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Samuel Alito on Energy & Oil
Supreme Court Justice (nominated by Pres. George W. Bush 2005)
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Clean Air Act should not include greenhouse gases
Although legal experts do not expect the justices to use the upcoming climate case to overturn Massachusetts v. EPA, Justice Samuel Alito is among the conservatives calling for the court to revisit that precedent. The justice, who dissented in the
2007 case, expressed that view in his minority opinion in the 2014 case Utility Air Regulatory Group v. EPA , which said that while the Clean Air Act definition of "air pollutant" includes greenhouse gas emissions,
EPA is not required to include them every time the statute mentions air pollutants.Justice Thomas voted with the dissent in Massachusetts v.
EPA and has joined his conservative colleagues in calling for invoking the nondelegation doctrine and limiting Chevron deference to curb federal agencies' powers.
Source: GreenWire E&E News on 2021 EPA & climate SCOTUS cases
, Nov 3, 2021
Federal statutes displace federal common law on CO2.
Justice Alito wrote the concurrence on AMERICAN ELECTRIC v. CONNECTICUT on Jun 20, 2011:
Joined by the courts into one suit, eight states, New York City, and three nonprofit land trusts filed actions against five major electric power companies claiming their carbon dioxide discharges, by contributing to global warming, have interfered with public rights in violation of federal common law, or of state tort law.
HELD: Delivered by GINSBURG, joined by ROBERTS, SCALIA, KENNEDY, BREYER & KAGAN
Since four members of the Court hold that at least some of the plaintiffs have standing, though four others would find there is not standing, the Court will address the merits. Though a federal common law regarding air pollution has developed where once there was none, the passage by Congress of the Clean Air Act and the agreement of the EPA to regulate carbon dioxide emissions have occupied this field of law and have displaced the federal common law. The fact that the EPA has not yet issued rules does not allow the Court to issue decisions under the
federal common law that are binding until the EPA does act, since Congress has shown its intent to have the EPA make these decisions. The process the Clean Air Act sets out is that the EPA, using its expertise, shall issue in the first instance regulations. Parties dissatisfied with those regulations may seek review of the EPA's actions in the US Court of Appeals. The possibility of state law claims for pollution will depend upon the preemptive effect of the Clean Air Act. As the preemption issue was not briefed for this Court, the state law claims are remanded for further consideration by the lower courts. CONCURRED: ALITO concurs; joined by THOMAS
Assuming for the purpose of this decision that this Court in Massachusetts v. EPA interpreted the Clean Air Act correctly, this Court's analysis of the displacement of federal common law by Congressional enactment is also correct.Sotomayor recused herself.
Source: Supreme Court case 11-AE-CT argued on Apr 19, 2011
Page last updated: Mar 21, 2022