As my colleague Meghan Greenfield discussed yesterday, on February 12 the Environmental Protection Agency (EPA) rescinded its 2009 finding that greenhouse gas emissions endanger public health and welfare, unwinding what it described as the legal foundation for nearly every federal climate regulation of the past fifteen years. The immediate regulatory consequences are significant and well-chronicled: vehicle standards repealed, power plant rules imperiled, and the Clean Air Act’s role in climate policy called into question.[1]
But the rescission may produce a consequence its authors did not intend. In American Electric Power Co. v. Connecticut, the Supreme Court unanimously held that the Clean Air Act displaces federal common law nuisance claims against greenhouse gas emitters.[2] The Court’s reasoning was straightforward: because Congress had delegated authority to EPA to regulate greenhouse gases (confirmed in Massachusetts v. EPA and exercised through the 2009 endangerment finding) there was no room for federal judges to fashion a parallel regime of common law remedies.[3] Now EPA says it never had that authority at all. The displacement doctrine rests on a predicate the agency has now disavowed.
This creates a puzzle the rescission’s authors may not have intended to raise. If federal regulation no longer occupies the field, who fills the void? The answer may be state attorneys general, municipalities, and private plaintiffs wielding state common law nuisance and tort theories – and their targets may extend well beyond the fossil fuel companies that have dominated climate litigation to date.
The displacement doctrine is not self-executing. It depends on the existence of a federal statutory scheme that “speak[s] directly” to the question at issue.[4] For more than a decade, the Clean Air Act’s coverage of greenhouse gases supplied that predicate. Plaintiffs will argue that EPA’s disavowal of regulatory authority unsettles the foundation. If the Clean Air Act does not speak directly to greenhouse gases after all, the argument goes, federal common law claims that were displaced in 2011 may no longer be. The final rule anticipates this problem and asserts that the Clean Air Act continues to preempt state common law claims even without the endangerment finding, but that position will be contested.
State tort theories present a separate and more immediate concern. Dozens of state and municipal plaintiffs already have climate nuisance, trespass, consumer protection, and unjust enrichment suits pending against major emitters.[5] The Supreme Court recently granted certiorari in one such case, a suit by Boulder County, Colorado against two fossil fuel companies, to decide whether federal law precludes state-law climate claims.[6] A ruling for the plaintiffs, paired with the rescission’s weakening of the federal regulatory floor, would leave defendants with a narrower preemption defense than they enjoy today. A ruling for the defendants might resolve the question for fossil fuel producers but would not necessarily settle how state tort law applies to industrial emitters whose relationship to climate harm is different in character; chemical manufacturers, cement producers, and other sources of potent greenhouse gases.
That expansion of potential targets is worth dwelling on. Climate nuisance litigation to date has been concentrated on fossil fuel producers, and the theories have leaned heavily on allegations of long-running disinformation about climate science. Those theories do not obviously transfer to every industrial greenhouse gas emitter. But they are not the only theories on offer. Proportional-contribution theories, which seek damages in proportion to a defendant’s share of cumulative global emissions, are agnostic as to sector. A cement manufacturer, a chemical producer, or a heavy-industrial facility with a multi-decade emission history can be pleaded under the same basic framework as an oil and gas major. Recent international litigation reflects this trajectory: cement companies have been named as defendants in climate damages suits in Switzerland and Germany, and plaintiffs have argued proportional contribution based on Carbon Majors-style attribution data.[7]
Two developments make the expansion more plausible than it would have been even a few years ago. First, attribution science has matured to the point where peer-reviewed research has proposed frameworks for linking individual companies’ historical emissions to quantifiable damages from specific climate events.[8] Second, several states have enacted or proposed “climate superfund” statutes that would impose cost-recovery obligations on large historical emitters.[9] Those statutes are currently limited to fossil fuel extractors and refiners, but the legislative template is portable, and the underlying rationale, that past emitters should contribute to the costs of present and future climate adaptation, applies with equal logical force to any major historical source.
For regulated industry, the paradox is sharp. A company that has long relied on federal preemption as a shield against climate tort liability may find that shield weakened by the same deregulatory action that relieves it of near-term federal compliance obligations. The compliance burden and the litigation exposure do not move in the same direction. Historical emissions, carefully inventoried over decades in many cases to satisfy federal reporting requirements, become a factual record that is permanent, discoverable, and potentially directly relevant to proportional-contribution damages theories.
It is too early to say whether any of this will come to pass. Much depends on how courts resolve displacement and preemption questions over the next two years, on the outcome of the pending Supreme Court case, and on whether state legislatures broaden the scope of their climate liability statutes. What can be said with confidence is that the rescission has reopened questions that the displacement doctrine had largely closed, that the set of potential defendants in climate litigation is broader in 2026 than it was in 2011, and that the plaintiffs’ bar is paying close attention. Companies with significant historical greenhouse gas emissions, including those that have never been targets of climate litigation, would be prudent to treat the common law landscape as a present risk to be monitored and managed, not a distant hypothetical.
[1]Rescission of the Greenhouse Gas Endangerment Finding and Motor Vehicle Greenhouse Gas Emission Standards Under the Clean Air Act, 91 Fed. Reg. 7686 (Feb. 18, 2026).
[2]Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 424 (2011) (holding that the Clean Air Act and EPA actions it authorizes “displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants”).
[3]See Massachusetts v. EPA, 549 U.S. 497 (2007); Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 66496 (Dec. 15, 2009).
[4]Am. Elec. Power, 564 U.S. at 424 (“[T]he 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.”) (quoting Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625 (1978)).
[5] See Sabin Center for Climate Change Law, U.S. Climate Change Litigation Database, Columbia Law School, http://climatecasechart.com/us-climate-change-litigation/ (cataloging pending state and municipal climate claims).
[6]See, e.g., City & Cnty. of Honolulu v. Sunoco LP, 537 P.3d 1173 (Haw. 2023), cert. denied, 145 S. Ct. 750 (2025); Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc., 569 P.3d 66 (Colo. 2025), cert. granted, No. 25-170 (U.S. Feb. 23, 2026).
[7] See, e.g., Asmania v. Holcim Ltd., Cantonal Court of Zug (Switz.) (pending suit by Indonesian islanders against world’s largest cement producer based on proportional share of historical emissions); see also Richard Heede, Tracing Anthropogenic Carbon Dioxide and Methane Emissions to Fossil Fuel and Cement Producers, 1854–2010, 122 Climatic Change 229 (2014) (original “carbon majors” analysis identifying cement producers among historical industrial emitters).
[8]Christopher W. Callahan & Justin S. Mankin, Carbon Majors and the Scientific Case for Climate Liability, 640 Nature 893 (2025).
[9]Vt. Act No. 122 (2024) (codified at 10 V.S.A. §§ 598–598e); N.Y. Env’t Conserv. Law §§ 75-0101 et seq. (McKinney 2024).