Steven Ferry * | 24.5 | Article | Citation: Steven Ferry, Supreme Court Arrests Regulatory Law on Climate and Sustainable Power, 24 U. Pa. J. Const. L. 1096 (2022).

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The Supreme Court is empowered to restrict the exercise of legal action by the other two co-equal branches of government. The Court recently issued four successive decisions that stopped the Executive Branch in its tracks: holding that federal common law was federally displaced and could not address climate, then restricting Executive Branch regulatory “tailoring,” then blocking executive branch power due to failure to consider costs of its regulation, and finally enjoining executive branch regulatory authority over climate. Amid the current sprint to reduce carbon emissions by any means to preserve the climate, the Court’s legal restraints truncated federal government action regarding climate change.

What the Court taketh away, an inverted common law reaction now giveth and is replacing. U.S. federal statutes in 1970 became the powerful legal mechanism for shaping environmental policy for the last half century, and therefrom common law was demoted to serving as a secondary, even minor, legal mechanism to address environmental issues. Common law has recently risen to fill voids left by these recent Court restrictions on EPA addressing climate. Most recently in a fifth climate decision addressing common law and climate, the Supreme Court in 2021 remanded and resorted how the Third Branch of government handles climate issues. This article deconstructs these several successive Supreme Court decisions flattening federal executive branch power and addresses a significant second wave of newly empowered common law litigation now filling the courts.

Power and climate: Electric power is the preeminent U.S. technology that makes possible other essential technologies. All sixteen infrastructure sectors considered “critical” by the U.S. Department of Homeland Security each require reliable electric power to function. Electricity is identified as the second-most important invention since the wheel. Electricity is the only invention in history which also is indispensable to operate seven of the other “top 50” technology inventions of all time. Without reliable electric energy, the U.S. economy, and that of the developed world, will not function.

Notwithstanding its value, more than one-quarter of global warming emissions in the United States comprised of carbon dioxide and methane emissions are from the traditional production of electricity as shown in Figure 1. Disproportionately, the electric power sector, which is responsible for 27% of global warming carbon emissions, has been asked to shoulder more than two-thirds of total U.S. responsibility for reduction of global warming emissions. The first wave of Supreme Court restriction of the executive branch was initiated by four Supreme Court decisions on climate which closed-off and displaced all federal common law climate litigation and restricted the power of the federal EPA to exercise its regulatory discretion on various climate change issues:

• the Supreme Court barred federal common law litigation regarding climate change as displaced by executive branch regulation;

• the Supreme Court held impermissible EPA climate change “tailoring” by regulation;

• the Supreme Court restricted EPA climate change regulations for failure to consider cost;

• the Supreme Court indefinitely enjoined the Obama EPA’s climate change regulations and six years later stuck them as in violation of the major questions doctrine.

Since these four Supreme Court opinions restricting both EPA climate regulation and federal common law, the composition of the Court changed. In the Supreme Court’s 2015 Michigan decision bulleted above reversing the D.C. Circuit, the pre-Justice-Kavanaugh Supreme Court majority reversed the D.C. court of appeals by citing and upholding the lone dissent of Judge Kavanaugh as a member of the Circuit panel in the circuit decision. Justice Kavanaugh is now elevated to the Supreme Court along with two other recently confirmed appointees, altering the future judicial landscape. This article analyzes these four Court decisions embalming and then indirectly resuscitating common law tort litigation to challenge the sale of fossil fuels to generate electric power and confront climate change.

Section II starts by examining climate change law and the mechanics and deployment of renewable wind power which is responsible for the largest additions to U.S. power generation each year during the last decade. Section II analyzes the unique federal/state/local split of legal jurisdiction over electric power in U.S. law, with the Supreme Court creation of a “bright line” separating the authority of each level of government. Section II analyzes local land-use zoning law that recently has frustrated siting and deployment of renewable wind power to mitigate climate change.

Section III undertakes a deeper dive distinguishing the legal line separating state from local land-use control affecting the siting of new sustainable wind power development. Notwithstanding that cities derive power from their states, there is nothing more traditionally local under the U.S. system of law than the local police power over uses of land. Section III analyzes a disparate state checkerboard:

• the authority and mechanisms of municipalities to discourage wind power through local land-use law regulation;

• states retention of the power to ‘take’ land for the provision of electric power lines;

• different eminent domain legal power as implemented in each of the fifty states;

• mechanisms states use to preempt the legal authority of their local communities.

On the constitutional separation of power, Section IV analyzes the recent legal void created by the Supreme Court enjoining federal executive branch regulation regarding climate. Section IV examines the new resuscitation and elevation of common law and human rights litigation claiming alleged climate change injuries. Section IV analyzes the key Supreme Court decision which displaced any legal access point through which common law remedies could address issues of climate change. Section IV also analyzes three cases in close succession in which the Supreme Court arrested federal regulation of climate matters, indirectly opening a new “back door” for common law climate litigation to enter and occupy. Also highlighted is the recent change in Court composition and the most recent 2021 Court decision on common law climate change litigation.

Section V analyzes the resulting legal resuscitation of traditional common law remedies superseding federal climate regulation as the world nears its climate “tipping points . . . that will alter regional and global environmental balances . . . irreversible within the time span of our current civilization.” Section V highlights how plaintiffs have not yet strategically seized on the presented legal opportunity. At stake is whether the world teeters over the “tipping” point of unmanageable climate change and its repercussions.

The next section addresses a warming climate, sustainable energy technology, and the “bright line” of exclusive bifurcated federal/state jurisdiction over the key electric power sector.

* Steven Ferrey is Professor of Law at Suffolk University Law School and served as Visiting Professor of Law at Harvard Law School. Since 1993, Professor Ferrey has been a primary legal advisor to the World Bank and the United Nations on their renewable energy and climate change policies in developing countries, where he has worked extensively in Asia, Africa, and Latin America. He is the author of more than 100 law review articles and 7 books, the most recent of which are Unlocking the Global Warming Toolbox, 2010; Environmental Law: Examples & Explanations, 8th ed. 2019, 9th ed. January 2022; and The Law of Independent Power, 56th ed. 2021. Professor Ferrey thanks his research assistant, Joe Ruggiero, for his assistance.