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"Climate Change Litigation Since Mass v. EPA"



A new paper (leads to PDF) for the Federalist Society's Engage by David B. Rivkin, Darin R. Bartram, and Lee A. Casey, all Washington attorneys. Summary:

Although Congress failed to pass climate change legislation in 2007, the year was nevertheless highly significant for climate change litigation. Many courts are increasingly willing to interpret existing statutes (particularly the Clean Air Act and the National Environmental Policy Act) to require federal agencies to address some aspect of global warming. At the same time, they generally have proven far more reluctant to frame judicial climate change relief under federal or state common law nuisance theories. Such claims have largely been dismissed on standing or justiciability grounds.

Nevertheless, a pattern is clearly emerging in which states and private groups that are impatient with federal efforts to deal with global climate change on the international level seek to force U.S. domestic action either directly under existing statutory schemes (or through new state laws) or indirectly by targeting the industries they believe should be the subject of regulation in this area. At this point, it is by no means safe to assume that these efforts will be found by the courts to be preempted by federal law.

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Rafael Mangual
Project Manager,
Legal Policy
rmangual@manhattan-institute.org

Katherine Lazarski
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.