Elena Kagan on Energy & Oil
Let citizens sue for harm caused by global warming
At yesterday's confirmation hearings, Kagan [addressed] the question of whether citizens should have the right to sue for damage to the environment. This has been the subject of some debate. There are those who argue that citizens don't have the
constitutional standing to bring such cases because they can't prove they've been directly harmed by problems like global warming, the elimination of a species, or air or water pollution. Kagan affirmed that she believes citizens do have this right.
Source: Kate Sheppard in Mother Jones: "Kagan Talks Environment"
, Jun 30, 2010
Clean Air Act displaced federal common law on CO2 emissions.
Justice Kagan joined the Court's decision on AMERICAN ELECTRIC v. CONNECTICUT on Jun 20, 2011:
Joined by the courts into one suit, eight states, New York City, and three nonprofit land trusts filed actions against five major electric power companies claiming their carbon dioxide discharges, by contributing to global warming, have interfered with public rights in violation of federal common law, or of state tort law.
HELD: Delivered by GINSBURG, joined by ROBERTS, SCALIA, KENNEDY, BREYER & KAGANSince four members of the Court hold that at least some of the plaintiffs have standing, though four others would find there is not standing, the Court will address the merits. Though a federal common law regarding air pollution has developed where once there was none, the passage by Congress of the Clean Air Act and the agreement of the EPA to regulate carbon dioxide emissions have occupied this field of law and have displaced the federal common law. The fact that the EPA has not yet issued rules does not allow the Court to issue decisions under the
federal common law that are binding until the EPA does act, since Congress has shown its intent to have the EPA make these decisions. The process the Clean Air Act sets out is that the EPA, using its expertise, shall issue in the first instance regulations. Parties dissatisfied with those regulations may seek review of the EPA's actions in the US Court of Appeals. The possibility of state law claims for pollution will depend upon the preemptive effect of the Clean Air Act. As the preemption issue was not briefed for this Court, the state law claims are remanded for further consideration by the lower courts.
CONCURRED: ALITO concurs; joined by THOMASAssuming for the purpose of this decision that this Court in Massachusetts v. EPA interpreted the Clean Air Act correctly, this Court's analysis of the displacement of federal common law by Congressional enactment is also correct.
Sotomayor recused herself.
Source: Supreme Court case 11-AE-CT argued on Apr 19, 2011
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