Can one state’s law regulate another state’s natural environment? It’s an issue in the headlines and in the Supreme Court this week, but it’s also a problem practically as old as the rivers. The court can draw on more than a century of the law governing interstate waters to answer some of the key questions.
The Supreme Court heard oral argument yesterday in one of the most important cases of the year, a case about whether two local governments in Colorado can ask a local state court to regulate global climate change through state law. The case before the Supreme Court was brought by the city of Boulder and the county around it, but there are many more similar suits pending against the oil and gas industry, in state courts from Honolulu to Providence. The plaintiffs in every one of those cases have insisted that they’re relying only on state law. The defendants respond that only federal law can govern an interstate (indeed, international) problem like carbon emissions.
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And in 2011, rejecting a climate case brought by Connecticut, the Supreme Court held that Congress adopted the Clean Air Act without giving any federal statutory right to bring suits like this — so federal judges can’t grant a federal “common law” right to sue, either.
So climate plaintiffs like Boulder have turned to state law in their hometown courts. If a federal statute pushes aside the ability to sue under federal common law, they say, there must now be room for state law. Boulder’s lawyer told the Supreme Court that “when Congress steps in and displaces” the federal common law in the Clean Air Act, “it displaces all of the policy decisions that were previously made by courts, including on the proper role of state law.”
Abracadabra: A right to sue.
That misses the point. The reason why federal law governs interstate air and water matters is that they are interstate, and in a federal republic of 50 states, no one state gets to have the final say.
Consider one of the oldest and least controversial examples in the law of federal courts. When a river crosses a state border, which state regulates how much water can be drawn from the river?
The answer is neither. The upstream state cannot simply give itself the rights to all the water before it crosses the border; the downstream state cannot just declare upstream water uses illegal. If the states cannot work it out themselves, through an interstate agreement approved by Congress, the Supreme Court will decide water-rights disputes under a body of federal law. “Neither the statutes nor the decisions of either State can be conclusive,” as the court said in a long-ago dispute involving a river shared by Colorado and New Mexico.
The water cases also show one of the state-law plaintiffs’ key mistakes. One reason federal law governs disputes like these is that they are inherently interstate. So when federal common law is replaced with a federal statute, there is still no room for state law to somehow slip into this exclusively federal area. Consider the so-called “water war” between Florida and Georgia over an interstate river system. The two states (and other interested parties) briefly reached an interim agreement, which Congress approved.
But that agreement expired without the states reaching a permanent deal. Did that wipe the slate clean and let the states apply their own law? Of course not: the states litigated for years under federal law, producing two Supreme Court decisions in which all nine Justices applied federal-law standards to the dispute.
SUPREME COURT MUST PREVENT UNCOMPENSATED THEFT OF WESTERN WATER
The same is true in the climate cases: The reason state law cannot apply is that greenhouse gases do not respect state boundaries. Congress is always free to pass a statute that, like the Clean Air Act, gives states some authority over emissions that occur within their own boundaries.
But just as downstream New Mexico could not protect its own water supply by banning irrigation in upstream Colorado, Boulder does not have the right to regulate carbon emissions worldwide. Our Constitution leaves some problems to the national government to solve. Cross-border water and air disputes are two of them.
William M. Jay is a partner at the law firm Paul, Weiss, Rifkind, Wharton & Garrison and chair of its Supreme Court and appellate practice. He has handled a number of water-related disputes in the Supreme Court and has filed briefs for the U.S. Chamber of Commerce in the Boulder litigation. This document was written in his personal capacity and not as a representative of any client.