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AEP's Tipping Point: Implied Preemption of Climate-Change Common Law Claims

Washington Legal Foundation Working Paper No. 179

32 Pages Posted: 15 Feb 2012 Last revised: 25 Apr 2012

Tristan L. Duncan

Shook Hardy & Bacon

Jonathan S. Massey

Massey & Gail LLP

Date Written: February 1, 2012


Constitutional Limits to Creative Common-Lawmaking.

This article challenges the thesis of Yale Law Professor Douglas Kysar and Benjamin Ewing in ‘Prods and Pleas’: Limited Government in An Era of Unlimited Harm, who urge courts to entertain climate change tort claims as a means to “prod and plea” Congress to enact comprehensive Greenhouse Gas emissions standards. In response to this attack on limited government, Ms. Duncan and Mr. Massey explore the constitutional constraints on the judicial role in the context of climate change, an inherently international and systemic issue, which entails cost-benefit and distributional decisions that only the political branches can make.

Functional Reasoning to Reject Climate-Change Common Law Claims.

A striking feature of the Supreme Court’s AEP decision is Justice Ginsburg’s functional reasoning regarding the limits on the judicial role. The opinion rejects “parallel tort tracks” and instead endorses judicial review of administrative rule-making petitions as the constitutionally more appropriate “prod and plea.”

Implied Preemption Presumption for Global Problems Like Climate-Change.

Although the Supreme Court ‘s AEP decision expressly reserved ruling on whether state common-law climate change claims are preempted by federal law, the opinion outlines the basis for a presumption in favor of preemption when an issue necessarily requires a uniform, national approach.

Judicial Activism vs Restraint in Climate-Change Policy-Making.

Ms. Duncan and Mr. Massey express concern that the “political theater” approach advocated by Kysar/Ewing would trigger charges of “judicial activism” and violate the limits of Article III. The Kysar/Ewing proposal is particularly alarming in light of proposals in state legislatures to circumscribe judicial independence. The proposal imperils the legitimacy of judicial decision-making and risks eroding popular support for the courts at a time when the Judiciary can ill afford such attacks.

Keywords: climate change, Supreme Court, judicial review, due process, preempt, judicial activism, judicial decision-making, greenhouse gas

Suggested Citation

Duncan, Tristan L. and Massey, Jonathan S., AEP's Tipping Point: Implied Preemption of Climate-Change Common Law Claims (February 1, 2012). Washington Legal Foundation Working Paper No. 179. Available at SSRN: or

Tristan L. Duncan (Contact Author)

Shook Hardy & Bacon ( email )

201 S Biscayne Blvd
Suite 3200
Miami, FL 33131
United States

Jonathan S. Massey

Massey & Gail LLP ( email )

1325 G Street NW suite 500
Washington, DC 20005
United States

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