by Christopher Rizzo

In September 2009 the U.S. Court of Appeals for the Second Circuit ruled that various states could assert public nuisance claims against energy companies.  See Connecticut v. American Electric Power Co., 582 F. 3d 309 (2d Cir. 2009).  The states’ nuisance theory is that combustion of fossil fuels (particularly coal) contributes to global warming and sea level rise,  which in turn poses a great risk to coastal states.  The possibility of their being held liable for nuisance for such attenuated causation understandably concerned the defendants and others like them.  So it is not surprising that they sought certiorari from the U.S. Supreme Court in August 2010.  Their grounds for doing so included the “supremacy clause” of the U.S. Constitution, which bars state actions that conflict with valid federal efforts, and the “political question” doctrine, which bars federal courts from resolving controversies that are properly resolved by the legislative branch of government.  They allege that the President and Congress have forged a very deliberate path on global warming and that the U.S. Environmental Protection Agency has (at least since President Obama took office) begun to use its existing regulatory authority to address climate change.

These kinds of state-initiated efforts to address climate change are repeatedly bumping up against the constitutional limits.  And state and municipal officials are clearly not thinking carefully enough about “Con Law 101” in their efforts.  In one of the notable cases on preemption of municipal energy efficiency regulations, the U.S. district court recounted:  “at the time the Code was drafted, the Green Building Manager, by his own admission, was unaware of federal statutes governing the energy efficiency of HVAC products and water heaters and the City attorneys who reviewed the Code did not raise the preemption issue.”  See Air Conditioning, Heating and Refrigeration Institute v. City of Alburquerque, 2008 Wl 5586316 (D.N.M. 2008) (overturning local energy regulations on preemption grounds)(emphasis added).    A clear understanding of what states can and cannot do is therefore fundamental to training our Environmental Law LLM students that have chosen the “climate change track.” After all, regardless of where the federal governmental goes with climate change legislation, states will retain tremendous authority over land-use, electricity production and even automobiles.  Over six sessions, my class, “State and Regional Climate Initiatives,” explores these constitutional issues and the growing body of court decisions that have determined just how far states and cities can go to control greenhouse gas emissions.

We begin with the commerce clause, dormant commerce clause and compact clause and seminal caselaw on those issues such as Maine v. Taylor, 477 U.S. 131 (1986), U.S. Steel v. Multistate Tax Commission, 434 U.S. 452 (1978) and American Insurance Company v. Garamendi, 539 U.S. 396 (2003).    These cases are particularly relevant to what states can do with cap-and-trade and renewable portfolio standards.  For example, the Regional Greenhouse Gas Initiative (“RGGI”) is deliberately structured to avoid substantive impacts on energy commerce or the appearance of being an illegal “interstate compact.”  The only reported (and now settled) challenge to RGGI included attacks on those very grounds (Indeck v. New York State Department of Environmental Conservation, 2009).

We next look at the Tenth Amendment, the extent of states’ police powers and states’ ability to regulate the development of land.  Sprawl is a significant contributor to climate change because it forces people to drive longer distances and encourages energy-intensive buildings and homes.  The class therefore looks at seminal federal and N.Y. cases on those police powers, such as Euclid v. Ambler, 272 U.S. 365 (1926) and Golden v. Ramapo, 30 N.Y.2d 359 (1972).  And it compares those cases to current efforts to combat sprawl and incorporate green building standards into zoning, building and energy codes.  This class also considers the N.Y. attorney general’s unique statutory authority to police the stock market.

In the third class, we look at the “supremacy clause” and the circumstances in which federal legislation will preempt local actions.  In Metropolitan Taxicab Board of Trade v. City of New York, 2010 WL 2902501 (2d Cir. 2010), the appellate court ruled that New York City’s efforts to force cab owners to buy hybrid vehicles was preempted by the 1975 Energy Policy and Conservation Act, which reserves control over fuel economy to the U.S. Department of Transportation.  Similarly, we explore in this third session California’s efforts to impose greenhouse gas emission standards, which fared better than New York City’s efforts in Central Valley Chyrsler Jeep Inc. v. Goldstene, 529 F. Supp. 2d 1151 (E.D. Cal. 2007).

New types of land-use controls, such has historic preservation ordinances, have traditionally been challenged on takings grounds under the Fifth and Fourteen Amendments.  It is therefore curious to practitioners (including me) that there have so far been few challenges to new green building laws that are proliferating around the nation, many of which require compliance with the U.S. Green Building Association’s LEED ™ standards.  The fourth class therefore reviews the lessons learned from legal challenges to historic preservation laws and coastal development laws, including Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978) and Nollan v. California Coastal Commission, 483 U.S. 824 (1987).  And the class then applies those cases to new local efforts to impose new zoning controls on sprawl and renewable energy facilities, for which traditional zoning codes are still adapting.

Finally, we look at state energy codes and policies.[1] Federal laws (e.g., 42 U.S.C. § 6833) drive states’ ongoing efforts to improve their building and electric codes and adopt updated standards prepared by leading professional organizations (i.e., ASHRAE and IECC).  This process raises issues of federal preemption and constitutional limits on states’ ability to delegate their legislative power to private individuals and organizations.

[1] One additional class focuses on environmental impact review under the National Environmental Policy Act and N.Y. State Environmental Quality Review Act, which both now require assessment of an action’s impact on climate change and global warming’s impact on the action.