing sources.

I asked Mr. Keisler, and do you agree with him, this is not a -- this is not a new source or a modified source; we're talking about existing sources.

Does EPA, could EPA, regulate and set standards for existing sources?

Mr. Katyal: --Absolutely, Justice Ginsburg.

Let me say three things about that.

First is, EPA is currently regulating existing sources.

To the extent that a power plant is modified in any way to increase carbon dioxide above a certain amount -- and this is one of the so-called tailoring rules -- then those power plants right now are subject to regulation.

Indeed, one has already had to get a permit.

These regulations just went into effect in January 2011 for existing power plants that seek to modify.

Second, there is a settlement agreement in place that commits EPA by May of 2012 to deciding how and whether to regulate existing power sources, the existing stationary sources.

And third, and I think most fundamentally, there is no precedent, Justice Ginsburg, that says that the government must regulate the specific industry, the specific thing that the plaintiff isolates, in order for displacement to occur.

Rather, Sea Clammers and Milwaukee II I think make explicit that that's the wrong question.

And so long as the nuisance is being addressed -- and here the nuisance is undoubtedly being addressed with a panoply of different Federal actions in the area of global warming, and an executive order that says that fighting global warming is one of the government's highest priorities -- and concrete steps taken, such as the 500-page tailoring rule, the 400-page -- the -- the other hundreds of pages that EPA has done with its experts to appropriately regulate greenhouse gas emissions, as opposed to a Federal common law court of action doing something which would frankly put you all at sea in terms of the complexity, economics, international nature of the problem.

Justice Elena Kagan: General, could I take you back on that last point to another threshold question, which is the political question doctrine?

Because a lot of your arguments really sound like prongs two and three from Baker v. Carr, but you say that we shouldn't go there, that we should instead address this matter on prudential standing grounds.

But the political question doctrine actually seems more natural, given the kinds of arguments you're making.

So why not?

Mr. Katyal: Well, Justice Kagan, I'm not going to tarry too long on which different way we should win this case.

I think either is an appropriate way.

[Laughter]

But I think that the prudential standing doctrine is a bit narrower because it -- it contemplates a variety of factors, including the fact that this is a Federal common law cause of action where the Court is fashioning relief in the first place, as opposed to the political question doctrine which looks -- looks more to the standardless nature of the adjudication.

We agree that -- that the political question doctrine is an appropriate way to dismiss of this case, but we think that, like Newdow, like Kowalski, this Court can handle this case on prudential standing first and recognize that this is an unprecedented action involving literally the world, and it is not suited for judicial resolution, and that flows quite naturally from the precepts of the prudential standing doctrine.

Justice Ruth Bader Ginsburg: It's not an area where the Court can't go.

To take a political question we all agree on, I think, the courts can't mess with the impeachment of a president, just -- but here the Court does deal with the subject matter all the time.

It reviews decisions that the EPA has made.

Mr. Katyal: Justice Ginsburg, we quite agree, and that is why we say that if a statute were -- were announced to provide standards, that that would provide a way around the political question problem that exists in this case.

Chief Justice John G. Roberts: Thank you, General.

General Underwood.

ORAL ARGUMENT OF BARBARA D. UNDERWOOD ON BEHALF OF THE RESPONDENTS

Ms Underwood: Mr. Chief Justice, and may it please the Court:

This case rests on the longstanding fundamental authority of the States to protect their land, their natural resources, and their citizens from air pollution emitted in other States.

It rests on three propositions: One, the interests of the States are harmed by global warming; two, these defendants, as the five largest U.S. emitters of carbon dioxide, are significant contributors to it; and, three, these defendants could take reasonable, cost-effective measures to reduce their emissions in a way that would slow the effects of global warming.

We will have to prove these propositions, and after we do the district court will have to determine whether it can frame an appropriate equitable injunction.

That's what discovery and trials are for.

But this Court should not close the courthouse door to this case at the outset.

The common law action for public nuisance has been around for hundreds of years, has been adapted by courts to cover new environmental threats, and there's no reason why the courts can't do the same thing here.

The defendants say there are too many plaintiffs, too many potential defendants, and that adjudication of this case will require courts to solve the entire problem of global warming, but that is simply not so.

On the plaintiffs' side, this is about the States.

We are alleging the kind of injury to States that has been traditionally recognized by this Court; their lands, their citizens, their businesses are being injured by pollution emitted in other States.

Justice Ruth Bader Ginsburg: General Underwood, the -- the relief that you're seeking, asking a court to set standards for emissions, sounds like the kind of thing that EPA does.

I mean, Congress set up the EPA to promulgate standards for emissions, and now what -- the relief you're seeking seems to me to set up a district judge, who does not have the resources, the expertise, as a kind of super EPA.

Ms Underwood: It's not as a super EPA.

It's something much smaller.

It's a different question.

Interstate pollution disputes have historically been entrusted to the courts, including the determination of how much is unreasonable, which is--

Justice Ruth Bader Ginsburg: But if we just concentrate on I think the relief you want, you say: District court, if we pass everything else, you set emissions standards, you put a cap immediately, you set a cap, and then annually you require further reductions.

Well, that just sounds to me like what EPA does when it sets emission standards.

Ms Underwood: --Well, it's also like what the Court did in Tennessee Copper.

That is to say, this case doesn't ask the Court to decide how much, contrary to what Petitioners suggest, to decide how much emission reduction is required to solve the whole problem of global warming and then allocate a portion to these defendants.

It asks the Court to do something simpler, and that is to decide whether these defendants can take reasonable cost-effective measures that would help to slow the pace of global warming.

So--

Justice Samuel Alito: How does a district judge decide what is reasonable and cost-effective?

There are considerations -- this is not a situation in which the emission of greenhouse gases can be totally prohibited.

Ms Underwood: --Correct.

Justice Samuel Alito: There are other -- there are countervailing interests.

So how does the court -- how can a district court balance those interests?

Ms Underwood: Well, I would say two things about that.

One, it was also true in Tennessee Copper that it was not the case that the sulfur emissions could be eliminated or that the plant was to be put out of business.

The Court in that case ordered a reduction of sulfur, a quite specific reduction of sulfur emissions in one season and more in another season.

And how does--

Justice Samuel Alito: But do you seriously argue this isn't -- this isn't orders of magnitude more complicated than that case?

Ms Underwood: --It's somewhat more -- it's larger.

I don't know if it's more complicated.

The way a court would do that is presumably the way it did it in Tennessee Copper.

That is, there could be expert testimony, there could also be evidence about whether -- what other emitters are doing, what they do that is feasible and cost-effective to reduce their emissions.

In Tennessee Copper, one of the defendants settled, and the other was subject to an order, and it would have been available to the Court to look to what the settling defendant did for some indication of what the nonsettling defendant might well be ordered to do.

So there is evidence available from which a court could conclude what is reasonable.

Chief Justice John G. Roberts: What -- what is the -- what factors go into the cost-benefit analysis that would have to be undertaken to decide what level of emissions are reasonable in light of the threat of global -- global warming?

Ms Underwood: The available technology, the cost of that technology--

Chief Justice John G. Roberts: Obviously the greatest benefit to reduce global warming would be, of course, to shut down the power plants, right?

Ms Underwood: --Well, we haven't asked for that and nobody suggests that that would be appropriate.

It's not, any more than it was in Tennessee Copper.

Chief Justice John G. Roberts: Because -- right.

But I mean, across the economy, the whole problem of dealing with global warming is that there are costs and benefits on both sides, and you have to determine how much you want to readjust the world economy to address global warming, and I think that's a pretty big burden to post -- to impose on a district court judge.

Ms Underwood: Well, it's also a burden that the plaintiffs would have to bear.

That is to say, we have alleged, and are entitled to try to prove -- and we might fail; that would be for the district judge to determine -- that

"the defendants have available to them practical, feasible. "

--I'm reading from the complaint --

"and economically viable options for reducing carbon dioxide emissions without significantly increasing the cost of electricity to their customers, including changing fuels, improving efficiency, and altering-- "

Chief Justice John G. Roberts: We're dealing with an electric grid that connects I don't know how vast an area, but certainly a vast area here.

And the fact that they can reduce their emissions in a way that doesn't affect their customers is based on the fact that other power plants that are part of the grid will serve part of those -- will serve the customers' needs to some extent.

Ms Underwood: --It may or may not be based on this.

These are facts that can be proven or not proven at trial.

Justice Elena Kagan: But, General, they're usually facts that are determined by an administrative agency.

I mean, even just reading that part of your complaint, it sounds like the paradigmatic thing that administrative agencies do rather than courts.

Ms Underwood: But if there were no agency and if there were no Clean Air Act and somebody was shooting poison into the air in a way that injured people in another State, the States would have the--

Justice Elena Kagan: But if there were no and if there were no, we would be living in a different world.

There is an administrative agency and there is a Clean Air Act.

Ms Underwood: --But those -- those are questions about what has been called the merits or displacement.

The question of Article III standing, the question of justiciability, the question of political question, those are the same questions whether there's an agency or not.

Justice Anthony Kennedy: We can concede that, but we still have the displacement argument--

Ms Underwood: Yes.

JUSTICE KENNEDY -- in front of us, and I thought that's what we were addressing.

We can talk about the displacement argument.

I just wanted to be sure that -- I understood the question of standards to be a question addressed to the political question point.

And even if it might be desirable to have an agency set standards, it is not something that is beyond the power of a court to do.

Justice Stephen G. Breyer: Can the courts set a tax?

Justice Ruth Bader Ginsburg: The agency -- the agency is engaged in that, in it right now, and that's another facet of this case, the potential for conflict.

The EPA, after acting for a while, has now agreed that it does have authority to classify this as a pollutant and it has taken the first steps.

One argument that the EPA -- that the United States is presenting is the way agencies go about this is incrementally, so they're starting with motor vehicles and then maybe they will go to new sources, and then they'll get to maybe where you are.

But you want the Court to start with the existing sources, to set limits that may be in conflict with what an existing agency is doing.

Do we ignore the fact that the EPA is there and that it is regulating in this area?

Ms Underwood: No, we do not ignore that.

This is a very peculiar moment in time for this case to arrive in this Court, because what is offered as displacing is something that is said to be imminent, not something that actually exists, and something that is imminent may never happen.

It was, of course, for that reason that I believe the United States suggested a GBR and we suggested that the case be dismissed so that the lower courts could deal with the unfolding events as they occur.

But the case is here now, and there is no Federal statute or regulation that currently regulates the emission of greenhouse gases by existing unmodified power plants, like the ones operated by the defendants.

And the Clean Air Act works very differently from the Clean Water Act.

It did not put in place a permit system for all emissions when it was enacted in 1970.

Unlike the Clean Water Act 2 years later, which forbids all discharges until they're authorized by permit, the Clean Air Act doesn't regulate anything until the EPA makes findings and imposes restrictions.

Chief Justice John G. Roberts: I -- I suppose there were reasons that Congress adopted that approach, and your suit would override those determinations.

Ms Underwood: No, our suit is consistent with those determinations.

That is to say, the design of the statute leaves preexisting law in place until EPA steps in.

If the Clean Air Act were thought to displace the common law before any regulation occurred, that would mean the immediate effect of this antipollution law in 1970 was to reduce pollution control because--

Chief Justice John G. Roberts: How much -- how much regulation do you need before you would admit that there is displacement?

Is it -- is it a preemption analysis that you're adopting or a displacement analysis?

Ms Underwood: --It's a displacement analysis.

I believe it's a displacement analysis.

What -- what we start from is that the States have a historic right to go to court under the Federal common law and that to -- to -- to deal with the problem of interstate pollution, and that that was a promise that they obtained, the Federal remedy, in exchange for the surrender of sovereignty in joining the Union.

So there has to be -- there's a strong Federal interest in there being a Federal remedy.

Now, when the Clean Air Act was -- was passed, without any regulations, if it displaced the Federal common law, there would be no Federal law applicable at all, because the Federal common law would be displaced and there would be no Federal regulatory law.

The States would have recourse at that point to State common law, as has been suggested.

That would be available still.

But this Court has said repeatedly, and it's correct, that there is a strong Federal interest in regulating this subject matter of interstate pollution with Federal law.

Federal common law is the default position, and when some -- when -- when Congress and the agency act to displace Federal law and put in place -- to displace Federal common law and put in place Federal regulatory law, that's when the displacement occurs.

So when--

Chief Justice John G. Roberts: What is -- what is your test for displacement?

When do we tell whether there's displacement or not?

Has there been some displacement in this case but just not total displacement or--

Ms Underwood: --There's been displacement as to automobiles.

The EPA made a considered judgment about emissions of carbon dioxide with respect to light motor vehicles.

The EPA has made no judgment with respect to stationary sources.

Justice Elena Kagan: What if the EPA made a judgment, but it just was not the judgment that you liked?

Suppose that the EPA said: We've looked at stationary sources; we're not going to regulate.

Would that displace?

Ms Underwood: I think if it were a judgment that the amount of carbon dioxide emission from stationary sources that was currently happening was the -- was the correct amount, that would displace.

If the--

Chief Justice John G. Roberts: --That sounds like -- that sounds like preemption to me and not displacement, or at least preemption with another label.

Ms Underwood: --Well, of course, there are some similarities between the two.

In each case we're talking about whether Federal -- whether one law substitutes for another, whether one law ousts another.

Chief Justice John G. Roberts: Well, maybe you can tell me in what -- to what extent displacement is different from preemption.

Tell me in this area you're going to have displacement but not preemption.

Or I guess it's the other way around, in which there's going to be preemption but not -- well, what's the difference?

You said in response to Justice Kagan that if they've made a considered decision that this is the amount and no other amount higher or lower, then there would be displacement.

In what way is that different from preemption?

Ms Underwood: Well, the difference isn't on that front.

The difference is that with respect to preemption Congress has to decide that it does -- that it wishes to override State law expressly.

Here what we're talking about is simply whether Congress or the agency has acted.

It's a little different.

They don't have to have in mind Federal common law.

They simply have to act in a way that over -- that -- that substitutes for Federal common law, because the promise of the republic really for the States was that the States would have a Federal law applicable to their interstate pollution disputes, and until--

Justice Antonin Scalia: Well, I don't think--

Ms Underwood: --there's a new one, they have the old one.

Justice Antonin Scalia: --I don't think that they have to have in mind State law for preemption, either.

If indeed the State law just positively conflicts with a Federal statute, it doesn't matter whether Congress had State law in mind, does it?

I don't know--

Ms Underwood: No, but -- perhaps not.

But we -- we talk about, though, whether there was intent -- that -- that preemption is ultimately a matter of congressional intent and whether Congress intended and -- and preemption should not be lightly inferred.

It's probably the case that preemption should be harder to find in a close case.

Justice Antonin Scalia: --But you haven't told us how.

It -- it -- it's certainly not harder to find because for preemption you require congressional intent, whereas here -- whereas for displacement you don't.

That's not the -- that's not the difference.

What -- what is the difference?

Ms Underwood: Well, I think in this context they probably work pretty similarly.

I would just say that in each case the question is, what is the -- what does the new law do with respect to the law that it is said to replace?

And--

Chief Justice John G. Roberts: I think you're right that under your theory they operate pretty similarly and I thought the whole point of Milwaukee v. Illinois was that they are two very distinct propositions.

Ms Underwood: --Well, they have different reasons for existing, that's certainly what Milwaukee v. Illinois said.

That doesn't mean they have to in every instance operate differently.

The point of preemption is about the Federal-State balance, and displacement is simply -- is about separation of powers and the interaction of various agencies within the Federal Government.

It shouldn't be surprising--

Justice Ruth Bader Ginsburg: Your point is that EPA, unless and until EPA gets to the point of setting standards for existing sources, the court can be side by side with the agency; we know that the agency is beginning, it starts with light motor vehicles, and then it's moving forward.

But you say as long as the EPA hasn't gotten to stationary sources, the court can be conducting a similar function with -- one of many differences is that if the EPA is setting the standards they will set -- they will do it through notice and comment, everybody will be able to put in a submission; but the court substituting for the EPA, how does the court replicate that notice and comment process?

Ms Underwood: --Well, you say the court substituting for the EPA.

It would be the EPA substituting for the court.

That is, the default, the beginning position before there was legislation, before there was an agency, was a common law remedy.

Justice Ruth Bader Ginsburg: But now there is an agency, and we know that it operates in a certain way, through notice and comment rulemaking.

Ms Underwood: I--

Justice Ruth Bader Ginsburg: And here is the court and how does it operate to get to those standards?

Ms Underwood: --Well, TVA suggests that there's an inexorable march, that there's a regulatory program underway.

But what they point to is an agreement by EPA to begin considering whether to regulate new and existing power plants.

That can't be enough.

The Federal common law exists for the purpose of giving States a remedy for interstate pollution, and if it's displaced when -- when the EPA begins thinking about it, then EPA could think about it for a long time.

They've said when they hope to complete this rulemaking, but it is not uncommon for delays to -- to enter into such processes, and it could be a long time before EPA actually arrives at a judgment.

A lot can happen to delay or derail the fulfillment of a promise.

Justice Elena Kagan: General, do you think that you have a Federal common law cause of action against anybody in the world?

Your briefs talk a lot about how these are the five largest emissions producers, but I saw nothing in your theory to limit it to those five.

Is there something that you think limits it to large emissions producers rather than anybody in the world?

Ms Underwood: Yes.

I think limitations, a limitation to substantial sources -- and I'll talk in a minute about what that might mean -- comes from the Restatement definition, from garden variety State cases about -- involving nuisance, and also perhaps from the requirements of standing itself.

This case asks the Court to recognize that the States can sue the largest emitters of carbon dioxide.

These defendants produce 650 million tons a year or 10 percent of U.S. emissions, and individually they produce amounts ranging from 1 to 3 and a half percent of U.S. emissions.

There is no other company that comes close except perhaps for a handful of the next largest power companies.

Justice Antonin Scalia: You're -- you're lumping them all together.

Suppose you lump together all the cows in the country.

Would -- would that allow you to sue all those farmers?

I mean, don't you have to do it defendant by defendant?

Ms Underwood: Courts sometimes--

Justice Antonin Scalia: Cow by cow, or at least farm by farm?

Ms Underwood: --Courts sometimes aggregate joint contributors to pollution, particularly where the remedy that's sought is injunctive relief.

If this were a damage action there would be a different problem of allocating to each individual defendant.

But the relief that's sought here is the same injunction.

Justice Antonin Scalia: So you can lump everybody together, so you can lump together all the people in the United States--

Ms Underwood: Well--

Justice Antonin Scalia: --who breathe, I suppose.

Ms Underwood: --No.

I think that breathers are not really -- for one thing, they don't even really contribute carbon dioxide because they absorb as well as -- as exhale it.

For another thing, there's no way that breathing--

Justice Antonin Scalia: All right.

All -- all homes--

Ms Underwood: --could be found unreasonable.

Justice Antonin Scalia: --all homes that -- that emit carbon dioxide in their -- in their heating systems.

Ms Underwood: No, we're talking--

Justice Antonin Scalia: The whole country, and you lump them all together, and--

Ms Underwood: --No.

Justice Antonin Scalia: --you say that, you know, that equals 10 percent or whatever.

Does that give you a basis?

Ms Underwood: It is not necessary to aggregate to have these five defendants stand apart from everybody else.

Justice Antonin Scalia: Well, then don't give us a 10 percent figure.

Ms Underwood: I--

Justice Antonin Scalia: Give us the, you know, the maximum figure for a single one of them.

Ms Underwood: --3 1/2 percent of U.S. emissions.

Chief Justice John G. Roberts: Well, why do you stop at U.S. emissions?

What percentage of worldwide emissions, every one of which I assume harms your clients, do these five power plants represent?

Infinitesimal, right?

Ms Underwood: Not infinitesimal, actually.

I believe that U.S. emissions are a quarter of world emissions, so you would divide these numbers by four approximately.

Chief Justice John G. Roberts: From power plants or total emissions?

Ms Underwood: Total emissions.

And--

Justice Samuel Alito: And anybody who is a substantial contributor could be sued?

Ms Underwood: --Yes.

And in terms of determining what -- who is a substantial contributor, there are -- because I do think that at some point a company's emissions or a cow's would be too small to give rise to a standing or -- to either standing or a nuisance claim, and there are various ways to draw the lines.

It's a familiar task for common law courts to decide how much is substantial, too.

But for an example, if the cut-off were producers of 100,000 tons per year, as in the EPA tailoring rule for new sources, just to take an example, then according to EPA's own technical data there would be at most a few thousand potential defendants.

Chief Justice John G. Roberts: Do you agree -- General Katyal began his argument in fairly dramatic fashion by saying we've never in 222 years had a case where the relief, the damages and the relief sought, were as broad as they are here.

Do you have anything to rebut his proposition?

Any case where it has been as broad as it is here?

Ms Underwood: Well, of course it depends on what you call broad.

There are -- there are many cases, small cases involving an attempt to limit discharges by companies.

Chief Justice John G. Roberts: What's your best -- what's your candidate to rebut his proposition?

Ms Underwood: Well--

Chief Justice John G. Roberts: A broader case with respect to the infliction of damage and the need for relief.

Ms Underwood: --Well, I guess what I would say is that cases allowing suits against large contributors, with or without others, and dismissing against small and remote contributors, I give you three State cases that are cited in our briefs: A California case about a large mine that was sued for polluting a river when lots of -- lots of others polluted it and were not before the court.

Chief Justice John G. Roberts: Well, not as many as contribute to global warming?

Ms Underwood: No, that's correct.

But we could talk about -- if we talk about large contributors here, then we're not talking about so many contributors.

We could have it -- we could have it down to, to thousands or hundreds or tens, depending on how we defined large.

Justice Ruth Bader Ginsburg: One aspect of the litigation process as opposed to the agency process, the agency makes its rule and that can be challenged in court, but suppose your plaintiffs lost this case on merits.

I take it this is not a class action, there's no certification of any class.

Other plaintiffs before another district court could launch a similar action against these very same defendants, right?

There would be nothing to preclude that?

Ms Underwood: No.

Well, the parens patriae actions by the States might have some consequence for the citizens of those States, but, yes.

Justice Ruth Bader Ginsburg: That means you have--

Ms Underwood: There would be others who have -- would have -- who would have the ability, other States, I suppose.

I mean, our claim here is that this Federal common law nuisance is available first and foremost for the States; and the question of whether the land trusts or any other private parties could even bring it is--

Justice Samuel Alito: Even if you won and the district court imposed some sort of limit would be there any other obstacle to other plaintiffs bringing suits and another district court issuing a different standard?

Ms Underwood: --Well, the -- ultimately such things would be resolved by appeal and by -- by the circuit courts.

I mean, there are conflicts in many areas.

That's true about every district court litigation.

Chief Justice John G. Roberts: Well, no, it's not, and it's not true of every litigation in this sense, that everyone is harmed by global warming.

So unless you limit your suits to the States, which would -- I'm not aware of a principled basis for doing that -- every individual can bring -- every individual in the world if they can establish jurisdiction can bring one of these cause of -- causes of action.

Ms Underwood: Well, a principal basis to limit -- the common -- the Federal common law of nuisance, as I said, exists principally for the States, for the reason it survived Erie was the Court spoke of the strong Federal interest in providing the States with a remedy for interstate pollution.

So there is a principle there.

And then beyond the States, plaintiffs would have to, to bring a common law nuisance claim as well as to have standing, would have to have a special injury of some kind that would distinguish them from the general -- from the general public.

The Land Trusts here argue that they, because they hold their lands in trust for the public, they have special standing.

That's -- there's no need to reach that question.

This case could turn and should turn on the right of the States to protect their people from -- and their -- and their land from -- from interstate--

Justice Elena Kagan: But, General, much of your argument depends on this notion that this suit is really like any other pollution suit, but all those other pollution suits that you've been talking about are much more localized affairs.

One factory emitting discharge into one stream.

They don't involve these kinds of national/international policy issues of the kind that this case does.

I mean, there's a huge gap, a chasm between the precedents you have and this case, isn't there?

Ms Underwood: --I don't know if I would call it a chasm, but there's a large distance between them, and -- but I would like to separate two things.

The international aspects of this are simply, I think, beyond -- we're not suggesting that this -- this -- that the Federal common law of nuisance entails relief against international defendants.

It does exist for interstate -- for conflicts between the States essentially.

So I would like to put those aside.

And then, in terms of the magnitude, well, there are many cases, not just one factory, the Milwaukee v. Illinois itself involved not just the Milwaukee sewage district that -- that was sued, but there were many other contributors to pollution in that lake.

Justice Samuel Alito: In setting these standards, there would some difficult trade-offs, wouldn't there?

Could you just explain in concrete terms how a district judge would deal with those?

Let -- and just determining the facts is going to be hard enough, but let's assume all the facts are proven, there's not a dispute about the facts.

So that if a certain reduction in greenhouse gas emissions is ordered, that will have this effect, it will increase the cost of electricity by a certain amount, and that will produce certain effects.

It will result in the loss of a certain number of jobs, it will mean that consumers will have less money to spend on other -- other things.

Some people will not be able to have air conditioning in the summer.

That will have health effects.

How is the district judge -- what standard does the district judge have to decide those?

It's just -- what is it, just what's reasonable?

Ms Underwood: Well, reasonableness is the beginning.

I -- I've suggested already first that we've alleged that this can be done without increasing the cost to the consumers.

That may seem -- that -- that is a subject for proof.

Justice Antonin Scalia: Implausible -- implausible is the word you're looking for.

[Laughter]

Ms Underwood: Thank you, Justice Scalia.

But a very good place to look is what other companies have been able to do or have done, including, as I suggested, in Tennessee Copper and perhaps in this area as well, companies that settle this litigation or companies that don't litigate but instead do adopt measures that haven't been widely adopted.

There -- there is a practice to examine in the world about what's feasible and what's cost-effective, and that's not different from--

Justice Stephen G. Breyer: Well, I suppose cost-effective -- suppose your complaint is the same but you alleged, what I get from reading these might be the best way to deal with the problem.

I would like the court to impose a tax of $20 a ton on carbon, right?

And we bring all the polluters in, and the same injury that you have, everything's the same, you have 14 experts who say this is how to get it done.

It's cost-effective, it will lead to substitution, it will actually bring about a world without global warming, and so let's do it.

Now, does the district judge, in your opinion, have the power to enter that order?

Ms Underwood: --I don't think so.

Justice Stephen G. Breyer: All right, now next question is going to be, if he does not have the power to enter that order, which could be proved to be extremely effective, and least possible harm to the consumer, why does he have the power to enter the order you want?

Ms Underwood: Because the common law of nuisance is addressed to direct the polluter to abate the nuisance.

Justice Stephen G. Breyer: Oh, this will.

This is addressed to that.

It says abate the nuisance, here's how you're going to do it.

You're going to put a $20 a tax ton on carbon, and lo and behold, you will discover that nuisance will be abated.

And we bring in 15 economists.

Ms Underwood: Actually, the order we're asking for is less intrusive than that.

We ask the defendants to abate the nuisance, we ask the court to order them to abate the nuisance by some amount, informed by what information is available about methods.

And then--

Justice Stephen G. Breyer: Well, why is it less intrusive--

Ms Underwood: --Because--

Justice Stephen G. Breyer: --to try to get into the details of how an electricity company will in fact run its operation, than to say all you have to do is make a change in the dollar sign that you charge for your product?

Ms Underwood: --Well, because we're not suggesting that the court would get into the details on our theory, either.

It would be the defendants that would get into the details, that would figure out for themselves what the best way was to meet these standards -- to meet the objective.

Justice Antonin Scalia: I wish Justice Breyer had made this argument in the EPA case.

I don't think the EPA case--

[Laughter]

Ms Underwood: And of course it's true that if you conclude that the Federal statutes displace the Federal -- and the Federal regulations displace the Federal common law either now or in the future, then under Ouellette, the same Federal statute that displaces Federal common law will revive source State common law, because of the savings clause in that statute, because of a choice Congress made; and that result, while less -- less respectful of the Federal interest in providing Federal law to govern these disputes, would nevertheless leave common law courts in the business that they're -- of attempting to address unaddressed pollution problems.

The suggestion has been made that the EPA has entered the field of greenhouse gas, and that's enough, but it isn't just one field.

It only seems like one because the EPA once said the whole subject was off limits and beyond their jurisdiction.

Once that obstacle is removed, there still remain a series of programs under the statute, a series of kinds of sources that need to be regulated.

The Clean Air Act regulates by substance and by source.

It's a collection of statutory programs, and taking action under one program can't displace the common law as it applies to matters outside that program.

It may well be that there will be a regulation soon that displaces, but it would be very surprising if this Court concluded that the promise of regulation is enough to displace the Federal common law as distinguished from the actuality of it.

The Court has suggested that a court might impose standards that would conflict with what the EPA is doing, but there's really no reason to think that would happen because if what a court sets out to do is find out what feasible methods there are for reduction and then order the defendants to make reductions that are feasible, that's a much less taxing inquiry, a much less demanding inquiry than the EPA is likely ultimately to make.

Justice Antonin Scalia: What if the EPA comes up with a different number?

Would it -- than the one you achieve in this litigation; would the EPA prevail?

Would the EPA's number prevail or your number prevail?

Ms Underwood: You mean an emission reduction?

Justice Antonin Scalia: Yes, yes.

I mean you--

Ms Underwood: If the EPA -- when the EPA speaks, the EPA's rule will displace the Federal common law.

We're talking entirely--

Justice Antonin Scalia: --And will displace the judgment that has been obtained under Federal law?

Ms Underwood: --If -- it would presumably provide a basis for the defendant to go back to the court and -- and vacate the judgment or alter the judgment to comply with regulations, should that happen.

Justice Antonin Scalia: Right.

And the court says no?

Ms Underwood: That's what appellate courts are here for, isn't it?

[Laughter]

Chief Justice John G. Roberts: Well, I guess, just to follow up, what is the appellate court reviewing?

Is it reviewing the reasonableness of EPA's judgment or the continuing validity of the injunction it entered previously?

Ms Underwood: The continuing validity of the injunction it entered previously because once the EPA--

Chief Justice John G. Roberts: But that seems to be a displacement of the normal process of administrative law, which we would review the agency's determination of how best and to what extent to regulate the emissions.

Ms Underwood: --On a different litigation track, it is -- would also be possible to challenge the EPA's regulatory judgment, but in the case in which a judgment had already been entered, it is the ordinary litigation track to, if -- if intervening events make equitable relief no longer equitable, to go back to the court and ask the court to modify its injunction.

Chief Justice John G. Roberts: Yes.

And I guess that's the central problem.

Once you turn it over to litigation, it's an entirely different set of standards that would regulate emissions as opposed to the standards that would apply with respect to an agency's determination.

Ms Underwood: I don't think it's a different set -- yes, one set of standards for reviewing an agency's determination, but the ultimate standards that are reached are going to be a level of emission reduction through either process.

When the agency speaks to the question, the Federal common law is displaced.

When it doesn't, and during what could be a long period of time when it doesn't, the States are entitled to a Federal law governing their dispute.

So we urge this Court to keep the Federal courts open to States exercising their historic power to protect their land and their citizens from air pollution emitted in other States.

Chief Justice John G. Roberts: Thank you, General Underwood.

Mr. Keisler, you have five minutes remaining.

REBUTTAL ARGUMENT OF PETER D. KEISLER ON BEHALF OF THE PETITIONERS

Mr. Keisler: Thank you, Mr. Chief Justice.

Just a few points.

First, with respect to the merits and what it would involve to adjudicate this case, Justice Kagan, it is a -- there's a reason that this issue is so fraught and difficult in international negotiations and at the EPA and in the halls of Congress, and that's because it requires policymakers to allocate burdens among critical social goods in favor of important environmental considerations; and the remedies that are being considered are potentially transformative because they involve the way we use and supply and pay for energy.

And the problems with courts attempting to replicate what's going on in those venues are not simply the matter is complex, although of course it's extremely complex, but there is no legal principle here to guide the decision.

It's a question of trade-offs, how the country wants to balance the projected environmental risks and benefits against the projected economic benefits and costs.

If Congress enacts a statute providing a standard, then our political question argument goes away.

It's not that this is permanently off limits to the judiciary.

It's that it requires a standard.

And in a big intractable issue like this, Congress can often create an orderly framework for consideration within a statutory context, which it has done in part by enacting the Clean Air Act.

And the final point I would make my friend and I come at this really from opposite angles, in the following sense, which is the plaintiffs say that this is a deeply historically rooted cause of action with a very strong and ancient pedigree, and therefore it can't possibly present justiciability problems, under standing, political question doctrines; and we say that the very powerful standing and political question obstacles that we think are apparent on the face of this are a signal that this is nothing like the historical cause of action that they've relied on.

To classify climate change as a tort would trigger a massive shift of institutional authority away from the politically accountable branches and to the courts, which we think would be inconsistent with separation of powers, and for those reasons we ask that the Court reverse the judgment and direct that the case be dismissed.

Chief Justice John G. Roberts: Thank you, Mr. Keisler, counsel.

The case is submitted.

Print this transcript Transcript: 

Justice Ruth Bader Ginsburg: Does the federal common law of public nuisance authorize suits by states, cities and private parties to abate carbon dioxide emissions on the theory that they contribute to global warming?

That is the question this case presents.

The plaintiffs below, respondents here, several states New York City and three private land trusts, the defendants below, petitioners here, are five major electric power companies including the Federal Tennessee Valley Authority, alleging that the five power companies of the largest emitters of carbon dioxide in the nation, the plaintiffs filed suit for injunctive relief in the Federal District Court in New York.

They asked the Court to set carbon dioxide emissions limits for each defendant at an initial cap and to order further reductions annually.

The District Court dismissed the litigation holding that the plaintiffs had come to the wrong forum.

They were raising political questions the judge said, this is properly address by the legislative and executive branches of government not by the judiciary.

The Court of Appeals for the Second Circuit reversed.

The Appeals Court held first that neither the political question doctrine nor any Article III standing to sue barrier blocked the litigation.

On the merits, the Second Circuit held that the litigation could move forward in federal court because the plaintiffs had stated the claim under federal common law that is law developed by judges' overtime case by case.

In reaching this determination, the Court of Appeals relied on decisions of this Court allowing the state to maintain the suit for abatement of air pollution emanating from outside the state but traveling into it.

On the jurisdictional question, this Court is evenly divided.

Four of us would find no threshold barrier to sue while four withhold that the plaintiffs lack Article III standing to sue.

We therefore follow our standard practice on four-to-four splits.

We affirm the Court of Appeals exercise of jurisdiction but we issue no opinion on the point and our disposition of the question carries no weight as precedent.

On the merits however, we reverse the Second Circuit's judgment.

We did not decide whether this Court's reasoning in prior interstate business suits would carry over to a claim seeking abatement of carbon dioxide emissions for any such claim we hold would be displaced by the Clean Air Act.

The justification for federal common law disappears, our decisions explained when Congress steps in and addresses the question until then prop of a federal common law governments.We think this case fits that description.

In Massachusetts, the EPA, we held that the Clean Air Act entrusted regulation of carbon dioxide emissions to an expert administrative agency, the Environmental Protection Agency, the EPA's authority under the Clean Air Act, which is carbon dioxide emissions from power plants like those the defendants operate.

In fact, the EPA is currently engaged in the rulemaking to decide whether the agency should set limits on emissions from domestic power plants.

The Clean Air Act in our judgment leaves no room for a parallel tract -- track that is notwithstanding the regulatory authority of the expert agency, control of greenhouse gas emissions by federal judges employing judge made federal tort law.

We have before us to put it plainly, who decides question executive agency pursuant to congressional delegation or court?

The Second Circuit held that federal common law is not displaced unless and until the EPA actually exercises this regulatory authority by setting limits on carbon dioxide emissions from the defendants' plants.

We disagree.

The critical point is that Congress has vested decision maker -- decision making authority in the EPA.

If the plaintiffs are dissatisfied with the EPA's decision, the plaintiffs may seek court review of the agencies rulemaking under procedures prescribed by the Clean Air Act.

But the plaintiffs cannot bypass the EPA's rulemaking and activate in the first instance judicial resolution of the matter.

The plaintiff's also raised claims under state tort law.

The courts below did not address the potential governance of state law because we are a court of review.

In that first view, we remand the state law claims so that the lower courts can take them up in the first instance.

Justice Alito has filed an opinion concurring in part and concurring in the judgment in which Justice Thomas joins.

Justice Sotomayor took no part in the consideration or decision of this case.