Earlier this month, the Department of Justice filed a brief in the Second Circuit arguing that New York City’s climate change case be dismissed.  In the case, the City of New York is one of a number of states and municipalities seeking massive damages on the grounds that large energy companies should be held liable for creating a public nuisance – the “national and international phenomenon of global warming.”  

DOJ’s brief focused on the preemption aspects of the case, rather than the merits.  The brief explained that New York City’s federal and state nuisance claims are preempted by the Clean Air Act, federal legislation which creates a comprehensive and all-encompassing program of air pollution regulation.  DOJ also explained that the City’s novel nuisance claims are also preempted by the foreign affairs power because the lawsuit “impermissibly intrude[s] into the field of foreign affairs.”  Finally, DOJ agreed with the district court that, if the City’s claims were construed to be federal ones, they too were preempted by the Clean Air Act and should be dismissed.