Wall Street Journal Changes Its Mind About How To Solve Air Pollution

The Wall Street Journal continued its crusade against clean air, calling on the Supreme Court to put an end to centuries-old state lawsuits that hold polluters accountable for the "smoke, dust, poisonous chemicals, and noxious odors" they dump on their neighbors, despite previously arguing for state-level solutions to air pollution.

The WSJ has a long history of blanket opposition to class action lawsuits, regardless of the merits of the case. It has called class actions nothing more than a "windfall" for plaintiffs lawyers despite the fact that such lawsuits are often the only avenue for legal redress for many consumers. Class actions are often the most effective tool to punish corporate plaintiffs whose behavior cause Americans injury or harm, yet the WSJ has falsely accused federal judges (like conservative Seventh Circuit Court of Appeals Judge Richard Posner) of not following and having "disdain for" Supreme Court precedent, just for allowing class action lawsuits to proceed.

In its most recent editorial on the subject, the WSJ complained that the Supreme Court should “polish off” a new series of class action lawsuits that seek relief for injury caused by air pollution or the physical effects of climate change caused by such pollution. Based on long-established state common law -- judge created doctrine as opposed to legislatively-enacted law -- that redresses personal injury caused by nuisance, trespass, or negligence, these suits allow landowners to bring civil claims against factories and power plants whose air pollution has negatively interfered with their property rights.

In 2011, the Court ruled that federal common law does not provide for civil nuisance claims seeking injunctions against polluters because the federal Clean Air Act (CAA) displaced such litigation, but the question of whether the CAA applies to state common law was explicitly left unanswered. Although the 2011 case sought a court order to stop pollution that caused global warming, other lawsuits based on the state version of common law only seek damages for the air pollution itself, regardless of its contribution to climate change. But the WSJ complained that allowing these more traditional class actions to go forward would “lead to a state-by-state chopped salad of pollution controls,” even though it has previously argued that managing pollution should be largely left to the states rather than the federal government. 

From the editorial:

For years environmentalists have sued utilities on the claim that their emissions are a “public nuisance” under common law and therefore the courts should make U.S. climate change policy. In 2011 an unusual 8-0 majority of Justices held in American Electric Power v. Connecticut that this question belongs to the political branches and the Court “remains mindful that it does not have creative power akin to that vested in Congress.”

That case turned on federal common law, but class-action plaintiffs revived the nuisance doctrine under state common law -- and for some reason the Third Circuit Court of Appeals accepted this nondistinction. In GenOn Power v. Bell, a group of homeowners argued the traditional air pollutants of a local Pennsylvania power plant damaged their property values, but if allowed to stand the decision could also apply to carbon dioxide.

The plant was permitted and in full compliance with all federal and state standards under the Clear Air Act [sic], which Congress passed in the 1970s precisely to pre-empt such common-law pollution nuisance suits. The point was to establish one uniform, predictable regulatory regime, and -- whatever its faults in practice -- this system is preferable to ad hoc, case-by-case injunctions that substitute the judiciary's judgment for that of Congress and federal agencies.

Green torts copying the Bell argument have already proliferated within the Third Circuit, and the tort bar is bidding to import the same logic into the Fourth, Sixth, Seventh and Ninth Circuits as well. Failing to reverse the decision could expose U.S. industry to billion [sic] of dollars of liability and lead to a state-by-state chopped salad of pollution controls as judges make what are quintessentially political decisions. The Bell defendants are asking the Supreme Court to take the case, and the Justices should take the opportunity to close the state common-law loophole before more damage is done.

The fact that the WSJ is advocating for exclusive federal jurisdiction over polluters that create local nuisances is an about-face. Previously, the editorial board complained that the Environmental Protection Agency's (EPA) efforts to regulate the air pollution of interstate greenhouse gas emissions -- a quintessential federal problem -- were part of the agency's “habit of stretching its legal authority,” and “violated the federalist structure of the Clean Air Act” because its regulations “no longer [give] states a chance to develop their own plans” to curb pollution. Yet, now the WSJ appears ready to embrace a federal solution for the purely state problem of a local polluter harming its neighbor in Bell, based on a misleading account of what the Supreme Court actually decided in American Electric Power. In that case, the plaintiffs were seeking injunctive relief -- a judicial remedy that would have put caps on emissions or would have forced power plants to stop emitting harmful pollutants entirely. The Court held that federal law -- the CAA -- displaced a federal nuisance claim because the EPA is already acting to regulate greenhouse gases.

By contrast, the plaintiffs in Bell are seeking damages -- monetary compensation for the harm that polluters have caused to their communities, and they are doing so through state law, not federal law. Furthermore, they are making no claim for damages from the effects of climate change caused by a Pennsylvania power plant, instead seeking only compensation for the direct harm caused by the “fly ash and unburned coal combustion byproducts that fall and settle” on their property. This appeal to justice is unremarkable: nuisance suits have long been one of the primary ways for homeowners to seek relief in the face of air or water pollution. As explained by the plaintiffs in Bell, “straightforward state common law actions like this one proceeded in courts throughout the country for decades before” the CAA was passed in 1970, “and have continued in courts throughout the country since then.” If anything, the use of federal common law was the “loophole,” not the traditional state common law approach that the WSJ is now attacking.

Now that the Supreme Court has held that there is no federal common law remedy for plaintiffs seeking to enjoin the behavior of these types of companies, the state remedy seeking damages instead might be one of the few options left for plaintiffs who have been harmed by unrepentant air polluters. Contrary to the WSJ's assertion that this is a “nondistinction,” the unanimous American Electric explicitly recognized this difference, concluding that “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.”

Not only have common law nuisance suits been a frequent remedy for air pollution regardless of its effect on climate change at the state level, Yale law professor Douglas Kysar argues that it may be worthwhile to allow the courts the opportunity to openly consider and debate the merits of the developing so-called “climate torts” -- civil lawsuits, like the nuisance suits at issue in Bell, that would force polluters to address their contributions to climate change through the legal system. The federal courts are already grappling with the tort liability of greenhouse gas emitters and some have already accepted this legal connection of causality between air pollution and climate change. Kysar noted this can be seen as unsurprising, because “the common law co-evolves with the social problems it is called upon to address. This active and adaptive understanding of common law has existed since before the Founding.” He goes on to argue that preventing courts from hearing climate change cases “would deprive the courts of an opportunity to continue tort law's evolution and would upset a basic feature of our governmental structure.”

The WSJ, though, still erroneously claims that the CAA was intended to “pre-empt such common-law pollution nuisance suits” at the state level. As the Third Circuit pointed out in its decision in Bell, “we see nothing in the Clean Air Act to indicate that Congress intended to preempt source state common law tort claims. If Congress intended to eliminate such private causes of action, 'its failure even to hint at' this result would be 'spectacularly odd.'” Moreover, the WSJ's argument that the question of how to deal with the nuisance of emissions “belongs to the political branches” -- that it should be decided only by state legislatures rather than the courts -- is not supported by the facts. According to the Third Circuit, “no court has ever held that such a constitutional commitment of authority regarding the redress of individual property rights for pollution exists in the legislative branch.”

Despite the facts, the WSJ still wants the Supreme Court to “polish off” state-level lawsuits that could bring about judicial remedies for climate change, even though it also apparently detests federal oversight when it comes to air pollution. It is unclear if there exists a solution to air pollution, let alone climate change, that the WSJ would support.

Photo via Flickr/Eric Schmuttenmaer under a Creative Commons License.