I’m traveling but wanted to get in a few quick words about Judge Alsop’s decision today in the California climate change litigation. This is a really complex issue, and I wanted to try to unpack it a bit. In general, except where a federal statute or constitutional provision is the basis for an action, legal disputes are governed by state law, whether cases are filed in state court or federal court. There is an exception, however, for matters of special federal concerns. A line of cases going back about a century says that interstate pollution is one of those areas. In a number of cases, plaintiffs brought suits against emitters for remedies based on climate change, invoking this “federal common law nuisance” theory. The Supreme Court cut off those claims in the AEP, holding that the federal common law was displaced by the Clean Air Act’s regulation of greenhouse gases. But the Court left open the question whether similar claims could be brought…
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