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STATE OF OKLAHOMA, )
)
Plaintiff, )
)
v. ) Case No. 4:05-cv-00329-GKF-PJC
)
TYSON FOODS, INC., et al., )
)
Defendants. )
The State of Oklahoma respectfully notifies the Court of the United States Supreme
Courts June 20, 2011 decision in American Electric Power Co., Inc. v. Connecticut, No. 10-174
(AEP) (attached as Exhibit A). This decision addresses the circumstances under which there is
The issue of whether the Clean Water Act displaces the States federal common law of
nuisance claim has been extensively briefed and argued in this case. The States and
Defendants respective positions on this issue are reflected in State of Oklahomas Proposed
Findings of Fact and Conclusions of Law, DKT #2873 at pp. 287-298, and Defendants
Proposed Findings of Fact and Conclusions of Law, DKT #2876, Ex. A at pp. 111-120.
Furthermore, this Courts analysis of the issue is reflected in its bench ruling in which it denied
Defendants Fed. R. Civ. P. 52(c) motion concerning Clean Water Act displacement of the
States federal common law of nuisance claim. See Dec. 22, 2009 Daily Trans., 9304:3-9311:15
The AEP decision is relevant to the issues in this case in at least two significant respects.
First, the AEP decision confirms that [t]he test for whether congressional legislation
excludes the declaration of federal common law is simply whether the statute speak[s] directly
1
Case 4:05-cv-00329-GKF-PJC Document 2912 Filed in USDC ND/OK on 07/06/11 Page 2 of 8
to [the] question at issue. AEP at 10 (citations omitted). Noting that Massachusetts [v. EPA,
549 U.S. 497 (2007)] made plain that emissions of carbon dioxide qualify as air pollution subject
to regulation under the [Clean Air] Act, the Supreme Court concluded that the Clean Air Act
spoke directly to question at issue and that accordingly there was displacement of the federal
common law. AEP at 10-11; see also AEP at 12 (The critical point is that Congress delegated
to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants;
Second, the AEP decision confirms that this Court applied the correct test in analyzing
and denying Defendants Fed. R. Civ. P. 52(c) motion concerning Clean Water Act displacement
of the States federal common law of nuisance claim. See Dec. 22, 2009 Daily Trans., 9304:3-
9311:15. Specifically, this Court noted the Tenth Circuit decisions in Defenders of Wildlife v.
EPA, 415 F.3d 1121 (10th Cir. 2005), and American Wildlands v. Browner, 260 F.3d 1192 (10th
Cir. 2001), which indicate that the CWA does not directly or comprehensively regulate nonpoint
source pollution, and concluded in a lengthy and detailed oral order that the defendants have not
shown that the 1987 amendments to the Clean Water Act legislate a remedy or actually regulate
the nonpoint source alleged nuisance at issue. See Dec. 22, 2009 Daily Trans., 9311:2-5. This
Courts analysis was therefore consistent with the test set forth in AEP.
Respectfully Submitted,
/s/Robert A. Nance
M. David Riggs OBA #7583
Joseph P. Lennart OBA #5371
Richard T. Garren OBA #3253
Sharon K. Weaver OBA #19010
Robert A. Nance OBA #6581
D. Sharon Gentry OBA #15641
David P. Page OBA #6852
RIGGS, ABNEY, NEAL, TURPEN,
ORBISON & LEWIS
2
Case 4:05-cv-00329-GKF-PJC Document 2912 Filed in USDC ND/OK on 07/06/11 Page 3 of 8
Frederick C. Baker
(admitted pro hac vice)
MOTLEY RICE, LLC
28 Bridgeside Boulevard
Mount Pleasant, SC 29465
(843) 216-9280
William H. Narwold
(admitted pro hac vice)
Ingrid L. Moll
(admitted pro hac vice)
MOTLEY RICE, LLC
20 Church Street, 17th Floor
Hartford, CT 06103
(860) 882-1676
Jonathan D. Orent
(admitted pro hac vice)
Michael G. Rousseau
(admitted pro hac vice)
Fidelma L. Fitzpatrick
(admitted pro hac vice)
MOTLEY RICE, LLC
321 South Main Street
Providence, RI 02940
(401) 457-7700
3
Case 4:05-cv-00329-GKF-PJC Document 2912 Filed in USDC ND/OK on 07/06/11 Page 4 of 8
CERTIFICATE OF SERVICE
I hereby certify that on this 6th day of July, 2011, I electronically transmitted the above
and foregoing pleading to the Clerk of the Court using the ECF System for filing and a
transmittal of a Notice of Electronic Filing to the following ECF registrants:
4
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5
Case 4:05-cv-00329-GKF-PJC Document 2912 Filed in USDC ND/OK on 07/06/11 Page 6 of 8
6
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7
Case 4:05-cv-00329-GKF-PJC Document 2912 Filed in USDC ND/OK on 07/06/11 Page 8 of 8
/s/Robert A. Nance
8
Case 4:05-cv-00329-GKF-PJC Document 2912-1 Filed in USDC ND/OK on 07/06/11 Page 1 of 9
EXHIBIT A
Case 4:05-cv-00329-GKF-PJC Document 2912-1 Filed in USDC ND/OK on 07/06/11 Page 2 of 9
Page 1
2 of 225 DOCUMENTS
No. 10-174
NOTICE: York City; the second joined three nonprofit land trusts.
According to the complaint, the defendants are the larg-
The LEXIS pagination of this document is subject to
est emitters [*2] of carbon dioxide in the Nation. By
change pending release of the final published version.
contributing to global warming, the plaintiffs asserted,
the defendants' emissions substantially and unreasonably
PRIOR HISTORY: [*1]
interfered with public rights, in violation of the federal
ON WRIT OF CERTIORARI TO THE UNITED
common law of interstate nuisance, or, in the alternative,
STATES COURT OF APPEALS FOR THE SECOND
of state tort law. All plaintiffs ask for a decree setting
CIRCUIT.
carbon-dioxide emissions for each defendant at an initial
Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 2009
cap, to be further reduced annually.
U.S. App. LEXIS 20873 (2d Cir. N.Y., 2009)
The District Court dismissed both suits as presenting
DISPOSITION: Reversed and remanded. nonjusticiable political questions, but the Second Circuit
reversed. On the threshold questions, the Circuit held
that the suits were not barred by the political question
SYLLABUS doctrine and that the plaintiffs had adequately alleged
Article III standing. On the merits, the court held that the
In Massachusetts v. EPA, 549 U.S. 497, 127 S. Ct.
plaintiffs had stated a claim under the "federal common
1438, 167 L. Ed. 2d 248, this Court held that the Clean
law of nuisance," relying on this Court's decisions hold-
Air Act authorizes federal regulation of emissions of
ing that States may maintain suits to abate air and water
carbon dioxide and other greenhouse gases, and that the
pollution produced by other States or by out-of-state in-
Environmental Protection Agency (EPA) had misread
dustry, see, e.g., Illinois v. Milwaukee, 406 U.S. 91, 93,
that Act when it denied a rulemaking petition seeking
92 S. Ct. 1385, 31 L. Ed. 2d 712 (Milwaukee I). The
controls on greenhouse gas emissions from new motor
court further determined that the Clean Air Act did not
vehicles. In response, EPA commenced a rulemaking
"displace" federal common law.
under 111 of the Act, 42 U.S.C. 7411, to set limits on
greenhouse gas emissions from new, modified, and exist- Held:
ing fossil-fuel fired power plants. Pursuant to a settle-
1. The Second Circuit's exercise of jurisdiction [*3]
ment finalized in March 2011, EPA has committed to
is affirmed by an equally divided Court. P. 6.
issuing a final rule by May 2012.
2. The Clean Air Act and the EPA action the Act au-
The lawsuits considered here began well before EPA
thorizes displace any federal common-law right to seek
initiated efforts to regulate greenhouse gases. Two
abatement of carbon-dioxide emissions from fossil-fuel
groups of plaintiffs, respondents here, filed separate
fired power plants. Pp. 6-16.
complaints in a Federal District Court against the same
five major electric power companies, petitioners here. (a) Since Erie R. Co. v. Tompkins, 304 U.S. 64, 78,
One group of plaintiffs included eight States and New 58 S. Ct. 817, 82 L. Ed. 1188, recognized that there "is
Case 4:05-cv-00329-GKF-PJC Document 2912-1 Filed in USDC ND/OK on 07/06/11 Page 3 of 9
Page 2
2011 U.S. LEXIS 4565, *
no federal general common law," a new federal common reviewable in federal court. See 7607(b)(1). The Act
law has emerged for subjects of national concern. When itself thus provides a means to seek limits on emissions
dealing "with air and water in their ambient or interstate of carbon dioxide from domestic power plants -- the
aspects, there is a federal common law." Milwaukee I, same relief the plaintiffs seek by invoking federal com-
406 U.S., at 103, 92 S. Ct. 1385, 31 L. Ed. 2d 712. Deci- mon law. There is no room for a parallel track. Pp. 9-11.
sions of this Court predating Erie, but compatible with
(c) The Court rejects the plaintiffs' argument, and
the emerging distinction between general common law
the Second Circuit's holding, that federal common law is
and the new federal common law, have approved federal
not displaced until EPA actually exercises its regulatory
common-law suits brought by one State to abate pollu-
authority by setting emissions standards for the defen-
tion emanating from another State. See, e.g., Missouri v.
dants' [*6] plants. The relevant question for displace-
Illinois, 180 U.S. 208, 241-243, 21 S. Ct. 331, 45 L. Ed.
ment purposes is "whether the field has been occupied,
497. The plaintiffs contend that their right to maintain
not whether it has been occupied in a particular manner."
this suit follows from such cases. But recognition that a
Milwaukee II, 451 U.S., at 324, 101 S. Ct. 1784, 68 L.
subject is meet for federal law governance does not nec-
Ed. 2d 114. The Clean Air Act is no less an exercise of
essarily mean that federal courts should create the con-
the Legislature's "considered judgment" concerning air
trolling law. The Court need not address the question
pollution regulation because it permits emissions until
whether, absent the Clean Air Act and the EPA actions it
EPA acts. The critical point is that Congress delegated to
authorizes, [*4] the plaintiffs could state a federal com-
EPA the decision whether and how to regulate carbon-
mon-law claim for curtailment of greenhouse gas emis-
dioxide emissions from power plants; the delegation dis-
sions because of their contribution to global warming.
places federal common law. If the plaintiffs in this case
Any such claim would be displaced by the federal legis-
are dissatisfied with the outcome of EPA's forthcoming
lation authorizing EPA to regulate carbon-dioxide emis-
rulemaking, their recourse is to seek Court of Appeals
sions. Pp. 6-9.
review, and, ultimately, to petition for certiorari.
(b) "[W]hen Congress addresses a question previ-
The Act's prescribed order of decisionmaking -- first
ously governed by a decision rested on federal common
by the expert agency, and then by federal judges -- is yet
law the need for such an unusual exercise of law-making
another reason to resist setting emissions standards by
by federal courts disappears." Milwaukee v. Illinois, 451
judicial decree under federal tort law. The appropriate
U.S. 304, 314, 101 S. Ct. 1784, 68 L. Ed. 2d 114 (Mil-
amount of regulation in a particular greenhouse gas-
waukee II). Legislative displacement of federal common
producing sector requires informed assessment of com-
law does not require the "same sort of evidence of a clear
peting interests. The Clean Air Act entrusts such com-
and manifest [congressional] purpose" demanded for
plex balancing to EPA in the first instance, in combina-
preemption of state law. Id., at 317, 101 S. Ct. 1784, 68
tion with state regulators. The expert [*7] agency is
L. Ed. 2d 114. Rather, the test is simply whether the stat-
surely better equipped to do the job than federal judges,
ute "speak[s] directly to [the] question" at issue. Mobil
who lack the scientific, economic, and technological
Oil Corp. v. Higginbotham, 436 U.S. 618, 625, 98 S. Ct.
resources an agency can utilize in coping with issues of
2010, 56 L. Ed. 2d 581. Here, Massachusetts made plain
this order. The plaintiffs' proposal to have federal judges
that emissions of carbon dioxide qualify as air pollution
determine, in the first instance, what amount of carbon-
subject to regulation under the Clean Air Act. 549 U.S.,
dioxide emissions is "unreasonable" and what level of
at 528-529, 127 S. Ct. 1438, 167 L. Ed. 2d 248. And it is
reduction is necessary cannot be reconciled with Con-
equally plain that the Act "speaks directly" to emissions
gress' scheme. Pp. 12-15.
of carbon dioxide from the defendants' plants. The Act
directs EPA to establish emissions standards for catego- (d) The plaintiffs also sought relief under state nui-
ries of stationary [*5] sources that, "in [the Administra- sance law. The Second Circuit did not reach those claims
tor's] judgment," "caus[e], or contribut[e] significantly because it held that federal common law governed. In
to, air pollution which may reasonably be anticipated to light of the holding here that the Clean Air Act displaces
endanger public health or welfare." 7411(b)(1)(A). federal common law, the availability vel non of a state
Once EPA lists a category, it must establish performance lawsuit depends, inter alia, on the preemptive effect of
standards for emission of pollutants from new or modi- the federal Act. Because none of the parties have briefed
fied sources within that category, 7411(b)(1)(B), and, preemption or otherwise addressed the availability of a
most relevant here, must regulate existing sources within claim under state nuisance law, the matter is left for con-
the same category, 7411(d). The Act also provides sideration on remand. Pp. 15-16.
multiple avenues for enforcement. If EPA does not set
emissions limits for a particular pollutant or source of 582 F.3d 309, reversed and remanded.
pollution, States and private parties may petition for a
rulemaking on the matter, and EPA's response will be
Case 4:05-cv-00329-GKF-PJC Document 2912-1 Filed in USDC ND/OK on 07/06/11 Page 4 of 9
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2011 U.S. LEXIS 4565, *
COUNSEL: Peter D. Keisler argued the cause for peti- greenhouse gas emission standards and had offered no
tioners. "reasoned explanation" for failing to do so, we concluded
that the agency had not acted "in accordance with law"
Neal Kumar Katyal argued the cause for respondent. when it denied the requested rulemaking. Id., at 534-535,
127 S. Ct. 1438, 167 L. Ed. 2d 248 (quoting
Barbara D. Underwood argued the cause for respon- 7607(d)(9)(A)).
dents.
1 In addition to carbon dioxide, the primary
JUDGES: GINSBURG, J., delivered the opinion of the greenhouse gases emitted by human activities in-
Court, in which ROBERTS, C. J., and SCALIA, KEN- clude methane, nitrous oxide, hydrofluorocar-
NEDY, BREYER, and KAGAN, JJ., joined. ALITO, J., bons, perfluorocarbons, and sulfur hexafluoride.
filed an opinion concurring in part and concurring in the 74 Fed. Reg. 66499.
judgment, [*8] in which THOMAS, J., joined. SO-
Responding to our decision in Massachusetts, EPA
TOMAYOR, J., took no part in the consideration or de-
undertook greenhouse gas regulation. In December 2009,
cision of the case.
the agency concluded that greenhouse gas emissions
from motor vehicles "cause, or contribute to, air pollu-
OPINION BY: GINSBURG
tion which [*10] may reasonably be anticipated to en-
danger public health or welfare," the Act's regulatory
OPINION
trigger. 7521(a)(1); 74 Fed. Reg. 66496. The agency
JUSTICE GINSBURG delivered the opinion of the observed that "atmospheric greenhouse gas concentra-
Court. tions are now at elevated and essentially unprecedented
levels," almost entirely "due to anthropogenic emis-
We address in this opinion the question whether the
sions," id., at 66517; mean global temperatures, the
plaintiffs (several States, the city of New York, and three
agency continued, demonstrate an "unambiguous warm-
private land trusts) can maintain federal common law
ing trend over the last 100 years," and particularly "over
public nuisance claims against carbon-dioxide emitters
the past 30 years," ibid. Acknowledging that not all sci-
(four private power companies and the federal Tennessee
entists agreed on the causes and consequences of the rise
Valley Authority). As relief, the plaintiffs ask for a de-
in global temperatures, id., at 66506, 66518, 66523-
cree setting carbon-dioxide emissions for each defendant
66524, EPA concluded that "compelling" evidence sup-
at an initial cap, to be further reduced annually. The
ported the "attribution of observed climate change to
Clean Air Act and the Environmental Protection Agency
anthropogenic" emissions of greenhouse gases, id., at
action the Act authorizes, we hold, displace the claims
66518. Consequent dangers of greenhouse gas emissions,
the plaintiffs seek to pursue.
EPA determined, included increases in heat-related
I deaths; coastal inundation and erosion caused by melting
icecaps and rising sea levels; more frequent and intense
In Massachusetts v. EPA, 549 U.S. 497, 127 S. Ct.
hurricanes, floods, and other "extreme weather events"
1438, 167 L. Ed. 2d 248 (2007), this Court held that the that cause death and destroy infrastructure; drought due
Clean Air Act, 42 U.S.C. 7401 et seq., authorizes fed- to reductions in mountain snowpack and shifting precipi-
eral regulation of emissions of carbon dioxide and other
tation patterns; destruction [*11] of ecosystems support-
greenhouse gases. "[N]aturally present in the atmosphere ing animals and plants; and potentially "significant dis-
and . . . also emitted by human activities," greenhouse ruptions" of food production. Id., at 66524-66535. 2
gases are so named because they "trap . . . heat that
would otherwise escape from the [Earth's] atmosphere, 2 For views opposing EPA's, see, e.g.,
and thus form the greenhouse effect that helps keep [*9] Dawidoff, The Civil Heretic, N. Y. Times Maga-
the Earth warm enough for life." 74 Fed. Reg. 66499
zine 32 (March 29, 2009). The Court, we caution,
(2009). 1 Massachusetts held that the Environmental Pro- endorses no particular view of the complicated is-
tection Agency (EPA) had misread the Clean Air Act sues related to carbon-dioxide emissions and cli-
when it denied a rulemaking petition seeking controls on
mate change.
greenhouse gas emissions from new motor vehicles. 549
U.S., at 510-511, 127 S. Ct. 1438, 167 L. Ed. 2d 248. EPA and the Department of Transportation subse-
Greenhouse gases, we determined, qualify as "air pollut- quently issued a joint final rule regulating emissions
ant[s]" within the meaning of the governing Clean Air from light-duty vehicles, see 75 Fed. Reg. 25324 (2010),
Act provision, id., at 528-529, 127 S. Ct. 1438, 167 L. and initiated a joint rulemaking covering medium- and
Ed. 2d 248 (quoting 7602(g)); they are therefore within heavy-duty vehicles, see id., at 74152. EPA also began
EPA's regulatory ken. Because EPA had authority to set phasing in requirements that new or modified "[m]ajor
Case 4:05-cv-00329-GKF-PJC Document 2912-1 Filed in USDC ND/OK on 07/06/11 Page 5 of 9
Page 4
2011 U.S. LEXIS 4565, *
[greenhouse gas] emitting facilities" use the "best avail- its carbon dioxide emissions and then reduce them by a
able control technology." 7475(a)(4); 75 Fed. Reg. specified percentage each year for at least a decade."
31520-31521. Finally, EPA commenced a rulemaking App. 110, 153.
under 111 of the Act, 42 U.S.C. 7411, to set limits on
The District Court dismissed both suits as presenting
greenhouse gas emissions from new, modified, and exist-
non-justiciable political questions, citing Baker v. Carr,
ing fossil-fuel fired power plants. Pursuant to a settle-
369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), but
ment finalized in March 2011, EPA has committed to
[*14] the Second Circuit reversed, 582 F.3d 309 (2009).
issuing a proposed rule by July 2011, and a final rule by
On the threshold questions, the Court of Appeals held
May 2012. See 75 Fed. Reg. 82392; Reply Brief for
that the suits were not barred by the political question
Tennessee Valley Authority [*12] 18.
doctrine, id., at 332, and that the plaintiffs had ade-
II quately alleged Article III standing, id., at 349.
The lawsuits we consider here began well before Turning to the merits, the Second Circuit held that
EPA initiated the efforts to regulate greenhouse gases all plaintiffs had stated a claim under the "federal com-
just described. In July 2004, two groups of plaintiffs filed mon law of nuisance." Id., at 358, 371. For this determi-
separate complaints in the Southern District of New nation, the court relied dominantly on a series of this
York against the same five major electric power compa- Court's decisions holding that States may maintain suits
nies. The first group of plaintiffs included eight States 3 to abate air and water pollution produced by other States
and New York City, the second joined three nonprofit or by out-of-state industry. Id., at 350-351; see, e.g., Illi-
land trusts 4; both groups are respondents here. The de- nois v. Milwaukee, 406 U.S. 91, 93, 92 S. Ct. 1385, 31 L.
fendants, now petitioners, are four private companies 5 Ed. 2d 712 (1972) (Milwaukee I) (recognizing right of
and the Tennessee Valley Authority, a federally owned Illinois to sue in federal district court to abate discharge
corporation that operates fossil-fuel fired power plants in of sewage into Lake Michigan).
several States. According to the complaints, the defen-
The Court of Appeals further determined that the
dants "are the five largest emitters of carbon dioxide in
Clean Air Act did not "displace" federal common law. In
the United States." App. 57, 118. Their collective annual
Milwaukee v. Illinois, 451 U.S. 304, 316-319, 101 S. Ct.
emissions of 650 million tons constitute 25 percent of
1784, 68 L. Ed. 2d 114 (1981) (Milwaukee II), this Court
emissions from the domestic electric power sector, 10
held that Congress had displaced the federal common
percent of emissions from all domestic human activities,
law right of action recognized in Milwaukee I by adopt-
ibid., and 2.5 percent of all anthropogenic emissions
ing amendments to the Clean Water Act, 33 U.S.C.
worldwide, App. to Pet. for Cert. 72a.
1251 et seq. That legislation [*15] installed an all-
encompassing regulatory program, supervised by an ex-
3 California, Connecticut, Iowa, New Jersey,
pert administrative agency, to deal comprehensively with
New York, Rhode Island, Vermont, and Wiscon-
interstate water pollution. The legislation itself prohib-
sin, although New Jersey and Wisconsin are no
ited the discharge of pollutants into the waters of the
longer participating. Brief [*13] for Respondents
United States without a permit from a proper permitting
Connecticut et al. 3, n. 1.
authority. Milwaukee II, 451 U.S., at 310-311, 101 S. Ct.
4 Open Space Institute, Inc., Open Space Con-
1784, 68 L. Ed. 2d 114 (citing 1311). At the time of the
servancy, Inc., and Audubon Society of New
Second Circuit's decision, by contrast, EPA had not yet
Hampshire.
promulgated any rule regulating greenhouse gases, a fact
5 American Electric Power Company, Inc. (and
the court thought dispositive. 582 F.3d at 379-381. "Un-
a wholly owned subsidiary), Southern Company,
til EPA completes the rulemaking process," the court
Xcel Energy Inc., and Cinergy Corporation.
reasoned, "we cannot speculate as to whether the hypo-
By contributing to global warming, the plaintiffs as- thetical regulation of greenhouse gases under the Clean
serted, the defendants' carbon-dioxide emissions created Air Act would in fact 'spea[k] directly' to the 'particular
a "substantial and unreasonable interference with public issue' raised here by Plaintiffs." Id., at 380.
rights," in violation of the federal common law of inter-
We granted certiorari. 562 U.S. ___, 131 S. Ct. 813,
state nuisance, or, in the alternative, of state tort law.
178 L. Ed. 2d 530 (2010).
App. 103-105, 145-147. The States and New York City
alleged that public lands, infrastructure, and health were III
at risk from climate change. App. 88-93. The trusts urged
The petitioners contend that the federal courts lack
that climate change would destroy habitats for animals
and rare species of trees and plants on land the trusts authority to adjudicate this case. Four members of the
owned and conserved. App. 139-145. All plaintiffs Court would hold that at least some plaintiffs have Arti-
sought injunctive relief requiring each defendant "to cap cle III standing under Massachusetts, which permitted a
Case 4:05-cv-00329-GKF-PJC Document 2912-1 Filed in USDC ND/OK on 07/06/11 Page 6 of 9
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2011 U.S. LEXIS 4565, *
State to challenge EPA's refusal to regulate greenhouse L. Ed. 497 (1901) (permitting suit by Missouri to enjoin
gas emissions, 549 U.S., at 520-526, 127 S. Ct. 1438, Chicago from discharging untreated sewage into inter-
167 L. Ed. 248; and, further, that no other [*16] thresh- state [*18] waters); New Jersey v. City of New York, 283
old obstacle bars review. 6 Four members of the Court, U.S. 473, 477, 481-483, 51 S. Ct. 519, 75 L. Ed. 1176
adhering to a dissenting opinion in Massachusetts, 549 (1931) (ordering New York City to stop dumping gar-
U.S., at 535, 127 S. Ct. 1438, 167 L. Ed. 248, or regard- bage off New Jersey coast); Georgia v. Tennessee Cop-
ing that decision as distinguishable, would hold that none per Co., 240 U.S. 650, 36 S. Ct. 465, 60 L. Ed. 846
of the plaintiffs have Article III standing. We therefore (1916) (ordering private copper companies to curtail
affirm, by an equally divided Court, the Second Circuit's sulfur-dioxide discharges in Tennessee that caused harm
exercise of jurisdiction and proceed to the merits. See in Georgia). See also Milwaukee I, 406 U.S., at 107, 92
Nye v. United States, 313 U.S. 33, 44, 61 S. Ct. 810, 85 S. Ct. 1385, 31 L. Ed. 2d 712 (post-Erie decision uphold-
L. Ed. 1172 (1941). ing suit by Illinois to abate sewage discharges into Lake
Michigan). The plaintiffs contend that their right to
6 In addition to renewing the political question maintain this suit follows inexorably from that line of
argument made below, the petitioners now assert decisions.
an additional threshold obstacle: They seek dis-
Recognition that a subject is meet for federal law
missal because of a "prudential" bar to the adju-
governance, however, does not necessarily mean that
dication of generalized grievances, purportedly
federal courts should create the controlling law. Absent a
distinct from Article III's bar. See Brief for Ten-
demonstrated need for a federal rule of decision, the
nessee Valley Authority 14-24; Brief for Peti-
Court has taken "the prudent course" of "adopt[ing] the
tioners 30-31.
readymade body of state law as the federal rule of deci-
IV sion until Congress strikes a different accommodation."
United States v. Kimbell Foods, Inc., 440 U.S. 715, 740,
A
99 S. Ct. 1448, 59 L. Ed. 2d 711 (1979); see Bank of
"There is no federal general common law," Erie R. America Nat'l Trust & Sav. Ass'n v. Parnell, 352 U.S. 29,
Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. 32-34, 77 S. Ct. 119, 1 L. Ed. 2d 93 (1956). And where,
Ed. 1188 (1938), famously recognized. In the wake of as here, borrowing the law of a particular State would be
Erie, however, a keener understanding developed. See inappropriate, the Court remains mindful that [*19] it
generally Friendly, In Praise of Erie -- And of the New does not have creative power akin to that vested in Con-
Federal Common Law, 39 N. Y. U. L. Rev. 383 (1964). gress. See Missouri v. Illinois, 200 U.S. 496, 519, 26 S.
Erie "le[ft] to the states what ought be left to them," id., Ct. 268, 50 L. Ed. 572 (1906) ("fact that this court must
at 405, and thus required "federal courts [to] follow state decide does not mean, of course, that it takes the place of
decisions on matters of substantive [*17] law appropri- a legislature"); cf. United States v. Standard Oil Co. of
ately cognizable by the states," id., at 422. Erie also Cal., 332 U.S. 301, 308, 314, 67 S. Ct. 1604, 91 L. Ed.
sparked "the emergence of a federal decisional law in 2067 (1947) (holding that federal law determines
areas of national concern." Id., at 405. The "new" federal whether Government could secure indemnity from a
common law addresses "subjects within national legisla- company whose truck injured a United States soldier, but
tive power where Congress has so directed" or where the declining to impose such an indemnity absent action by
basic scheme of the Constitution so demands. Id., at 408, Congress, "the primary and most often the exclusive ar-
n. 119, 421-422. Environmental protection is undoubt- biter of federal fiscal affairs").
edly an area "within national legislative power," one in
In the cases on which the plaintiffs heavily rely,
which federal courts may fill in "statutory interstices,"
States were permitted to sue to challenge activity harm-
and, if necessary, even "fashion federal law." Id., at 421-
ful to their citizens' health and welfare. We have not yet
422. As the Court stated in Milwaukee I: "When we deal
decided whether private citizens (here, the land trusts) or
with air and water in their ambient or interstate aspects,
political subdivisions (New York City) of a State may
there is a federal common law." 406 U.S., at 103, 92 S.
invoke the federal common law of nuisance to abate out-
Ct. 1385, 31 L. Ed. 2d 712.
of-state pollution. Nor have we ever held that a State
Decisions of this Court predating Erie, but compati- may sue to abate any and all manner of pollution origi-
ble with the distinction emerging from that decision be- nating outside its borders.
tween "general common law" and "specialized federal
The defendants argue that considerations of scale
common law," Friendly, supra, at 405, have approved
and complexity distinguish global warming from the
federal common law suits brought by one State to abate
more bounded pollution giving rise to past federal [*20]
pollution emanating from another State. See, e.g., Mis-
nuisance suits. Greenhouse gases once emitted "become
souri v. Illinois, 180 U.S. 208, 241-243, 21 S. Ct. 331, 45
well mixed in the atmosphere," 74 Fed. Reg. 66514;
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2011 U.S. LEXIS 4565, *
emissions in New Jersey may contribute no more to of N. Y., 470 U.S. 226, 236-237, 105 S. Ct. 1245, 84 L.
flooding in New York than emissions in China. Cf. Brief Ed. 2d 169 (1985).
for Petitioners 18-19. The plaintiffs, on the other hand,
We hold that the Clean Air Act and the EPA actions
contend that an equitable remedy against the largest
it authorizes displace any federal common law right to
emitters of carbon dioxide in the United States is in order
seek abatement of carbon-dioxide emissions from fossil-
and not beyond judicial competence. See Brief for Re-
fuel fired power plants. Massachusetts made plain that
spondents Open Space Institute et al. 32-35. And we
emissions of carbon dioxide qualify as air pollution sub-
have recognized that public nuisance law, like common
ject to regulation under the Act. 549 U.S., at 528-529,
law generally, adapts to changing scientific and factual
127 S. Ct. 1438, 167 L. Ed. 2d 248. And we think it
circumstances. Missouri, 200 U.S., at 522, 26 S. Ct. 268,
equally plain that the Act "speaks directly" to emissions
50 L. Ed. 572 (adjudicating claim though it did not con-
of carbon dioxide from the defendants' plants.
cern "nuisance of the simple kind that was known to the
older common law"); see also D'Oench, Duhme & Co. v. Section 111 of the Act directs the EPA Administra-
FDIC, 315 U.S. 447, 472, 62 S. Ct. 676, 86 L. Ed. 956 tor to list "categories of stationary sources" that "in [her]
(1942) (Jackson, J., concurring) ("federal courts are free judgment . . . caus[e], or contribut[e] significantly to, air
to apply the traditional common-law technique of deci- pollution which may reasonably be anticipated to endan-
sion" when fashioning federal common law). ger public health or welfare." 7411(b)(1)(A). Once
EPA lists a category, the agency must establish standards
We need not address the parties' dispute in this re-
of performance for emission of pollutants from new or
gard. For it is an academic question whether, in the ab-
modified sources within that category. 7411(b)(1)(B);
sence of the Clean Air Act and the EPA actions the Act
see also 7411(a)(2). And, most [*23] relevant here,
authorizes, the plaintiffs could state a federal common
7411(d) then requires regulation of existing sources
law claim for curtailment [*21] of greenhouse gas emis-
within the same category. 7 For existing sources, EPA
sions because of their contribution to global warming.
issues emissions guidelines, see 40 C. F. R. 60.22, .23
Any such claim would be displaced by the federal legis-
(2009); in compliance with those guidelines and subject
lation authorizing EPA to regulate carbon-dioxide emis-
to federal oversight, the States then issue performance
sions.
standards for stationary sources within their jurisdiction,
B 7411(d)(1).
"[W]hen Congress addresses a question previously
7 There is an exception: EPA may not employ
governed by a decision rested on federal common law,"
7411(d) if existing stationary sources of the pol-
the Court has explained, "the need for such an unusual
lutant in question are regulated under the national
exercise of law-making by federal courts disappears."
ambient air quality standard program, 7408-
Milwaukee II, 451 U.S., at 314, 101 S. Ct. 1784, 68 L.
7410, or the "hazardous air pollutants" program,
Ed. 2d 114 (holding that amendments to the Clean Water
7412. See 7411(d)(1).
Act displaced the nuisance claim recognized in Milwau-
kee I). Legislative displacement of federal common law The Act provides multiple avenues for enforcement.
does not require the "same sort of evidence of a clear and See County of Oneida, 470 U.S., at 237-239, 105 S. Ct.
manifest [congressional] purpose" demanded for preemp- 1245, 84 L. Ed. 2d 169 (reach of remedial provisions is
tion of state law. Id., at 317, 101 S. Ct. 1784, 68 L. Ed. important to determination whether statute displaces fed-
2d 114. "'[D]ue regard for the presuppositions of our eral common law). EPA may delegate implementation
embracing federal system . . . as a promoter of democ- and enforcement authority to the States, 7411(c)(1),
racy,'" id., at 316, 101 S. Ct. 1784, 68 L. Ed. 2d 114 (d)(1), but the agency retains the power to inspect and
(quoting San Diego Building Trades Council v. Garmon, monitor regulated sources, to impose administrative pen-
359 U.S. 236, 243, 79 S. Ct. 773, 3 L. Ed. 2d 775 alties for noncompliance, and to commence civil actions
(1959)), does not enter the calculus, for it is primarily the against polluters in federal court. 7411(c)(2), (d)(2),
office of Congress, not the federal courts, to prescribe 7413, 7414. In specified circumstances, the Act imposes
national policy in areas of special federal interest. TVA v. [*24] criminal penalties on any person who knowingly
Hill, 437 U.S. 153, 194, 98 S. Ct. 2279, 57 L. Ed. 2d 117 violates emissions standards issued under 7411. See
(1978). The test for whether congressional legislation 7413(c). And the Act provides for private enforcement.
excludes the declaration [*22] of federal common law is If States (or EPA) fail to enforce emissions limits against
simply whether the statute "speak[s] directly to [the] regulated sources, the Act permits "any person" to bring
question" at issue. Mobil Oil Corp. v. Higginbotham, 436 a civil enforcement action in federal court. 7604(a).
U.S. 618, 625, 98 S. Ct. 2010, 56 L. Ed. 2d 581 (1978);
If EPA does not set emissions limits for a particular
see Milwaukee II, 451 U.S., at 315, 101 S. Ct. 1784, 68
pollutant or source of pollution, States and private parties
L. Ed. 2d 114; County of Oneida v. Oneida Indian Nation
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2011 U.S. LEXIS 4565, *
may petition for a rulemaking on the matter, and EPA's EPA's judgment, we hasten to add, would not escape
response will be reviewable in federal court. See judicial review. Federal courts, we earlier observed, see
7607(b)(1); Massachusetts, 549 U.S., at 516-517, 529, supra, at 11, can review agency action (or a final rule
127 S. Ct. 1438, 167 L. Ed. 2d 248. As earlier noted, see declining to take action) to ensure compliance with the
supra, at 3, EPA is currently engaged in a 7411 rule- statute Congress enacted. As we have noted, see supra,
making to set standards for greenhouse gas emissions at 10, the Clean Air Act directs EPA to establish emis-
from fossil-fuel fired power plants. To settle litigation sions standards for categories of stationary sources that,
brought under 7607(b) by a group that included the "in [the Administrator's] judgment," "caus[e], or con-
majority of the plaintiffs in this very case, the agency tribut[e] significantly to, air pollution which may rea-
agreed to complete that rulemaking by May 2012. 75 sonably be anticipated to endanger public health or wel-
Fed. Reg. 82392. The Act itself thus provides a means to fare." 7411(b)(1)(A). "[T]he use of the word 'judg-
seek limits on emissions of carbon dioxide from domes- ment,'" we explained in Massachusetts, "is [*27] not a
tic power plants -- the same relief the plaintiffs seek by roving license to ignore the statutory text." 549 U.S., at
invoking federal common law. We see no room for a 533, 127 S. Ct. 1438, 167 L. Ed. 248. "It is but a direc-
parallel track. tion to exercise discretion within defined statutory lim-
its." Ibid. EPA may not decline to regulate carbon-
C
dioxide emissions from power plants if refusal to act
The plaintiffs [*25] argue, as the Second Circuit would be "arbitrary, capricious, an abuse of discretion, or
held, that federal common law is not displaced until EPA otherwise not in accordance with law." 7607(d)(9)(A).
actually exercises its regulatory authority, i.e., until it If the plaintiffs in this case are dissatisfied with the out-
sets standards governing emissions from the defendants' come of EPA's forthcoming rulemaking, their recourse
plants. We disagree. under federal law is to seek Court of Appeals review,
and, ultimately, to petition for certiorari in this Court.
The sewage discharges at issue in Milwaukee II, we
do not overlook, were subject to effluent limits set by Indeed, this prescribed order of decisionmaking --
EPA; under the displacing statute, "[e]very point source the first decider under the Act is the expert administra-
discharge" of water pollution was "prohibited unless tive agency, the second, federal judges -- is yet another
covered by a permit." 451 U.S., at 318-320, 101 S. Ct. reason to resist setting emissions standards by judicial
1784, 68 L. Ed. 2d 114 (emphasis deleted). As Milwau- decree under federal tort law. The appropriate amount of
kee II made clear, however, the relevant question for regulation in any particular greenhouse gas-producing
purposes of displacement is "whether the field has been sector cannot be prescribed in a vacuum: as with other
occupied, not whether it has been occupied in a particu- questions of national or international policy, informed
lar manner." Id., at 324, 101 S. Ct. 1784, 68 L. Ed. 2d assessment of competing interests is required. Along
114. Of necessity, Congress selects different regulatory with the environmental benefit potentially achievable,
regimes to address different problems. Congress could our Nation's energy needs and the possibility of eco-
hardly preemptively prohibit every discharge of carbon nomic [*28] disruption must weigh in the balance.
dioxide unless covered by a permit. After all, we each
The Clean Air Act entrusts such complex balancing
emit carbon dioxide merely by breathing.
to EPA in the first instance, in combination with state
The Clean Air Act is no less an exercise of the legis- regulators. Each "standard of performance" EPA sets
lature's "considered judgment" concerning the regulation must "tak[e] into account the cost of achieving [emis-
of air pollution because it permits emissions until EPA sions] reduction and any nonair quality health and envi-
acts. See Middlesex County Sewerage Auth. v. National ronmental impact and energy requirements."
Sea Clammers Ass'n, 453 U.S. 1, 22, n. 32, 101 S. Ct. 7411(a)(1), (b)(1)(B), (d)(1); see also 40 C. F. R.
2615, 69 L. Ed. 2d 435 (1981) [*26] (finding displace- 60.24(f) (EPA may permit state plans to deviate from
ment although Congress "allowed some continued dump- generally applicable emissions standards upon demon-
ing of sludge" prior to a certain date). The critical point stration that costs are "[u]nreasonable"). EPA may "dis-
is that Congress delegated to EPA the decision whether tinguish among classes, types, and sizes" of stationary
and how to regulate carbon-dioxide emissions from sources in apportioning responsibility for emissions re-
power plants; the delegation is what displaces federal ductions. 7411(b)(2), (d); see also 40 C. F. R.
common law. Indeed, were EPA to decline to regulate 60.22(b)(5). And the agency may waive compliance with
carbon-dioxide emissions altogether at the conclusion of emission limits to permit a facility to test drive an "inno-
its ongoing 7411 rulemaking, the federal courts would vative technological system" that has "not [yet] been
have no warrant to employ the federal common law of adequately demonstrated." 7411(j)(1)(A). The Act en-
nuisance to upset the agency's expert determination. visions extensive cooperation between federal and state
authorities, see 7401(a), (b), generally permitting each
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2011 U.S. LEXIS 4565, *
The judgments the plaintiffs would commit to fed- JUSTICE ALITO, with whom JUSTICE THOMAS
joins, concurring in part and concurring in the judgment.
eral judges, in suits that could be filed in any federal dis-
trict, cannot be reconciled with the decisionmaking I concur in the judgment, and I agree with the
scheme Congress enacted. The Second Circuit erred, we Court's displacement analysis on the assumption (which I
hold, in ruling that federal judges may set limits on make for [*32] the sake of argument because no party
greenhouse gas emissions in face of a law empowering contends otherwise) that the interpretation of the Clean
EPA to set the same limits, subject to judicial review Air Act, 42 U.S.C. 7401 et seq., adopted by the major-
only to ensure against action "arbitrary, capricious, . . . or ity in Massachusetts v. EPA, 549 U.S. 497, 127 S. Ct.
otherwise not in accordance with law." 7607(d)(9). 1438, 167 L. Ed. 2d 248 (2007), is correct.
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EXHIBIT B
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11
12
13
TRANSCRIPT OF NONJURY TRIAL PROCEEDINGS
14 DECEMBER 22, 2009
BEFORE GREGORY K. FRIZZELL, U.S. DISTRICT JUDGE
15 VOLUME 80, A.M. SESSION
16
17 APPEARANCES:
18
23
24
25
9301
18
For Tyson Foods: MR. ROBERT W. GEORGE
19 Tyson Foods, Inc.
2210 West Oaklawn Drive
20 Springdale, AR 72701
25
9302
1 (APPEARANCES CONTINUED)
9303
1 INDEX
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
9304
1 PROCEEDINGS
9305
6 states.
14 activity.
21 source.
9306
9307
1 FWPCA.
9 "all-encompassing" program.
23 source of pollution.
9308
17 quality standards.
22 source pollution.
9309
9310
3 states."
9311
24 Eucha-Spavinaw case.
9312
7 plane out.
11 going to object.
16 Your Honor.
23 CONTINUED CROSS-EXAMINATION
24 BY MR. PAGE:
9313
4 A. Yes.
9 A. Yes.
13 A. No.
22 A. No.
9314
3 A. No.
9315
15 nuisance.
19 on those waters?
25 in these streams?