One question people might have right away about yesterday's dismissal of California's nuisance suit against the auto industry is this: Why the recent win in Vermont, but the loss in California?
The answer might well be rooted in the impact of Mass. v. EPA, which holds that EPA has authority to regulate greenhouse gases under the Clean Air Act. The Supreme Court's analysis in Mass. v. EPA provided immediate benefits to Vermont and its allies. In reading the Clean Air Act, the Supreme Court rejected arguments that the Act should be narrowly construed because a broader reading would create tension with the federal energy laws. Indeed, the Supreme Court went out of its way to stress that the Clean Air Act and the federal energy laws create overlapping but independent and fully consistent mandates, and that "there is no reason to think the two agencies [EPA and DOT] cannot both administer their obligations and yet avoid inconsistency."
The core issue in the Vermont case is whether federal energy laws preempt California's greenhouse gas standards. And so the Supreme Court's analysis proved to be extremely useful to Vermont and its allies in showing that the energy laws are not in tension with requirements under the Clean Air Act, including requirements imposed by California under the authority set forth in section 209.
In contrast, California's nuisance suit, and a similar suit brought by Connecticut and others against electric utilities now pending before a federal appeals court, do not involve preemption issues or the interplay of the federal energy laws and the Clean Air Act, at least not at this stage. They are suits under common law against industry to recover damages for the harm caused by global warming. The California district court dismissed the suit under the political question doctrine because, in its view, the issues are too delicate and complex to be addressed by the judiciary, but instead would be better addressed by the elected (political) branches of government. Indeed, industry reps argued that Mass. v. EPA actually helped its position in the nuisance suits by showing that the federal Executive Branch has statutory authority to address greenhouse pollution. While this argument might be dubious, it can't be denied that Mass. v. EPA directly helped Vermont in its suit but did not provide the same benefits to those litigating the nuisance suits.
California retains strong arguments on appeal in its nuisance suit, but these suits remain at the very cutting edge of the law. As noted by the California Deputy Attorney General yesterday, while his office is disappointed with the ruling, it recognizes that it is "difficult" for a federal district court to use nuisance law to address global warming. Connecticut's nuisance suit met a similar fate at the district court level. We wish both States good luck as they press ahead on appeal.
(Update -- I've tweaked some of the language in this post to make it more precise.)