Lobbying Group Picks up Costs of Florida’s Health-Care Legal Challenge
By Charles Elmore
Florida has paid less than $6,000 for its landmark challenge to President Obama’s health care law largely because a business lobbying group is picking up an undisclosed share of the remaining legal costs.
While Florida, joined by 25 other states, won a favorable ruling last month from a federal district judge, the cost the states have split so far amounts to $46,000.
Florida Attorney General Pam Bondi told a state House committee this month that most of the rest is being covered by the National Federation of Independent Business, a group that opposes the law because of what it considers unconstitutional costs and regulations on firms and people.
“They have dedicated a tremendous amount of resources to the lawsuit,” Bondi said Feb. 10. “We’re thrilled, because that’s saving our state money. That’s saving the 25 other states money as well.”
Not so thrilled: Advocacy groups supporting the health care law that aims to cover more than 30 million uninsured.
“I’m not sure most voters understand that a lawsuit by their states is being funded by an ideological organization with an issue ax to grind,” said Ethan Rome, executive director of Health Care for America Now, a Washington-based group whose contributors include unions and others who support the act. “In this case there appears to a serious perversion of the process.”
Role raises red flags
U.S. District Court Judge Roger Vinson in Pensacola ruled in favor of the states in January in a case that eventually could wind up before the U.S. Supreme Court. Florida officials declined to disclose how much NFIB is spending.
“I would think the answer would be millions of dollars that would be spent by the complainants in this case,” said Joseph W. Little, law professor emeritus at the University of Florida. “Millions of dollars and probably tens of millions of dollars.”
Some legislators said they were troubled that a business group with its own agenda is playing such a prominent financial role.
“My concern is if it’s a lawsuit on behalf of the people of Florida, then I would believe it should be the people of Florida footing the bill,” said state Rep. Mark Pafford, D-West Palm Beach, a member of the House Health and Human Services Committee. “When you have an outside party paying, then every aspect of the AG’s office might be up for sale. This type of thing raises all kind of red flags.”
NFIB officials declined to say how much the group is spending.
“Not gonna, no,” said Bill Herrle, NFIB’s Florida executive director. “Good luck.”
NFIB is a plaintiff in the case and is using both in-house lawyers and outside counsel, and certainly it would be fair to say the group is paying its own way, Herrle said. “I think it would be incorrect to say NFIB is paying for all the costs of this,” Herrle said.
The Nashville-based organization says it represents 350,000 small businesses, 10,000 of them in Florida, and IRS records show it has an annual budget of more than $80 million. Its affiliated NFIB Small Business Legal Center participates in the lawsuit on behalf of the parent organization. On its own, the legal center reported a budget of about $1 million in 2009.
The legal center gets money from donations and also has gotten pro bono legal support, said Executive Director Karen Hamed, in an e-mail. “I can’t speculate on what the costs of prosecuting this case will be, but NFIB is prepared to follow this case through to the Supreme Court.”
Vinson ruled that Congress overstepped its powers by passing a health-care law with an “individual mandate” requiring people to buy health insurance or pay a penalty. The federal government, which won other lower court decisions but lost early rounds in Florida and Virginia, has indicated it will appeal.
The lead outside counsel for the states, David Rivkin, has called the law “in its design, the most profoundly unconstitutional statute in American history; in its execution, one of the most incompetent ones.”
Rivkin is a partner in the Washington law office of Baker & Hostetler, which also represents NFIB in the case. The same firm formerly employed Bill McCollum, Bondi’s predecessor as attorney general and the man who led the multi-state legal challenge last spring. McCollum lost a GOP primary bid for governor to Rick Scott.
In a telephone interview, McCollum said NFIB has a separate relationship and fee arrangement with outside counsel, though it happens to be the same law firm. The states remain in charge of the case, he said.
“I’m not trying to dispute for a minute NFIB is paying for the bulk of the outside counsel,” McCollum said, adding he does not know an amount. “It’s great to have NFIB there in my opinion.”
Having NFIB as well as individual plaintiffs in the lawsuit provides a broader range of parties affected by the law, strengthening the case, McCollum said.
‘Taxpayers can be proud’
Dexter Lehtinen, the former U.S. attorney for South Florida who served during GOP administrations, said he can understand why state legislators and others might raise questions about NFIB’s role. That does not mean anything wrong is happening, he said.
“The question is appropriate but the answer can be appropriate,” said Lehtinen, an adjunct professor of law at the University of Miami.
As long as the NFIB is not paying for the state’s portion of the case, and the state remains in charge, “that’s something taxpayers can be proud of,” Lehtinen said.
As for costs, he estimates private counsel would likely cost “at least $250,000” in a case like this.
The states agreed in a contract signed in March to pay attorneys Rivkin and Lee Casey $250 an hour up to a maximum of $50,000. A new contract signed Jan. 4 commits to spending an additional $50,000.
Florida and the other states have been sent invoices for $46,242.38 by lawyers serving as outside counsel, Kimberly Case, Bondi’s legislative affairs director, wrote in response to an inquiry from Pafford.
So far the state has spent $40,693 and been reimbursed by participating states for $33,529, with $7,164 pending.
That leaves Florida’s portion at $5,549. The figure does not include in-house lawyers already employed by the state.
As for NFIB’s share? “Questions related to NFIB’s expenditures for their legal challenge should be directed to NFIB,” Case wrote.
Last fall, NFIB backed Bondi in her race for attorney general, citing her commitment to continue the legal challenge.
NFIB, its affiliates and employees gave more than $2.3 million to candidates in state races and ballot initiatives around the nation between 2003 and 2010, including more than $65,000 in Florida, according to the National Institute on Money in State Politics.
More than 78 percent of the contributions went to GOP candidates.
State Rep. Elaine Schwartz, D-Hollywood, said she was curious after hearing Bondi bring up NFIB in a Feb. 10 hearing of the House Health and Human Services Committee. She asked who the group was. Then she asked if the group was “basically funding” the lawsuit by the states. Bondi answered yes.
Schwartz said later, “I’m thinking, ‘Can a group promoting profit-making interests decide to use the AG’s stationery and have the state be the instrument to carry out their wishes because they’re funding it?’ ”
In introductory remarks to the House committee, Bondi praised NFIB. “Bill Herrle and the national folks have been so actively involved in the lawsuit, which has been a great, great help to Florida and the other states,” Bondi said.
By Jan Biles
Kansas Attorney General Derek Schmidt said Friday the state’s top appellate lawyer and Wichita-based law firm Foulston Siefkin will round out the legal team defending the state against three federal lawsuits challenging new Kansas laws related to licensing abortion clinics and distributing health care funding.
The attorney general’s office will coordinate the overall defense through the deputy attorney general for civil litigation, he said.
Schmidt made the announcement after it was revealed he had hired Foulston Siefkin, a firm that also represents billionaire brothers David and Charles Koch, to represent the state in a lawsuit filed by Planned Parenthood. The Koch brothers have made significant donations to the Republican Party.
Schmidt issued a statement responding to recent criticism of the decision that said previous attorneys general hired outside lawyers to represent the state in lawsuits over school finance and water issues. Those topics, he said, were resource intensive and warranted outside assistance.
“The attorney general’s office has far broader responsibilities than abortion-related litigation,” said Schmidt, a Republican in his first term. “This is a situation where prudent case management requires the assistance of outside counsel to supplement the state’s resources.”
Schmidt said the state is facing three federal lawsuits brought by a dozen out-of-state lawyers and two Kansas law firms in the past three weeks.
“These plaintiffs have launched a massive legal assault on the authority of Kansas to set its own laws and priorities,” he said in a statement. “As is our duty, our office will provide for a zealous defense of the state’s duly enacted laws.”
Schmidt said the state’s legal defense against two federal lawsuits challenging the state’s new abortion clinic licensing law will be led by Kansas Solicitor General Steve McAllister, a former dean of The University of Kansas Law School and former U.S. Supreme Court clerk who has represented the state in federal litigation in the past.
Foulston Siefkin, the largest law firm in Kansas, has been retained to represent the state against the lawsuit filed in June by Planned Parenthood over a budget provision that blocks $334,000 from going to the health provider.
Schmidt said Foulston Siefkin has represented “thousands of diverse clients,” as well as the state under both Democrat and Republican attorneys general.
The state attorney general’s office said outside counsel has been retained in accordance with Kansas laws and will be paid through the Kansas Tort Claims Fund, which is administered by the attorney general.
Foulston-Siefkin’s rates for para-legal services are $115 per hour and rates for litigation partners range up to $300 hourly.
Democrats have said the hiring of private lawyers instead of using the state’s attorneys is a waste of tax dollars.
“At a time when the Brownback administration has enacted deep cuts in education, social services and other important areas of the budget, the attorney general should be using his existing staff to defend the state,” Senate Democratic leader Anthony Hensley, of Topeka, said in a news release Friday.
Hensley said he found it disturbing the attorney general was “awarding a state contract to political cronies on a no-bid basis.” He said Harvey Sorensen, a partner in Foulston Siefkin, was co-chair of Schmidt’s election campaign.Schmidt said the state attorney general’s office has 10 staff attorneys who defend the state and its officials against a wide range of civil lawsuits. Those attorneys currently are handling more than 600 case files.
He said it would be unwise to pull those in-house attorneys off other cases and redirect their efforts toward the three new lawsuits.
To date, Schmidt said, at least 16 lawyers from nine different legal organizations have entered appearances in Kansas in support of the plaintiffs suing Kansas.
He also said outside counsel has been used in the past by Democrat and Republican attorneys general to assist when additional resources or expertise is needed. He pointed to ongoing school finance litigation and interstate water litigation as other current examples of major cases where the state is using outside counsel.
But Hensley took exception to the attorney general’s statement.
“I have no idea why Attorney General Derek Schmidt is comparing his hiring of the law firm Foulston Siefkin to the process used by the previous attorney general to hire outside counsel in other litigation,” he said. “The law firm hired to defend the state in the school finance lawsuit went through an extensive competitive bid process designed to guarantee that Kansas taxpayers’ money was used appropriately.”
The Associated Press contributed to this report.
SUPREME COURT OF THE UNITED STATES
JUSTICE GINSBURG delivered the opinion of the Court.9
We address in this opinion the question whether the plaintiffs (several States, the city of New York, and three private land trusts) can maintain federal common law public nuisance claims against carbon-dioxide emitters (four private power companies and the federal Tennessee Valley Authority). As relief, the plaintiffs ask for a decree setting carbon-dioxide emissions for each defendant at an initial cap, to be further reduced annually. The Clean Air Act and the Environmental Protection Agency action the Act authorizes, we hold, displace the claims the plaintiffs seek to pursue.11
In Massachusetts v. EPA, 549 U. S. 497 (2007), this Court held that the Clean Air Act, 42 U. S. C. §7401 et seq., authorizes federal regulation of emissions of carbon dioxide and other greenhouse gases. “[N]aturally presentin the atmosphere and . . . also emitted by human activities,”greenhouse gases are so named because they “trap . . . heat that would otherwise escape from the [Earth’s] atmosphere, and thus form the greenhouse effect that helps keep the Earth warm enough for life.” 74 Fed. Reg. 66499 (2009).1 Massachusetts held that the Environmental Protection Agency (EPA) had misread the Clean Air Act when it denied a rulemaking petition seeking controls on greenhouse gas emissions from new motor vehicles. 549 U. S., at 510–511. Greenhouse gases, we determined, qualify as “air pollutant[s]” within the meaning of the governing Clean Air Act provision, id., at 528– 529 (quoting §7602(g)); they are therefore within EPA’s regulatory ken. Because EPA had authority to set greenhouse gas emission standards and had offered no “reasoned explanation” for failing to do so, we concluded that the agency had not acted “in accordance with law” when it denied the requested rulemaking. Id., at 534–535 (quoting §7607(d)(9)(A)).
Responding to our decision in Massachusetts, EPA undertook greenhouse gas regulation. In December 2009, the agency concluded that greenhouse gas emissions from motor vehicles “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare,” the Act’s regulatory trigger. §7521(a)(1); 74 Fed. Reg. 66496. The agency observed that “atmospheric greenhouse gas concentrations are now at elevated and essentially unprecedented levels,” almost entirely “due to anthropogenic emissions,” id., at 66517; mean global temperatures, the agency continued, demonstrate an“unambiguous warming trend over the last 100 years,”and particularly “over the past 30 years,” ibid. Acknowledging that not all scientists agreed on the causes and consequences of the rise in global temperatures, id., at 66506, 66518, 66523–66524, EPA concluded that “compelling” evidence supported the “attribution of observed climate change to anthropogenic” emissions of greenhouse gases, id., at 66518. Consequent dangers of greenhouse gas emissions, EPA determined, included increases in heat-related deaths; coastal inundation and erosion caused by melting icecaps and rising sea levels; more frequent and intense hurricanes, floods, and other “extreme weather events” that cause death and destroy infrastructure; drought due to reductions in mountain snowpack and shifting precipitation patterns; destruction of ecosystems supporting animals and plants; and potentially “significant disruptions” of food production. Id., at 66524– 66535.215
EPA and the Department of Transportation subsequently issued a joint final rule regulating emissions from light-duty vehicles, see 75 Fed. Reg. 25324 (2010), and initiated a joint rulemaking covering medium- and heavy duty vehicles, see id., at 74152. EPA also began phasing in requirements that new or modified “[m]ajor [greenhouse gas] emitting facilities” use the “best available control technology.” §7475(a)(4); 75 Fed. Reg. 31520–31521. Finally, EPA commenced a rulemaking under §111 of the Act, 42 U. S. C. §7411, to set limits on greenhouse gas emissions from new, modified, and existing fossil-fuel fired power plants. Pursuant to a settlement finalized in March 2011, EPA has committed to issuing a proposed rule by July 2011, and a final rule by May 2012. See 75 Fed. Reg. 82392; Reply Brief for Tennessee Valley Authority 18.17
The lawsuits we consider here began well before EPA initiated the efforts to regulate greenhouse gases just described. In July 2004, two groups of plaintiffs filed separate complaints in the Southern District of New York against the same five major electric power companies. The first group of plaintiffs included eight States3 and New York City, the second joined three nonprofit land trusts4; both groups are respondents here. The defendants, now petitioners, are four private companies5 and the Tennessee Valley Authority, a federally owned corporation that operates fossil-fuel fired power plants in several States. According to the complaints, the defendants “are the five largest emitters of carbon dioxide in the United States.” App. 57, 118. Their collective annual emissions of 650 million tons constitute 25 percent of emissions from the domestic electric power sector, 10 percent of emissions from all domestic human activities, ibid., and 2.5 percent of all anthropogenic emissions worldwide, App. to Pet. for Cert. 72a.
By contributing to global warming, the plaintiffs asserted, the defendants’ carbon-dioxide emissions created a “substantial and unreasonable interference with public rights,” in violation of the federal common law of interstate nuisance, or, in the alternative, of state tort law. App. 103–105, 145–147. The States and New York City alleged that public lands, infrastructure, and health were at risk from climate change. App. 88–93. The trusts urged that climate change would destroy habitats for animals and rare species of trees and plants on land the trusts owned and conserved. App. 139–145. All plaintiffs sought injunctive relief requiring each defendant “to cap its carbon dioxide emissions and then reduce them by a specified percentage each year for at least a decade.” App. 110, 153.21
The District Court dismissed both suits as presenting non-justiciable political questions, citing Baker v. Carr, 369 U. S. 186 (1962), but the Second Circuit reversed, 582 F. 3d 309 (2009). On the threshold questions, the Court of Appeals held that the suits were not barred by the political question doctrine, id., at 332, and that the plaintiffs had adequately alleged Article III standing, id., at 349.23
Turning to the merits, the Second Circuit held that all plaintiffs had stated a claim under the “federal common law of nuisance.” Id., at 358, 371. For this determination, the court relied dominantly on a series of this Court’s decisions holding that States may maintain suits to abate air and water pollution produced by other States or by out-of-state industry. Id., at 350–351; see, e.g., Illinois v. Milwaukee, 406 U. S. 91, 93, (1972) (Milwaukee I) (recognizing right of Illinois to sue in federal district court to abate discharge of sewage into Lake Michigan).25
The Court of Appeals further determined that the Clean Air Act did not “displace” federal common law. In Milwaukee v. Illinois, 451 U. S. 304, 316–319 (1981) (Milwaukee II), this Court held that Congress had displaced the federal common law right of action recognized in Milwaukee I by adopting amendments to the Clean Water Act, 33 U. S. C. §1251 et seq. That legislation installed an all encompassing regulatory program, supervised by an expert administrative agency, to deal comprehensively with interstate water pollution. The legislation itself prohibited the discharge of pollutants into the waters of the United States without a permit from a proper permitting authority. Milwaukee II, 451 U. S., at 310–311 (citing §1311). At the time of the Second Circuit’s decision, by contrast, EPA had not yet promulgated any rule regulating greenhouse gases, a fact the court thought dispositive. 582 F. 3d, at 379–381. “Until EPA completes the rulemaking process,” the court reasoned, “we cannot speculate as to whether the hypothetical regulation of greenhouse gases under the Clean Air Act would in fact ‘spea[k] directly’ to the ‘particular issue’ raised here by Plaintiffs.” Id., at 380.27
We granted certiorari. 562 U. S. ___ (2010).29
The petitioners contend that the federal courts lack authority to adjudicate this case. Four members of the Court would hold that at least some plaintiffs have Article III standing under Massachusetts, which permitted a State to challenge EPA’s refusal to regulate greenhouse gas emissions, 549 U. S., at 520–526; and, further, that no other threshold obstacle bars review. Four members of the Court, adhering to a dissenting opinion in Massachusetts, 549 U. S., at 535, or regarding that decision as distinguishable, would hold that none of the plaintiffs have Article III standing. We therefore affirm, by an equally divided Court, the Second Circuit’s exercise of jurisdiction and proceed to the merits. See Nye v. United States, 313 U. S. 33, 44 (1941).
“There is no federal general common law,” Erie R. Co. v. Tompkins, 304 U. S. 64, 78 (1938), famously recognized. In the wake of Erie, however, a keener understanding developed. See generally Friendly, In Praise of Erie—And of the New Federal Common Law, 39 N. Y. U. L. Rev. 383 (1964). Erie “le[ft] to the states what ought be left to them,” id., at 405, and thus required “federal courts [to] follow state decisions on matters of substantive law appropriately cognizable by the states,” id., at 422. Erie also sparked “the emergence of a federal decisional law in areas of national concern.” Id., at 405. The “new” federal common law addresses “subjects within national legislative power where Congress has so directed” or where the basic scheme of the Constitution so demands. Id., at 408, n. 119, 421–422. Environmental protection is undoubtedly an area “within national legislative power,” one in which federal courts may fill in “statutory interstices,” and, if necessary, even “fashion federal law.” Id., at 421–422. As the Court stated in Milwaukee I: “When we deal with air and water in their ambient or interstate aspects, there is a federal common law.” 406 U. S., at 103.
Decisions of this Court predating Erie, but compatible with the distinction emerging from that decision between “general common law” and “specialized federal common law,” Friendly, supra, at 405, have approved federal common law suits brought by one State to abate pollution emanating from another State. See, e.g., Missouri v. Illinois, 180 U. S. 208, 241–243 (1901) (permitting suit by Missouri to enjoin Chicago from discharging untreated sewage into interstate waters); New Jersey v. City of New York, 283 U. S. 473, 477, 481–483 (1931) (ordering New York City to stop dumping garbage off New Jersey coast); Georgia v. Tennessee Copper Co., 240 U. S. 650 (1916) (ordering private copper companies to curtail sulfur dioxide discharges in Tennessee that caused harm in Georgia). See also Milwaukee I, 406 U. S., at 107 (postErie decision upholding suit by Illinois to abate sewage discharges into Lake Michigan). The plaintiffs contend that their right to maintain this suit follows inexorably from that line of decisions.37
Recognition that a subject is meet for federal law governance, however, does not necessarily mean that federal courts should create the controlling law. Absent a demonstrated need for a federal rule of decision, the Court has taken “the prudent course” of “adopt[ing] the readymade body of state law as the federal rule of decision until Congress strikes a different accommodation.” United States v. Kimbell Foods, Inc., 440 U. S. 715, 740 (1979); see Bank of America Nat. Trust & Sav. Assn. v. Parnell, 352 U. S. 29, 32–34 (1956). And where, as here, borrowing the law of a particular State would be inappropriate, the Court remains mindful that it does not have creative power akin to that vested in Congress. See Missouri v. Illinois, 200 U. S. 496, 519 (1906) (“fact that this court must decide does not mean, of course, that it takes the place of a legislature”); cf. United States v. Standard Oil Co. of Cal., 332 U. S. 301, 308, 314 (1947) (holding that federal law determines whether Government could secure indemnity from a company whose truck injured a United States soldier, but declining to impose such an indemnity absent action by Congress, “the primary and most often the exclusive arbiter of federal fiscal affairs”).39
In the cases on which the plaintiffs heavily rely, States were permitted to sue to challenge activity harmful to their citizens’ health and welfare. We have not yet decided whether private citizens (here, the land trusts) or political subdivisions (New York City) of a State may invoke the federal common law of nuisance to abate out-of-state pollution. Nor have we ever held that a State may sue to abate any and all manner of pollution originating outside its borders.41
The defendants argue that considerations of scale and complexity distinguish global warming from the more bounded pollution giving rise to past federal nuisance suits. Greenhouse gases once emitted “become well mixed in the atmosphere,” 74 Fed. Reg. 66514; emissions in New Jersey may contribute no more to flooding in New York Cite as: 564 U. S. __ (2011) 9 Opinion of the Court than emissions in China. Cf. Brief for Petitioners 18–19. The plaintiffs, on the other hand, contend that an equitable remedy against the largest emitters of carbon dioxide in the United States is in order and not beyond judicial competence. See Brief for Respondents Open Space Institute et al. 32–35. And we have recognized that public nuisance law, like common law generally, adapts to changing scientific and factual circumstances. Missouri, 200 U. S., at 522 (adjudicating claim though it did not concern “nuisance of the simple kind that was known to the older common law”); see also D’Oench, Duhme & Co. v. FDIC, 315 U. S. 447, 472 (1942) (Jackson, J., concurring) (“federal courts are free to apply the traditional common-law technique of decision” when fashioning federal common law).43
We need not address the parties’ dispute in this regard. For it is an academic question whether, in the absence of the Clean Air Act and the EPA actions the Act authorizes, the plaintiffs could state a federal common law claim for curtailment of greenhouse gas emissions because of their contribution to global warming. Any such claim would be displaced by the federal legislation authorizing EPA to regulate carbon-dioxide emissions.45
“[W]hen Congress addresses a question previously governed by a decision rested on federal common law,” the Court has explained, “the need for such an unusual exercise of law-making by federal courts disappears.” Milwaukee II, 451 U. S., at 314 (holding that amendments to the Clean Water Act displaced the nuisance claim recognized in Milwaukee I). Legislative displacement of federal common law does not require the “same sort of evidence of a clear and manifest [congressional] purpose” demanded for preemption of state law. Id., at 317. “ ‘[D]ue regard for the presuppositions of our embracing federal system . . . as a promoter of democracy,’ ” id., at 316 (quoting San Diego Building Trades Council v. Garmon, 359 U. S. 236, 243 (1959)), does not enter the calculus, for it is primarily the office of Congress, not the federal courts, to prescribe national policy in areas of special federal interest. TVA v. Hill, 437 U. S. 153, 194 (1978). The test for whether congressional legislation excludes the declaration of federal common law is simply whether the statute “speak[s] directly to [the] question” at issue. Mobil Oil Corp. v. Higginbotham, 436 U. S. 618, 625 (1978); see Milwaukee II, 451 U. S., at 315; County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226, 236–237 (1985).
We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants. Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act. 549 U. S., at 528–529. And we think it equally plain that the Act “speaks directly” to emissions of carbon dioxide from the defendants’ plants.49
Section 111 of the Act directs the EPA Administrator to list “categories of stationary sources” that “in [her] judgment . . . caus[e], or contribut[e] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” §7411(b)(1)(A). Once EPA lists a category, the agency must establish standards of performance for emission of pollutants from new or modified sources within that category. §7411(b)(1)(B); see also §7411(a)(2). And, most relevant here, §7411(d) then requires regulation of existing sources within the same category. For existing sources, EPA issues emissions guidelines, see 40 C. F. R. §60.22, .23 (2009); in compliance with those guidelines and subject to federal oversight, the States then issue performance standards for stationary sources within their jurisdiction, §7411(d)(1).51
The Act provides multiple avenues for enforcement. See County of Oneida, 470 U. S., at 237–239 (reach of remedial provisions is important to determination whether statute displaces federal common law). EPA may delegate implementation and enforcement authority to the States, §7411©(1), (d)(1), but the agency retains the power to inspect and monitor regulated sources, to impose administrative penalties for noncompliance, and to commence civil actions against polluters in federal court. §§7411©(2), (d)(2), 7413, 7414. In specified circumstances, the Act imposes criminal penalties on any person who knowingly violates emissions standards issued under §7411. See §7413©. And the Act provides for private enforcement. If States (or EPA) fail to enforce emissions limits against regulated sources, the Act permits “any person” to bring a civil enforcement action in federal court. §7604(a).53
If EPA does not set emissions limits for a particular pollutant or source of pollution, States and private parties may petition for a rulemaking on the matter, and EPA’s response will be reviewable in federal court. See §7607(b)(1); Massachusetts, 549 U. S., at 516–517, 529. As earlier noted, see supra, at 3, EPA is currently engaged in a §7411 rulemaking to set standards for greenhouse gas emissions from fossil-fuel fired power plants. To settle litigation brought under §7607(b) by a group that included the majority of the plaintiffs in this very case, the agency agreed to complete that rulemaking by May 2012. 75 Fed. Reg. 82392. The Act itself thus provides a means to seek limits on emissions of carbon dioxide from domestic power plants—the same relief the plaintiffs seek by invoking federal common law. We see no room for a parallel track.55
The plaintiffs argue, as the Second Circuit held, that federal common law is not displaced until EPA actually exercises its regulatory authority, i.e., until it sets standards governing emissions from the defendants’ plants. We disagree.
The sewage discharges at issue in Milwaukee II, we do not overlook, were subject to effluent limits set by EPA; under the displacing statute, “[e]very point source discharge” of water pollution was “prohibited unless covered by a permit.” 451 U. S., at 318–320 (emphasis deleted). As Milwaukee II made clear, however, the relevant question for purposes of displacement is “whether the field has been occupied, not whether it has been occupied in a particular manner.” Id., at 324. Of necessity, Congress selects different regulatory regimes to address different problems. Congress could hardly preemptively prohibit every discharge of carbon dioxide unless covered by a permit. After all, we each emit carbon dioxide merely by breathing.59
The Clean Air Act is no less an exercise of the legislature’s “considered judgment” concerning the regulation of air pollution because it permits emissions until EPA acts. See Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1, 22, n. 32 (1981) (finding displacement although Congress “allowed some continued dumping of sludge” prior to a certain date). The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law. Indeed, were EPA to decline to regulate carbon-dioxide emissions altogether at the conclusion of its ongoing §7411 rulemaking, the federal courts would have no warrant to employ the federal common law of nuisance to upset the agency’s expert determination.61
EPA’s judgment, we hasten to add, would not escape judicial review. Federal courts, we earlier observed, see supra, at 11, can review agency action (or a final rule declining to take action) to ensure compliance with the62
Indeed, this prescribed order of decisionmaking—the first decider under the Act is the expert administrative agency, the second, federal judges—is yet another reason to resist setting emissions standards by judicial decree under federal tort law. The appropriate amount of regulation in any particular greenhouse gas-producing sector cannot be prescribed in a vacuum: as with other questions of national or international policy, informed assessment of competing interests is required. Along with the environmental benefit potentially achievable, our Nation’s energy needs and the possibility of economic disruption must weigh in the balance.64
The Clean Air Act entrusts such complex balancing to EPA in the first instance, in combination with state regulators. Each “standard of performance” EPA sets must “tak[e] into account the cost of achieving [emissions] reduction and any non-air quality health and environmental impact and energy requirements.” §7411(a)(1), (b)(1)(B), (d)(1); see also 40 C. F. R. §60.24(f) (EPA may permit state plans to deviate from generally applicable emissionsstandards upon demonstration that costs are “[u]nreasonable”). EPA may “distinguish among classes, types, and sizes” of stationary sources in apportioning responsibility for emissions reductions. §7411(b)(2), (d); see also 40 C. F. R. §60.22(b)(5). And the agency may waive compliance with emission limits to permit a facility to test drive an “innovative technological system” that has “not [yet] been adequately demonstrated.” §7411(j)(1)(A). The Act envisions extensive cooperation between federal and state authorities, see §7401(a), (b), generally permitting each State to take the first cut at determining how best to achieve EPA emissions standards within its domain, see §7411©(1), (d)(1)–(2).66
It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. See generally Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 865–866 (1984). Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present. Moreover, federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court.68
Notwithstanding these disabilities, the plaintiffs propose that individual federal judges determine, in the first instance, what amount of carbon-dioxide emissions is “unreasonable,” App. 103, 145, and then decide what level of reduction is “practical, feasible and economically viable,” App. 58, 119. These determinations would be made for the defendants named in the two lawsuits launched by the plaintiffs. Similar suits could be mounted, counsel for the States and New York City estimated, against “thousands or hundreds or tens” of other defendants fitting the description “large contributors” to carbon-dioxide emissions. Tr. of Oral Arg. 57.70
The judgments the plaintiffs would commit to federal judges, in suits that could be filed in any federal district, cannot be reconciled with the decisionmaking scheme Congress enacted. The Second Circuit erred, we hold, in ruling that federal judges may set limits on greenhouse gas emissions in face of a law empowering EPA to set the same limits, subject to judicial review only to ensure against action “arbitrary, capricious, . . . or otherwise not in accordance with law.” §7607(d)(9).72
The plaintiffs also sought relief under state law, in particular, the law of each State where the defendants operate power plants. See App. 105, 147. The Second Circuit did not reach the state law claims because it held that federal common law governed. 582 F. 3d, at 392; see International Paper Co. v. Ouellette, 479 U. S. 481, 488 (1987) (if a case “should be resolved by reference to federal common law[,] . . . state common law [is] preempted”). In light of our holding that the Clean Air Act displaces federal common law, the availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the federal Act. Id., at 489, 491, 497 (holding that the Clean Water Act does not preclude aggrieved individuals from bringing a “nuisance claim pursuant to the law of the source State”). None of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand.
* * *76
For the reasons stated, we reverse the judgment of the Second Circuit and remand the case for further proceedings consistent with this opinion.78
It is so ordered.80
JUSTICE SOTOMAYOR took no part in the consideration or decision of this case.82
JUSTICE ALITO, with whom JUSTICE THOMAS joins,concurring in part and concurring in the judgment.84
I concur in the judgment, and I agree with the Court’s displacement analysis on the assumption (which I make for the sake of argument because no party contends otherwise) that the interpretation of the Clean Air Act, 42 U. S. C. §7401 et seq., adopted by the majority in Massachusetts v. EPA, 549 U. S. 497 (2007), is correct.86
1 In addition to carbon dioxide, the primary greenhouse gases emitted by human activities include methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. 74 Fed. Reg. 66499.88
2 For views opposing EPA’s, see, e.g., Dawidoff, The Civil Heretic, N. Y. Times Magazine 32 (March 29, 2009). The Court, we caution, endorses no particular view of the complicated issues related to carbon dioxide emissions and climate change.90
3 California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin, although New Jersey and Wisconsin are no longer participating. Brief for Respondents Connecticut et al. 3, n. 1.92
4 Open Space Institute, Inc., Open Space Conservancy, Inc., and Audubon Society of New Hampshire.94
5 American Electric Power Company, Inc. (and a wholly owned subsidiary), Southern Company, Xcel Energy Inc., and Cinergy Corporation.96
6 In addition to renewing the political question argument made below, the petitioners now assert an additional threshold obstacle: They seek dismissal because of a “prudential” bar to the adjudication of generalized grievances, purportedly distinct from Article III’s bar. See Brief for Tennessee Valley Authority 14–24; Brief for Petitioners 30–31.98
7 There is an exception: EPA may not employ §7411(d) if existing stationary sources of the pollutant in question are regulated under the national ambient air quality standard program, §§7408–7410, or the “hazardous air pollutants” program, §7412. See §7411(d)(1).