A Second Round with William Barr on Litigation Over Interstate Pollution

After I responded with a letter to the editor to William Barr’s Wall Street Journal op-ed arguing that state-law-based tort suits against fossil fuel companies seeking redress for climate-related harms are preempted, Barr responded with a letter of his own, to which I offered a sur-reply. Here is a quick review of the argument, with some additional commentary.

In his initial op-ed, Barr argued that “disputes involving pollution that crosses state or international borders are the exclusive domain of federal law.” My letter (and accompanying blog post) pointed out that this was wrong, noting the Supreme Court’s decision in International Paper v. Ouellette in which the Court held that such suits are not preempted, but that common law nuisance suits over interstate pollution must apply the law of the source state, not that of the polluted plaintiff.

In his reply, Barr sought to argue that I “misread” Ouellette, writing:

In response to my op-ed on climate-change tort suits, he invokes International Paper Co. v. Ouellette (1987) to suggest that states may regulate out-of-state emissions unless doing so is “incompatible” with federal law. But Ouellette reinforces my position.

The court held that the Clean Water Act pre-empts states from applying their own pollution law to an out-of-state source, since subjecting one source to multiple state laws would create a “chaotic confrontation” and undermine the federal regulatory structure.

What Barr’s letter elides is that while Oullette prevents a state or its residents from applying their state’s law to out-of-state polluters, it expressly held that suits over such suits are not preempted, but may continue. As I noted in my sur-reply letter:

hile he is correct that the court in International Paper Co. v. Ouellette (1987) “held that the Clean Water Act pre-empts states from applying their own pollution law to an out-of-state source,” it further held that “nothing” in federal law precluded “aggrieved individuals from bringing a nuisance claim pursuant to the law of the source State.”

In other words, such suits may proceed and aren’t pre-empted by federal law. This is precisely what happened in Ouellette. After the court’s decision, the case proceeded to trial on remand, the plaintiffs presented their case and International Paper settled, agreeing to pay substantial compensation.

So there is no mistake, Ouellette rejected Barr’s initial claim that “disputes involving pollution that crosses state or international borders are the exclusive domain of federal law.” It did not preempt such suits, but rather set the terms under which such suits can proceed. The Ouellette case itself is a case in point, as the plaintiffs were allowed to pursue their claims against interstate air and water pollution on remand.

The point of Barr’s initial op-ed was to encourage the Supreme Court to grant certiorari in Suncor Energy v. County Commissioners of Boulder County, the most recent state-law-based climate tort suit brought before the Court.

Thus far, the justices have shown little interest in wading into climate tort litigation, despite repeated entreaties to do so. I suspect one reason for this is the fundamental weakness of the substantive argument, combined with the preliminary posture on which these cases have been brought. While there is an ostensible circuit split, insofar as the U.S. Court of Appeals for the Second Circuit swallowed the preemption arguments and several state courts have not, this has not yet been enough to convince four justices to support certiorari.

Even if the justices ultimately vote to grant cert, precluding state climate litigation altogether will remain a heavy lift under current law. Insofar has Congress has the constitutional authority to preempt litigation of this sort, it has not enacted any law that would do so, and I will be surprised if the Court ultimately says otherwise.

As my second letter concluded:

It is the job of the judiciary to say what the law is, not what it should be. If Mr. Barr believes state-law-based climate litigation should be pre-empted, he should encourage Congress to enact a law that does so.