Partner Bryan Killian spoke with Politico Pro about the potential impacts of a recent executive order calling on the Environmental Protection Agency (EPA) to report “on the legality and continuing applicability” of the agency’s 2009 endangerment finding that carbon dioxide and other greenhouse gases are driving climate change.
The article explored how an undoing of the endangerment finding could upend the US Supreme Court’s holding in AEP v. Connecticut, which found that the Clean Air Act displaced federal common law regarding greenhouse gas emissions. However, Bryan explained that rolling back the endangerment finding is unlikely to threaten the AEP holding.
“The reason federal common law ceases to exist is because the statute, the Clean Air Act, displaces the court’s common law-making authority. Whether and to what extent EPA chooses to regulate or not, is not the trigger for whether or not federal common law exists. It’s the statute itself,” Bryan said.
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