Environmental Protection Agency (EPA) Administrator Lee Zeldin has maintained that repeal of the 2009 endangerment finding would create a clearer legal and regulatory landscape. Still, there is some concern in the business community that without the federal government taking the lead on climate action, it could be open season for states to file lawsuits against companies over greenhouse gas pollution.
Bracewell’s Brittany Pemberton told Inside Climate News that a 2011 Supreme Court ruling in a federal common law of interstate nuisance case that several states filed against a group of utility companies would be dubious today even if the EPA backs away from carbon dioxide emissions altogether.
But Pemberton said there are plenty of legal questions ahead. “The extent to which state law (common law made by courts or legislation) can be used to try to limit future emissions or obtain damages for past emissions is much less clear,” she said. “Multiple courts are wrestling with this right now and reaching different conclusions. Repealing the Endangerment Finding is likely to add another layer of complexity and confusion in that area.”
