Earlier this month, I explained why federal circuit courts have been correct to reject energy company attempts to remove various cliamte change cases to federal court, and suggested these suits are not cert worthy. A few days later, the U.S. Court of Appeals for the D.C. Circuit affirmed my view in a clear and concise opinion by Judge Neomi Rao.

In my earlier post, I criticized arguments made by former Attorney General William Barr and AEI’s Adam White in support of certiorari in American Petroleum Institute v. Minnesota, a case currently under consideration at One First Street. AG Barr has now responded, and I reproduce his reply below, along with my brief rejoinder.

I appreciate AG Barr taking the time to respond to my blog post. I will offer only a few brief thoughts in reply.

Barr is correct that we agree on some points. We agree that under Milwaukee I, common law claims alleging harms from interstate pollution were goverened by federal common law, and that this made a good deal of sense. Indeed, there is even an argument that downstream and downwind jurisdictions were better protected by such a regime than they would be for decades under federal pollution control statutes. We further agree that under the logic of Milwaukee I, any claim filed by a state or locality alleging harms from interstate pollution would have raised federal common law claims and would have been governed by the federal common law, whether or not the plaintiffs sought to advance putatively state law claims.

That was arguably the law in 1972. It is not the law now. For good or ill, the Supreme Court abandoned this regime. First, in Milwaukee II, the Court held that the mere enactment of federal law addressing interstate pollution displaces the preexisting federal common law, such as it is no longer there. While Milwaukee II concerned the effect of the federal Clean Water Act on water pollution-related claims, the Court’s subsequent AEP decision adopted the exact same approach for air pollution, inclding greenhouse gases. Whatever the type of pollution, Milwaukee II and AEP make clear that there is no federal common law to govern the claims.

So what happens when a plaintiff files suit alleging harms from pollution that crosses state lines? State law governs such claims. How do we know? Because that is what the Supreme Court expressly held in Ouellette. While noting that such claims had, at one time, been governed by federal common law, the Court recognized that federal common law had been completely ousted by federal environmental statutes, but that state common law had not been. Rather, the Court explained, state common law claims were only preempted to the extent Congress had expressly chosen to preempt them (which, given the broad savings clauses such laws contain, is not much at all.) As Judge Rao explained in her opinion in DC v. ExxonMobil: “In the Clean Air Act, Congress displaced federal common law through comprehensive regulation, but it did not completely preempt state law, nor did it provide an independent basis for removal, as it has done in many other statutes.” Thus, in Ouelette, the plaintiffs were allowed to proceed with their claims under state law, and were ultimately able to obtain a substatial settlement.

Barr cites the Supreme Court’s admonition in Sackett that Congress must “enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power,” but completely misses the point. The pre-existing balance was one that left states free to adopt pollution control policies without federal interference. Thus if federal law is to preclude states from pursuing state-law claims against polluters, the burden is on those calling for such preclusion to find “exceedigly clear language” from Congress to that effect.

Does this mean anythign goes? Of course not. Minnesota and other climate plaintiffs will ultimately have to substantiate their claims under applicable state law, and do so within applicable constitutional constraints (such as the Due Process Clause) which may limit the nature of their claims or the relief they may obtain. The question now is merely whether the mere fact of filing such claims, and seeking judicial redress for interstate pollution, necessarily implicates federal law and justifie removal into federal court. Here the law is clear: There is nothing inherently federal about such common law claims, and there is no reason such claims should be heard in federal court. The circuit courts have been unanimous on this point and, so long as they follow current law, the justices should be as well.