Buffalo Environmental Law Journal

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Eleven plaintiffs brought a common law action, seeking injunctive relief against the six largest American producers of greenhouse gases. Because the EPA had not yet promulgated regulations governing the production of greenhouse gases, the Second Circuit Court of Appeals held that federal law had not displaced plaintiffs ' common law claim. The Supreme Court reversed, holding that even though regulations had not been promulgated, EPA occupied the field nevertheless. The decision marks an extension of the regulatory displacement of federal common law to regulations that are merely anticipated Such extension, or "anticipatory delegation, " represents an unacceptably large incursion into the scope of federal common law. Anticipatory delegation suffers from at least two problems. First, it leaves plaintiffs with cognizable claims the prospect of no redress. Second, the lack of practical redressability creates paradoxical problems related to standing.