source: Caselaw Access Project

author: Justice Kennedy Justice Thomas, Justice Scalia,

license: Public Domain

text:
    [564 U.S. 379]
    BOROUGH OF DURYEA, PENNSYLVANIA, et al., Petitioners v CHARLES J. GUARNIERI
    564 U.S. 379, 131 S. Ct. 2488,
    180 L. Ed. 2d 408,
    2011 U.S. LEXIS 4564
    [No. 09-1476]
    Argued March 22, 2011.
    Decided June 20, 2011.

      APPEARANCES OF COUNSEL ARGUING CASE
    Daniel R. Ortiz argued the cause for petitioners.
    Joseph R. Palmore argued the cause for the United States, as amicus curiae, by special leave of court.
    Eric Schnapper argued the cause for respondent.

      Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Alito, Soto-mayor, and Kagan, JJ., joined, Thomas, J., filed an opinion concurring in the judgment. Scalia, J., filed an opinion concurring in the judgment in part and dissenting in part,
   OPINION OF THE COURT

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Justice Kennedy

delivered the opinion of the court.

Among other rights essential to freedom, the First Amendment protects “the right of the people ... to petition the Government for a redress of grievances.” U. S. Const., Amdt. 1. This case concerns the extent of the protection, if any, that the Petition Clause grants public employees in routine disputes with government employers. Petitions are a form of expression, and employees who invoke the Petition Clause in most cases could invoke as well the Speech Clause of the First Amendment. To show that an employer interfered with rights under the Speech Clause, the employee, as a general rule, must show that his speech was on a matter

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of public concern, as that term is defined in the precedents of this and other courts. Here the issue is whether that test applies when the employee invokes the Petition Clause.

Alone among the Courts of Appeals to have addressed the issue, the Court of Appeals for the Third Circuit has held that the public concern test does not limit Petition Clause claims by public employees. For the reasons stated below, this conclusion is incorrect.

I

Charles Guarnieri filed a union grievance challenging his termination as chief of police for the borough of Duryea, a town of about 4,600 persons in northeastern Pennsylvania. His grievance proceeded to arbitration pursuant to the police union collective-bargaining agreement. The arbitrator found that the borough council, Duryea’s legislative body and the entity responsible for Guarnieri’s termination, committed procedural errors in connection with the termination; and the arbitrator also found that Guarnieri engaged in misconduct, including “attempting to intimidate Council members.” App. 37, 38. The arbitrator ordered Guarnieri reinstated after a disciplinary suspension. Id., at 38.

Upon Guarnieri’s return to the job, the council issued 11 directives instructing Guarnieri in the performance of his duties. The council’s attorney explained that the council “wanted to be sure that the chief understood what was going to be expected of him upon his return.” Tr. 19:12-14 (Apr. 16, 2008). One directive prohibited Guarnieri from working overtime without the council’s “express permission.” App. 59, ¶ 1. Another indicated that “ [t]he police car is to be used for official business only.” Id., at 60, ¶ 9. A third stated that the “Duryea municipal building is a smoke free building” and that the “police department is not exempt.” Id., at 61, ¶ 10. Guarnieri testified that, because of these and other directives, his “coming back wasn’t a warm welcoming feeling.” Tr. 65:7-8 (Apr. 15, 2008). Guarnieri filed a second union grievance challenging the directives. The arbitrator

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instructed the council to modify or withdraw some of the directives on the grounds that they were vague, interfered with the authority of the mayor, or were contrary to the collective-bargaining agreement.

Guarnieri filed this lawsuit against the borough, the borough council, and individual members of the council under Rev. Stat. § 1979, 42 U.S.C. § 1983. Guarnieri claimed that his first union grievance was a petition protected by the Petition Clause of the First Amendment, and he alleged that the directives issued upon his reinstatement were retaliation for that protected activity.

After this suit was filed, the council denied a request by Guarnieri for $338 in overtime. The United States Department of Labor investigated and concluded that Guarnieri was entitled to be paid. The council offered Guarnieri a check for the amount, but Guarnieri refused to accept it. Instead, Guarnieri amended his complaint to encompass the denial of overtime. Guarnieri alleged that his § 1983 lawsuit was a petition and that the denial of overtime constituted retaliation for his having filed the lawsuit.

Under the law of the Circuit, the defendants could not obtain judgment as a matter of law on the basis that the lawsuit and grievances were not on a matter of public concern. The case proceeded to a jury. Guarnieri’s attorney argued that the council was “sending a message to” Guarnieri through the directives and the denial of overtime: “You might have won your arbitration, but we control you.” Tr. 53:24-25 (Apr. 17, 2008). The District Court instructed the jury that the lawsuit and union grievances were “protected activity . . . under the constitution,” and that the jury could find defendants liable if it found an adequate connection between the protected activity and the alleged retaliation. Id., at 61:17-20; 62. The jury found in favor of Guarnieri. The jury awarded $45,000 in compensatory damages and $24,000 in punitive damages for the directives, as well as $358 in compensatory damages and $28,000 in punitive damages for

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the denial of overtime. The District Court awarded $45,000 in attorney’s fees and denied defendants’ renewed motion for judgment as a matter of law.

Defendants appealed on the ground that Guarnieri’s grievances and lawsuit did not address matters of public concern. Courts outside the Third Circuit have held that allegedly retaliatory actions by government employers against government employees may not give rise to liability under the Petition Clause unless the employee’s petition related to a matter of public concern. See, e.g., Kirby v. Elizabeth City, 388 F.3d 440, 448-449 (CA4 2004); Tang v. Rhode Island, Dept. of Elderly Affairs, 163 F.3d 7, 11-12 (CA1 1998); White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (CA2 1993). These courts rely on a substantial overlap between the rights of speech and petition to justify the application of Speech Clause precedents to Petition Clause claims. They reason that, whether the grievance is considered under the Speech Clause or the Petition Clause, the government employer is entitled to take adverse action against the employee unless the dispute involves a matter of public concern.

Rejecting that view, the Court of Appeals here affirmed the award of compensatory damages, although it found insufficient evidence to sustain the award of punitive damages. The Court of Appeals concluded that “ ‘a public employee who has petitioned the government through a formal mechanism such as the filing of a lawsuit or grievance is protected under the Petition Clause from retaliation for that activity, even if the petition concerns a matter of solely private concern.’ ” 364 Fed. Appx. 749, 753 (CA3 2010) (quoting Foraker v. Chaffinch, 501 F.3d 231, 236 (CA3 2007)). The decision of the Court of Appeals was consistent with the rule adopted and explained by that court in San Filippo v. Bongiovanni, 30 F.3d 424, 442 (1994). This Court granted certiorari to resolve the conflict in the Courts of Appeals. 562 U.S. 960, 131 S. Ct. 456, 178 L. Ed. 2d 285 (2010).

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II

When a public employee sues a government employer under the First Amendment’s Speech Clause, the employee must show that he or she spoke as a citizen on a matter of public concern. Connick v. Myers, 461 U.S. 138, 147, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983). If an employee does not speak as a citizen, or does not address a matter of public concern, “a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” Ibid. Even if an employee does speak as a citizen on a matter of public concern, the employee’s speech is not automatically privileged. Courts balance the First Amendment interest of the employee against “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968).

This framework “reconcile [s] the employee’s right to engage in speech and the government employer’s right to protect its own legitimate interests in performing its mission.” San Diego v. Roe, 543 U.S. 77, 82, 125 S. Ct. 521, 160 L. Ed. 2d 410 (2004) (per curiam). There are some rights and freedoms so fundamental to liberty that they cannot be bargained away in a contract for public employment. “Our responsibility is to ensure that citizens are not deprived of [these] fundamental rights by virtue of working for the government.” Connick, supra, at 147, 103 S. Ct. 1684, 75 L. Ed. 2d 708; see also Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U.S. 589, 605-606, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967). Nevertheless, a citizen who accepts public employment “must accept certain limitations on his or her freedom.” Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006). The government has a substantial interest in ensuring that all of its operations are efficient and effective. That interest may require broad authority to supervise the conduct of public employees. “When someone who is paid a salary so that she will contribute to an agency’s effective operation begins to do or say things that detract

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from the agency’s effective operation, the government employer must have some power to restrain her.” Waters v. Churchill, 511 U.S. 661, 675, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994) (plurality opinion). Restraints are justified by the consensual nature of the employment relationship and by the unique nature of the government’s interest.

This case arises under the Petition Clause, not the Speech Clause. The parties litigated the case on the premise that Guarnieri’s grievances and lawsuit are petitions protected by the Petition Clause. This Court’s precedents confirm that the Petition Clause protects the right of individuals to appeal to courts and other forums established by the government for resolution of legal disputes. “[T]he right of access to courts for redress of wrongs is an aspect of the First Amendment right to petition the government.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 896-897, 104 S. Ct. 2803, 81 L. Ed. 2d 732 (1984); see also BE&K Constr. Co. v. NLRB, 536 U.S. 516, 525, 122 S. Ct. 2390, 153 L. Ed. 2d 499 (2002); Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741, 103 S. Ct. 2161, 76 L. Ed. 2d 277 (1983); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513, 92 S. Ct. 609, 30 L. Ed. 2d 642 (1972). Although retaliation by a government employer for a public employee’s exercise of the right of access to the courts may implicate the protections of the Petition Clause, this case provides no necessity to consider the correct application of the Petition Clause beyond that context.

Although this case proceeds under the Petition Clause, Guarnieri just as easily could have alleged that his employer retaliated against him for the speech contained within his grievances and lawsuit. That claim would have been subject to the public concern test already described. Because Guarnieri chose to proceed under the Petition Clause, however, the Court of Appeals applied a more generous rule. Following the decision of the Court of Appeals in San Filippo, supra, at 443, Guarnieri was deemed entitled to protection from retaliation so long as his petition was not a “sham.” Under that rule, defendants and other public employers might be liable under the Petition Clause even if the same

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conduct would not give rise to liability under the Speech Clause. The question presented by this case is whether the history and purpose of the Petition Clause justify the imposition of broader liability when an employee invokes its protection instead of the protection afforded by the Speech Clause.

It is not necessary to say that the two Clauses are identical in their mandate or their purpose and effect to acknowledge that the rights of speech and petition share substantial common ground. This Court has said that the right to speak and the right to petition are “cognate rights.” Thomas v. Collins, 323 U.S. 516, 530, 65 S. Ct. 315, 89 L. Ed. 430 (1945); see also Wayte v. United States, 470 U.S. 598, 610, n. 11, 105 S. Ct. 1524, 84 L. Ed. 2d 547 (1985). “It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances.” Thomas, 323 U.S., at 530, 65 S. Ct. 315, 89 L. Ed. 430. Both speech and petition are integral to the democratic process, although not necessarily in the same way. The right to petition allows citizens to express their ideas, hopes, and concerns to their government and their elected representatives, whereas the right to speak fosters the public exchange of ideas that is integral to deliberative democracy as well as to the whole realm of ideas and human affairs. Beyond the political sphere, both speech and petition advance personal expression, although the right to petition is generally concerned with expression directed to the government seeking redress of a grievance.

Courts should not presume there is always an essential equivalence in the two Clauses or that Speech Clause precedents necessarily and in every case resolve Petition Clause claims. See ibid, (rights of speech and petition are “not identical”). Interpretation of the Petition Clause must be guided by the objectives and aspirations that underlie the right. A petition conveys the special concerns of its author to the government and, in its usual form, requests action by

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the government to address those concerns. See Sure-Tan, Inc., supra, at 896-897, 104 S. Ct. 2803, 81 L. Ed. 2d 732.

This Court’s opinion in McDonald v. Smith, 412 U.S. 479, 105 S. Ct. 2787, 86 L. Ed. 2d 384 (1985), has sometimes been interpreted to mean that the right to petition can extend no further than the right to speak; but McDonald held only that speech contained within a petition is subject to the same standards for defamation and libel as speech outside a petition. In those circumstances the Court found “no sound basis for granting greater constitutional protection to statements made in a petition . . . than other First Amendment expressions.” Id., at 485, 105 S. Ct. 2787, 86 L. Ed. 2d 384. There may arise cases where the special concerns of the Petition Clause would provide a sound basis for a distinct analysis; and if that is so, the rules and principles that define the two rights might differ in emphasis and formulation.

As other Courts of Appeals have recognized, however, claims of retaliation by public employees do not call for this divergence. See supra, at 385, 180 L. Ed. 2d, at 419. The close connection between these rights has led Courts of Appeals other than the Third Circuit to apply the public concern test developed in Speech Clause cases to Petition Clause claims by public employees. As will be explained further, this approach is justified by the extensive common ground in the definition and delineation of these rights. The considerations that shape the application of the Speech Clause to public employees apply with equal force to claims by those employees under the Petition Clause.

The substantial government interests that justify a cautious and restrained approach to the protection of speech by public employees are just as relevant when public employees proceed under the Petition Clause. Petitions, no less than speech, can interfere with the efficient and effective operation of government. A petition may seek to achieve results that “contravene governmental policies or impair the proper performance of governmental functions.” Garcetti, 547 U.S., at 419, 126 S. Ct. 1951, 164 L. Ed. 2d 689. Government must have authority, in appropriate

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circumstances, to restrain employees who use petitions to frustrate progress toward the ends they have been hired to achieve. A petition, like other forms of speech, can bring the “mission of the employer and the professionalism of its officers into serious disrepute.” Roe, 543 U.S., at 81, 125 S. Ct. 521, 160 L. Ed. 2d 410. A public employee might, for instance, use the courts to pursue personal vendettas or to harass members of the general public. That behavior could cause a serious breakdown in public confidence in the government and its employees. And if speech or petition were directed at or concerned other public employees, it could have a serious and detrimental effect on morale.

When a petition takes the form of a lawsuit against the government employer, it may be particularly disruptive. Unlike speech of other sorts, a lawsuit demands a response. Mounting a defense to even frivolous claims may consume the time and resources of the government employer. Outside the context of public employment, this Court has recognized that the Petition Clause does not protect “objectively baseless” litigation that seeks to “ ‘interfere directly with the business relationships of a competitor.’ ” Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 60-61, 113 S. Ct. 1920, 123 L. Ed. 2d 611 (1993) (quoting Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 144, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961)). In recognition of the substantial costs imposed by litigation, Congress has also required civil rights plaintiffs whose suits are “frivolous, unreasonable, or without foundation” to pay attorney’s fees incurred by defendants. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S. Ct. 694, 54 L. Ed. 2d 648 (1978); see also Fed. Rule Civ. Proc. 11 (providing sanctions for claims that are “presented for [an] improper purpose,” frivolous, or lacking evidentiary support). The government likewise has a significant interest in disciplining public employees who abuse the judicial process.

Unrestrained application of the Petition Clause in the context of government employment would subject a wide

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range of government operations to invasive judicial superintendence. Employees may file grievances on a variety of employment matters, including working conditions, pay, discipline, promotions, leave, vacations, and terminations. See Brief for National School Boards Association as Amicus Curiae 5. Every government action in response could present a potential federal constitutional issue. Judges and juries, asked to determine whether the government’s actions were in fact retaliatory, would be required to give scrutiny to both the government’s response to the grievance and the government’s justification for its actions. This would occasion review of a host of collateral matters typically left to the discretion of public officials. Budget priorities, personnel decisions, and substantive policies might all be laid before the jury. This would raise serious federalism and separation-of-powers concerns. It would also consume the time and attention of public officials, burden the exercise of legitimate authority, and blur the lines of accountability between officials and the public.

This case illustrates these risks and costs. Guarnieri’s attorney invited the jury to review myriad details of government decisionmaking. She questioned the council’s decision to issue directives in writing, rather than orally, Tr. 66 (Apr. 14, 2008); the council’s failure to consult the mayor before issuing the directives, id., at 105 (Apr. 15, 2008); the amount of money spent to employ “Philadelphia lawyers” to defend Guarnieri’s legal challenges, id., at 191 to 193:7-10 (Apr. 14, 2008), 152-153 (Apr. 16, 2008); and the wisdom of the council’s decision to spend money to install Global Positioning System devices on police cars, id., at 161-162 (same). Finally, the attorney invited the jury to evaluate the council’s decisions in light of an emotional appeal on behalf of Guarnieri’s “little dog Hercules, little white fluffy dog and half Shitsu.” Id., at 49:13-14 (Apr. 14, 2008). It is precisely to avoid this intrusion into internal governmental affairs that this Court has held that, “while the First Amendment invests public

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employees with certain rights, it does not empower them to ‘constitutionalize the employee grievance.’ ” Garcetti, 547 U.S., at 420, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (quoting Connick, 461 U.S., at 154, 103 S. Ct. 1684, 75 L. Ed. 2d 708).

If the Petition Clause were to apply even where matters of public concern are not involved, that would be unnecessary, or even disruptive, when there is already protection for the rights of public employees to file grievances and to litigate. The government can and often does adopt statutory and regulatory mechanisms to protect the rights of employees against improper retaliation or discipline, while preserving important government interests. Cf. Garcetti, supra, at 425, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (noting a “powerful network of legislative enactments”). Employees who sue under federal and state employment laws often benefit from generous and quite detailed antiretaliation provisions. See, e.g., Pa. Stat. Ann., Tit. 43, § 1101.1201(a)(4) (Purdon 2009); § 1101.1302. These statutory protections are subject to legislative revision and can be designed for the unique needs of State, local, or Federal Governments, as well as the special circumstances of particular governmental offices and agencies. The Petition Clause is not an instrument for public employees to circumvent these legislative enactments when pursuing claims based on ordinary workplace grievances.

In light of the government’s interests in the public employment context, it would be surprising if Petition Clause claims by public employees were not limited as necessary to protect the employer’s functions and responsibilities. Even beyond the Speech Clause, this Court has explained that “government has significantly greater leeway in its dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large.” Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 599, 128 S. Ct. 2146, 170 L. Ed. 2d 975 (2008); see also NASA v. Nelson, 562 U.S. 134, 148-149, 131 S. Ct. 746, 178 L. Ed. 2d 667 (2011). The government’s interest in managing its internal affairs requires proper restraints on the invocation of rights by employees when the workplace or the government employer’s responsibilities

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may be affected. There is no reason to think the Petition Clause should be an exception.

The public concern test was developed to protect these substantial government interests. Adoption of a different rule for Petition Clause claims would provide a ready means for public employees to circumvent the test’s protections. Consider Sheila Myers, who was the original plaintiff in Con-nick. She circulated “a questionnaire soliciting the views of her fellow staff members” on various office matters. 461 U.S., at 141, 103 S. Ct. 1684, 75 L. Ed. 2d 708. The Court held that Myers’ claim for retaliation failed the public concern test because the questionnaire was “most accurately characterized as an employee grievance concerning internal office policy.” Id., at 154, 103 S. Ct. 1684, 75 L. Ed. 2d 708. It would undermine that principle if a different result would have obtained had Myers raised those same claims using a formal grievance procedure. Myers’ employer “reasonably believed [Myers’ complaints] would disrupt the office, undermine his authority, and destroy close working relationships.” Ibid. These concerns would be no less significant in the context of a formal grievance. Employees should not be able to evade the rule articulated in the Con-nick case by wrapping their speech in the mantle of the Petition Clause.

Articulation of a separate test for the Petition Clause would aggravate potential harm to the government’s interests by compounding the costs of compliance with the Constitution. A different rule for each First Amendment claim would require employers to separate petitions from other speech in order to afford them different treatment; and that, in turn, would add to the complexity and expense of compliance with the Constitution. Identifying petitions might be easy when employees employ formal grievance procedures, but the right to petition is not limited to petitions lodged under formal procedures. See, e.g., Brown v. Louisiana, 383 U.S. 131, 86 S. Ct. 719, 15 L. Ed. 2d 637 (1966). Indeed, the employee in Connick could have made a colorable argument that her questionnaire ought to be viewed as a petition for redress of grievances.

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Guarnieri claims application of the public concern test to the Petition Clause would be inappropriate in light of the private nature of many petitions for redress of grievances. The Petition Clause undoubtedly does have force and application in the context of a personal grievance addressed to the government. See, e.g., Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 84 S. Ct. 1113, 12 L. Ed. 2d 89 (1964); Thomas, 323 U.S., at 530-531, 65 S. Ct. 315, 89 L. Ed. 2d 430. At the founding, citizens petitioned on a wide range of subjects, including matters of both private and public concern. Petitions to the colonial legislatures concerned topics as diverse as debt actions, estate distributions, divorce proceedings, and requests for modification of a criminal sentence. Higginson, A Short History of the Right To Petition Government for the Redress of Grievances, 96 Yale L. J. 142, 146 (1986). Although some claims will be of interest only to the individual making the appeal, for that individual the need for a legal remedy may be a vital imperative. See, e.g., M. L. B. v. S. L. J., 519 U.S. 102, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996); Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971). Outside the public employment context, constitutional protection for petitions does not necessarily turn on whether those petitions relate to a matter of public concern.

There is, however, no merit to the suggestion that the public concern test cannot apply under the Petition Clause because the majority of petitions to colonial legislatures addressed matters of purely private concern. In analogous cases under the Speech Clause, this Court has noted the “Constitution’s special concern with threats to the right of citizens to participate in political affairs,” Connick, supra, at 145, 103 S. Ct. 1684, 75 L. Ed. 2d 708, even though it is likely that, in this and any other age, most speech concerns purely private matters. The proper scope and application of the Petition Clause likewise cannot be determined merely by tallying up petitions to the colonial legislatures. Some effort must be made to identify the historic and fundamental principles that led to the enumeration of the right to petition in the First Amendment, among other rights fundamental to liberty.

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Petitions to the government assume an added dimension when they seek to advance political, social, or other ideas of interest to the community as a whole. Petition, as a word, a concept, and an essential safeguard of freedom, is of ancient significance in the English law and the Anglo-American legal tradition. See, e.g., 1 W. Blackstone, Commentaries *143. The right to petition applied to petitions from nobles to the King, from Parliament to the King, and from the people to the Parliament, and it concerned both discrete, personal injuries and great matters of state.

The right to petition traces its origins to Magna Carta, which confirmed the right of barons to petition the King. W. McKechnie, Magna Carta: A Commentary on the Great Charter of King John 467 (rev. 2d ed. 1958). The Magna Carta itself was King John’s answer to a petition from the barons. Id., at 30-38. Later, the Petition of Right of 1628 drew upon centuries of tradition and Magna Carta as a model for the Parliament to issue a plea, or even a demand, that the Crown refrain from certain actions. 3 Car. 1, ch. 1 (1627), 5 Statutes of the Realm 23. The Petition of Right stated four principal grievances: taxation without consent of Parliament; arbitrary imprisonment; quartering or billeting of soldiers; and the imposition of martial law. After its passage by both Houses of Parliament, the Petition received the King’s assent and became part of the law of England. See S. Gardiner, The First Two Stuarts and the Puritan Revolution, 1603-1660, pp. 60-61 (1886). The Petition of Right occupies a place in English constitutional history superseded in importance, perhaps, only by Magna Carta itself and the Declaration of Right of 1689.

The following years saw use of mass petitions to address matters of public concern. See 8 D. Hume, History of England from the Invasion of Julius Caesar to the Revolution in 1688, p. 122 (1763) (“Tumultuous petitioning ... was an admirable expedient... for spreading discontent, and for uniting the nation in any popular clamour”). In 1680, for instance, more than 15,000 persons signed a petition regarding the

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summoning and dissolution of Parliament, “one of the major political issues agitating the nation.” Knights, London’s ‘Monster’ Petition, 36 Historical Journal 39, 40-43 (1993). Nine years later, the Declaration of Right listed the illegal acts of the sovereign and set forth certain rights of the King’s subjects, one of which was the right to petition the sovereign. It stated that “it is the Right of the Subjects to petition the King and all Commitments and Prosecutions for such Petitioning are Illegall.” 1 W. & M., ch. 2, 6 Statutes of the Realm 143; see also L. Schwoerer, The Declaration of Rights, 1689, pp. 69-71 (1981).

The Declaration of Independence of 1776 arose in the same tradition. After listing other specific grievances and wrongs, it complained, “In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury.” The Declaration of Independence ¶ 30.

After independence, petitions on matters of public concern continued to be an essential part of contemporary debates in this country’s early history. Two years before the adoption of the Constitution, James Madison’s Memorial and Remonstrance against Religious Assessments, an important document in the history of the Establishment Clause, was presented to the General Assembly of the Commonwealth of Virginia as a petition. See 1 D. Laycock, Religious Liberty: Overviews and History 90 (2010); Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125, 140-141, 131 S. Ct. 1436, 179 L. Ed. 2d 523 (2011). It attracted over 1,000 signatures. Laycock, supra, at 90, n. 153. During the ratification debates, Antifederalists circulated petitions urging delegates not to adopt the Constitution absent modification by a bill of rights. Boyd, Antifederalists and the Acceptance of the Constitution: Pennsylvania, 1787-1792, 9 Publius, No. 2, pp. 123, 128-133 (Spring 1979).

Petitions to the National Legislature also played a central part in the legislative debate on the subject of slavery in the years before the Civil War. See W. Miller, Arguing

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About Slavery (1995). Petitions allowed participation in democratic governance even by groups excluded from the franchise. See Mark, The Vestigial Constitution: The History and Significance of the Right to Petition, 66 Ford. L. Rev. 2153, 2182 (1998). For instance, petitions by women seeking the vote had a role in the early woman’s suffrage movement. See Cogan & Ginzberg, 1846 Petition for Woman’s Suffrage, New York State Constitutional Convention, 22 Signs 427, 437-438 (1997). The right to petition is in some sense the source of other fundamental rights, for petitions have provided a vital means for citizens to request recognition of new rights and to assert existing rights against the sovereign.

Petitions to the courts and similar bodies can likewise address matters of great public import. In the context of the civil rights movement, litigation provided a means for “the distinctive contribution of a minority group to the ideas and beliefs of our society.” NAACP v. Button, 371 U.S. 415, 431, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963). Individuals may also “engag[e] in litigation as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public.” In re Primus, 436 U.S. 412, 431, 98 S. Ct. 1893, 56 L. Ed. 2d 417 (1978). Litigation on matters of public concern may facilitate the informed public participation that is a cornerstone of democratic society. It also allows individuals to pursue desired ends by direct appeal to government officials charged with applying the law.

The government may not misuse its role as employer unduly to distort this deliberative process. See Garcetti, 547 U.S., at 419, 126 S. Ct. 1951, 164 L. Ed. 2d 689. Public employees are “the members of a community most likely to have informed and definite opinions” about a wide range of matters related, directly or indirectly, to their employment. Pickering, 391 U.S., at 572, 88 S. Ct. 1731, 20 L. Ed. 2d 811. Just as the public has a right to hear the views of public employees, the public has a right to the benefit of those employees’ participation in petitioning activity. Petitions may “allow the public airing of disputed facts” and “promote the evolution

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of the law by supporting the development of legal theories,” BE&K Constr. Co., 536 U.S., at 532, 122 S. Ct. 2390, 153 L. Ed. 2d 499 (internal quotation marks omitted), and these and other benefits may not accrue if one class of knowledgeable and motivated citizens is prevented from engaging in petitioning activity. When a public employee seeks to participate, as a citizen, in the process of deliberative democracy, either through speech or petition, “it is necessary to regard the [employee] as the member of the general public he seeks to be.” Pickering, supra, at 574, 88 S. Ct. 1731, 20 L. Ed. 2d 811.

The framework used to govern Speech Clause claims by public employees, when applied to the Petition Clause, will protect both the interests of the government and the First Amendment right. If a public employee petitions as an employee on a matter of purely private concern, the employee’s First Amendment interest must give way, as it does in speech cases. Roe, 543 U.S., at 82-83, 125 S. Ct. 521, 160 L. Ed. 2d 410. When a public employee petitions as a citizen on a matter of public concern, the employee’s First Amendment interest must be balanced against the countervailing interest of the government in the effective and efficient management of its internal affairs. Pickering, supra, at 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811. If that balance favors the public employee, the employee’s First Amendment claim will be sustained. If the interference with the government’s operations is such that the balance favors the employer, the employee’s First Amendment claim will fail even though the petition is on a matter of public concern.

As under the Speech Clause, whether an employee’s petition relates to a matter of public concern will depend on “the content, form, and context of [the petition], as revealed by the whole record.” Connick, 461 U.S., at 147-148, and n. 7, 103 S. Ct. 1684, 75 L. Ed. 2d 708. The forum in which a petition is lodged will be relevant to the determination whether the petition relates to a matter of public concern. See Snyder v. Phelps, 562 U.S. 443, 454-455, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011). A petition filed with an employer using an internal grievance procedure in many cases will not seek to communicate to the public or to advance a political or social point of view beyond the employment context.

[564 U.S. 399]

Of course in one sense the public may always be interested in how government officers are performing their duties. But as the Connick and Pickering test has evolved, that will not always suffice to show a matter of public concern. A petition that “involves nothing more than a complaint about a change in the employee’s own duties” does not relate to a matter of public concern and accordingly “may give rise to discipline without imposing any special burden of justification on the government employer.” United States v. Treasury Employees, 513 U.S. 454, 466, 115 S. Ct. 1003, 130 L. Ed. 2d 964 (1995). The right of a public employee under the Petition Clause is a right to participate as a citizen, through petitioning activity, in the democratic process. It is not a right to transform everyday employment disputes into matters for constitutional litigation in the federal courts.

Ill

Because the Third Circuit did not find it necessary to apply this framework, there has been no determination as to how it would apply in the context of this case. The parties did not address the issue in the opening brief or the response, and the United States did not address the issue in its brief as amicus curiae. In their reply brief, petitioners suggest that this Court should address the issue and resolve it in their favor. Yet in their opening brief petitioners sought only vacatur and remand. This Court need not consider this issue without the benefit of full briefs by the parties.

The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

SEPARATE OPINIONS

Justice Thomas,

concurring in the judgment.

For the reasons set forth by Justice Scalia, I seriously doubt that lawsuits are “petitions” within the original meaning of the Petition Clause of the First Amendment. See post, at 403-404, 180 L. Ed. 2d, at 430-431 (opinion concurring in judgment in part and dissenting in part). Unreasoned statements to the contrary

[564 U.S. 400]

in this Court’s prior decisions do not convince me otherwise. Like the Court, however, I need not decide that question today because “[t]he parties litigated the case on the premise that Guarnieri’s grievances and lawsuit are petitions protected by the Petition Clause.” Ante, at 387, 180 L. Ed. 2d, at 420.

I also largely agree with Justice Scalia about the framework for assessing public employees’ retaliation claims under the Petition Clause. The “public concern” doctrine of Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983), is rooted in the First Amendment’s core protection of speech on matters of public concern and has no relation to the right to petition. See post, at 404-407, 180 L. Ed. 2d, at 431-433. I would not import that test into the Petition Clause. Rather, like Justice Scalia, I would hold that “the Petition Clause protects public employees against retaliation for filing petitions unless those petitions are addressed to the government in its capacity as the petitioners’ employer, rather than its capacity as their sovereign.” Post, at 407, 180 L. Ed. 2d, at 433.

But I would not end the analysis after determining that a petition was addressed to the government as sovereign. Recognizing “the realities of the employment context,” we have held that “government has significantly greater leeway in its dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large.” Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 600, 599, 128 S. Ct. 2146, 170 L. Ed. 2d 975 (2008). Even where a public employee petitions the government in its capacity as sovereign, I would balance the employee’s right to petition the sovereign against the government’s interest as an employer in the effective and efficient management of its internal affairs. Cf. Garcetti v. Ceballos, 547 U.S. 410, 419, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006) (noting that employees “speaking as citizens about matters of public concern” still must “face . .. speech restrictions that are necessary for their employers to operate efficiently and effectively”); United States v. Treasury Employees, 513 U.S. 454, 492, 115 S. Ct. 1003, 130 L. Ed. 2d 964 (1995) (Rehnquist, C. J., dissenting) (“In conducting this balance

[564 U.S. 401]

[in the Speech Clause context], we consistently have given substantial weight to government employers’ reasonable predictions of disruption, even when the speech involved was on a matter of public concern”); O’Connor v. Ortega, 480 U.S. 709, 721-722, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987) (plurality opinion) (balancing the “realities of the workplace” against the “legitimate privacy interests of public employees” to conclude that a warrant requirement would “seriously disrupt the routine conduct of business” and “be unduly burdensome”). In assessing a retaliation claim under the Petition Clause, courts should be able to conclude that, in instances when the petition is especially disruptive, as some lawsuits might be, the balance of interests may weigh in favor of the government employer.

Applying this framework, I would vacate the judgment and remand. The Court of Appeals erred with respect to both Guarnieri’s union grievance and his 42 U.S.C. § 1983 suit. First, even assuming the grievance was a petition, it was addressed to the local government in its capacity as Guarnieri’s employer. See post, at 408, 180 L. Ed. 2d, at 434 (opinion of Scalia, J.). Second, Guarnieri addressed his § 1983 suit to the Federal Government in its capacity as sovereign, not to the local government as his employer. See ibid. But the Court of Appeals did not consider whether the local government’s interest as an employer “in achieving its goals as effectively and efficiently as possible” nevertheless outweighs Guarnieri’s interest in petitioning the Federal Government regarding his local employment. Engquist, supra, at 598, 128 S. Ct. 2146, 170 L. Ed. 2d 975 (internal quotation marks omitted). I would vacate and remand for the Court of Appeals to conduct that analysis in the first instance.

Justice Scalia,

concurring in the judgment in part and dissenting in part.

I disagree with two aspects of the Court’s reasoning. First, the Court is incorrect to state that our “precedents

[564 U.S. 402]

confirm that the Petition Clause protects the right of individuals to appeal to courts and other forums established by the government for resolution of legal disputes.” Ante, at 387, 180 L. Ed. 2d, at 420. Our first opinion clearly saying that lawsuits are “Petitions” under the Petition Clause came less than 40 years ago. In California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S. Ct. 609, 30 L. Ed. 2d 642 (1972), an opinion by Justice Douglas, the Court asserted that “ [t]he right of access to the courts is indeed but one aspect of the right of petition.” Id., at 510, 92 S. Ct. 609, 30 L. Ed. 2d 642. As authority it cited two habeas corpus cases, Johnson v. Avery, 393 U.S. 483, 89 S. Ct. 747, 21 L. Ed. 2d 718 (1969), and Ex parte Hull, 312 U.S. 546, 61 S. Ct. 640, 85 L. Ed. 1034 (1941), neither of which even mentioned the Petition Clause. The assertion, moreover, was pure dictum. The holding of California Motor Transport was that the Noerr-Pennington doctrine, a judicial gloss on the Sherman Act that had been held to immunize certain lobbying (legislature-petitioning) activity, did not apply to sham litigation that “sought to bar . . . competitors from meaningful access to adjudicatory tribunals,” 404 U.S., at 510-512, 92 S. Ct. 609, 30 L. Ed. 2d 642. The three other cases cited by the Court as holding that lawsuits are petitions, ante, at 387, 180 L. Ed. 2d, at 421, are all statutory interpretation decisions construing the National Labor Relations Act, albeit against the backdrop of the Petition Clause. See BE&K Constr. Co. v. NLRB, 536 U.S. 516, 534-536, 122 S. Ct. 2390, 153 L. Ed. 2d 499 (2002); Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 896-897, 104 S. Ct. 2803, 81 L. Ed. 2d 732 (1984); Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 741-743, 103 S. Ct. 2161, 76 L. Ed. 2d 277 (1983). The Court has never actually held that a lawsuit is a constitutionally protected “Petition,” nor does today’s opinion hold that. The Court merely observes that “[t]he parties litigated the case on the premise that Guarnieri’s grievances and lawsuit

[564 U.S. 403]

are petitions protected by the Petition Clause,” ante, at 387, 180 L. Ed. 2d, at 420, and concludes that Guarnieri’s 42 U.S.C. § 1983 claim would fail even if that premise were correct.

I find the proposition that a lawsuit is a constitutionally protected “Petition” quite doubtful. The First Amendment’s Petition Clause states that “Congress shall make no law . . . abridging . . . the right of the people ... to petition the Government for a redress of grievances.” The reference to “the right of the people” indicates that the Petition Clause was intended to codify a pre-existing individual right, which means that we must look to historical practice to determine its scope. See District of Columbia v. Heller, 554 U.S. 570, 579, 592, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008).

There is abundant historical evidence that “Petitions” were directed to the executive and legislative branches of government, not to the courts. In 1765, the Stamp Act Congress stated “[t]hat it is the right of the British subjects in these colonies to petition the King or either House of Parliament.” Declaration of Rights and Grievances, Art. 13, reprinted in 1 B. Schwartz, The Bill of Rights: A Documentary History 195, 198 (1971); it made no mention of petitions directed to the courts. As of 1781, seven state constitutions protected citizens’ right to apply or petition for redress of grievances; all seven referred only to legislative petitions. See Andrews, A Right of Access to Court Under the Petition Clause of the First Amendment: Defining the Right, 60 Ohio St. L. J. 557, 604-605, n. 159 (1999). The Judiciary Act of 1789 did not grant federal trial courts jurisdiction to hear lawsuits arising under federal law; there is no indication anyone ever thought that this restriction infringed on the right of citizens to petition the Federal Government for redress of grievances. The fact that the Court never affirmed a First Amendment right to litigate until its unsupported dictum in 1972—after having heard almost 200 years’ worth of lawsuits, untold numbers of which might have been affected by a First Amendment right to litigate—should give rise to a

[564 U.S. 404]

strong suspicion that no such right exists. “[A] universal and long-established tradition of prohibiting certain conduct creates a strong presumption that the prohibition is constitutional: Principles of liberty fundamental enough to have been embodied within constitutional guarantees are not readily erased from the Nation’s consciousness.” Nevada Comm’n on Ethics v. Carrigan, ante, at 122, 131 S. Ct. 2343, 180 L. Ed. 2d 150 (internal quotation marks omitted).

I acknowledge, however, that scholars have made detailed historical arguments to the contrary. See, e.g., Andrews, supra, at 595-625; Pfander, Sovereign Immunity and the Right To Petition: Toward a First Amendment Right To Pursue Judicial Claims Against the Government, 91 Nw. U. L. Rev. 899, 903-962 (1997). As the Court’s opinion observes, the parties have not litigated the issue, and so I agree we should leave its resolution to another day.

Second, and of greater practical consequence, I disagree with the Court’s decision to apply the “public concern” framework of Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983), to retaliation claims brought under the Petition Clause. The Court correctly holds that the Speech Clause and Petition Clause are not coextensive, ante, at 388-389, 180 L. Ed. 2d, at 421-422. It acknowledges, moreover, that the Petition Clause protects personal grievances addressed to the government, ante, at 394, 180 L. Ed. 2d, at 425. But that is an understatement—rather like acknowledging that the Speech Clause protects verbal expression. “[T]he primary responsibility of colonial assemblies was the settlement of private disputes raised by petitions.” Higginson, A Short History of the Right To Petition Government for the Redress of Grievances, 96 Yale L. J. 142, 145 (1986). “[T]he overwhelming majority of First Congress petitions presented private claims.” 8 Documentary History of the First Federal Congress of the United States, 1789-1791, p. xviii (K. Bowling, W. diGiacomantonio, & C. Bickford eds. 1998). The Court nonetheless holds that, at least in public employment cases, the Petition Clause and Speech Clause should be

[564 U.S. 405]

treated identically, so that since the Speech Clause does not prohibit retaliation against public employees for speaking on matters of private concern, neither does the Petition Clause. The Court gives two reasons for this: First, “[a] different rule for each First Amendment claim would . . . add to the complexity and expense of compliance with the Constitution” and “would provide a ready means for public employees to circumvent the test’s protections,” and second, “ [petitions to the government assume an added dimension when they seek to advance political, social, or other ideas of interest to the community as a whole.” Ante, at 393, 395, 180 L. Ed. 2d, at 424, 425.

Neither reason is persuasive. As to the former: The complexity of treating the Petition Clause and Speech Clause separately is attributable to the inconsiderate disregard for judicial convenience displayed by those who ratified a First Amendment that included both provisions as separate constitutional rights. A plaintiff does not engage in pernicious “circumvention” of our Speech Clause precedents when he brings a claim premised on a separate enumerated right to which those precedents are inapplicable.

As to the latter: Perhaps petitions on matters of public concern do in some sense involve an “added dimension,” but that “added dimension” does not obliterate what has traditionally been the principal dimension of the Petition Clause. The public-concern limitation makes sense in the context of the Speech Clause, because it is speech on matters of public concern that lies “within the core of First Amendment protection.” Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 600, 128 S. Ct. 2146, 170 L. Ed. 2d 975 (2008). The Speech Clause “has its fullest and most urgent application to speech uttered during a campaign for political office.” Citizens United v. Federal Election Comm’n, 558 U.S. 310, 339, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010) (internal quotation marks omitted). The unique protection granted to political speech is grounded in the history of the Speech Clause, which “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the

[564 U.S. 406]

people.” Connick, supra, at 145, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (internal quotation marks omitted).

But the mere fact that we have a longstanding tradition of granting heightened protection to speech of public concern does not suggest that a “public concern” requirement should be written into other constitutional provisions. We would not say that religious proselytizing is entitled to more protection under the Free Exercise Clause than private religious worship because public proclamations are “core free exercise activity.” Nor would we say that the due process right to a neutral adjudicator is heightened in the context of litigation of national importance because such litigation is somehow at the “core of the due process guarantee.” Likewise, given that petitions to redress private grievances were such a high proportion of petitions at the founding—a proportion that is infinitely higher if lawsuits are considered to be petitions—it is ahistorical to say that petitions on matters of public concern constitute “core petitioning activity.” In the Court’s view, if Guarnieri had submitted a letter to one of the borough of Duryea’s council members protesting a tax assessment that he claimed was mistaken; and if the borough had fired him in retaliation for that petition; Guarnieri would have no claim for a Petition Clause violation. That has to be wrong. It takes no account of, and thus frustrates, the principal purpose of the Petition Clause.

The Court responds that “[t]he proper scope and application of the Petition Clause . . . cannot be determined merely by tallying up petitions to the colonial legislatures,” ante, at 394, 180 L. Ed. 2d, at 425, but that misses the point. The text of the Petition Clause does not distinguish petitions of public concern from petitions of private concern. Accordingly, there should be no doctrinal distinction between them unless the history or tradition of the Petition Clause justifies it. The mere fact that the Court can enumerate several historical petitions of public importance, ante, at 395-397, 180 L. Ed. 2d, at 426-427, does not establish such a tradition, given that petitions for redress of private grievances

[564 U.S. 407]

vastly outnumbered them. Indeed, the Court’s holding is contrary to this Court’s historical treatment of the Petition Clause, assuming (as the Court believes) that the Clause embraces litigation: We have decided innumerable cases establishing constitutional rights with respect to litigation, and until today not a one of them has so much as hinted that litigation of public concern enjoys more of those rights than litigation of private concern. The Court’s belief in the social importance of public petitions, and its reminiscences of some of the public-petition greats of yesteryear, ibid., do not justify the proclamation of special constitutional rights for public petitions. It is the Constitution that establishes constitutional rights, not the Justices’ notions of what is important, or the top numbers on their Petition Hit Parade. And there is no basis for believing that the Petition Clause gives special protection to public petitions.

Rather than shoehorning the “public concern” doctrine into a Clause where it does not fit, we should hold that the Petition Clause protects public employees against retaliation for filing petitions unless those petitions are addressed to the government in its capacity as the petitioners’ employer, rather than its capacity as their sovereign. As the Court states, we have long held that “government has significantly greater leeway in its dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large.” Ante, at 392, 180 L. Ed. 2d, at 424 (quoting Engquist, supra, at 599, 128 S. Ct. 2146, 170 L. Ed. 2d 975; internal quotation marks omitted). To apply to the Petition Clause context what we have said regarding the Speech Clause: When an employee files a petition with the government in its capacity as his employer, he is not acting “as [a] citize[n] for First Amendment purposes,” because “there is no relevant analogue to [petitions] by citizens who are not government employees.” Garcetti v. Ceballos, 547 U.S. 410, 421, 423-424, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006). To be sure, the line between a petition addressed to government as the petitioner’s employer and one addressed to it as sovereign is not always clear, but it is

[564 U.S. 408]

no more fuzzy than the line between matters of private and matters of public concern. The criterion I suggest would largely resolve the legitimate practical concerns identified by the Court, ante, at 390-393, 180 L. Ed. 2d, at 422-424, while recognizing and giving effect to the difference between the Speech and Petition Clauses.

Under what I think to be the proper test, the Third Circuit judgment before us here should be reversed in part and affirmed in part. The portion of it upholding Guarnieri’s claim of retaliation for having filed his union grievance must be reversed. A union grievance is the epitome of a petition addressed to the government in its capacity as the petitioner’s employer. No analogous petitions to the government could have been filed by private citizens, who are not even permitted to avail themselves of Guarnieri’s union grievance procedure. Contrariwise, the portion of the judgment upholding Guarnieri’s claim of retaliation for having filed his § 1983 claim must be affirmed. Given that Guarnieri was not an employee of the Federal Government, it is impossible to say that the § 1983 claim was addressed to government in its capacity as his employer. I think it clear that retaliating against a state employee for writing a letter to his Congressman

[564 U.S. 409]

about his state job would run afoul of the Petition Clause. Assuming that the § 1983 lawsuit should be treated like a letter to a Congressman for Petition Clause purposes—a proposition which, I again emphasize, is doubtful, but which the parties do not dispute in this case—retaliation for having filed his lawsuit also violates the Clause.

      . Respondent would agree, since he cited this case in argument as the earliest. Tr. of Oral Arg. 36. There were, however, three cases in the 1960’s which adverted vaguely to lawsuits as involving the right to petition. See Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 222-224, 88 S. Ct. 353, 19 L. Ed. 2d 426 (1967); Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 7, 84 S. Ct. 1113, 12 L. Ed. 2d 89 (1964); NAACP v. Button, 371 U.S. 415, 430, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963).

      . Compare, e.g., Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 927 (CA9 2004) (testimony concerning claim of employment discrimination by government contractor constituted matter of public concern because “[l]itigation seeking to expose . . . wrongful governmental activity is, by its very nature, a matter of public concern’’), with Padilla v. South Harrison R-II School Dist., 181 F.3d 992, 997 (CA8 1999) (teacher’s testimony approving sexual relationship between teacher and minor was matter of private concern because it “does not relate to the teacher’s legitimate disagreement with a school board’s policies’’). And compare, e.g., Voigt v. Savell, 70 F.3d 1552, 1560 (CA9 1995) (speech regarding how judge handled two internal personnel matters was matter of public concern because “[t]he public has an interest in knowing whether the court treats its job applicants fairly’’), with Maggio v. Sipple, 211 F.3d 1346, 1353 (CA11 2000) (testimony at hearing concerning employee grievance was matter of private concern because it did “not allege . . . fraud or corruption in [defendant’s] implementation of its personnel policies and appeal procedures’’).


author: Justice Ginsburg Justice Alito,

text:
    [564 U.S. 410]
    AMERICAN ELECTRIC POWER COMPANY, INC., et al., Petitioners v CONNECTICUT et al.
    564 U.S. 410, 131 S. Ct. 2527,
    180 L. Ed. 2d 435,
    2011 U.S. LEXIS 4565
    [No. 10-174]
    Argued April 19, 2011.
    Decided June 20, 2011.

      APPEARANCES OF COUNSEL ARGUING CASE
    Peter D. Keisler argued the cause for petitioners.
    Neal Kumar Katyal argued the cause for respondent Tennessee Valley Authority, supporting petitioners.
    Barbara D. Underwood argued the cause for respondents Connecticut, et al.

      Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Breyer, and Ka-gan, JJ., joined. Alito, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined. Sotomayor, J., took no part in the consideration or decision of the case.
   OPINION OF THE COURT

[564 U.S. 415]

Justice Ginsburg

delivered the opinion of the Court.

We address in this opinion the question whether the plaintiffs (several States, the city of New York, and three private land trusts) can maintain federal common-law public nuisance claims against carbon-dioxide emitters (four private power companies and the federal Tennessee Valley Authority). As relief, the plaintiffs ask for a decree setting carbon-dioxide emissions for each defendant at an initial cap, to be further reduced annually. The Clean Air Act and the Environmental Protection Agency action the Act authorizes, we hold, displace the claims the plaintiffs seek to pursue.

[564 U.S. 416]

I

In Massachusetts v. EPA, 549 U.S. 497, 127 S. Ct. 1438, 167 L. Ed. 2d 248 (2007), this Court held that the Clean Air Act, 69 Stat. 322, as amended, 42 U.S.C. § 7401 et seq., authorizes federal regulation of emissions of carbon dioxide and other greenhouse gases. “[N]aturally present in the atmosphere and . . . also emitted by human activities,” greenhouse gases are so named because they “trap . . . heat that would otherwise escape from the [Earth’s] atmosphere, and thus form the greenhouse effect that helps keep the Earth warm enough for life.” 74 Fed. Reg. 66499 (2009). Massachusetts held that the Environmental Protection Agency (EPA or Agency) had misread the Clean Air Act when it denied a rule-making petition seeking controls on greenhouse gas emissions from new motor vehicles. 549 U.S., at 510-511, 127 S. Ct. 1438, 167 L. Ed. 2d 248. Greenhouse gases, we determined, qualify as “air pollutant[s]” within the meaning of the governing Clean Air Act provision, id., at 528-529, 127 S. Ct. 1438, 167 L. Ed. 2d 248 (quoting § 7602(g)); they are therefore within EPA’s regulatory ken. Because EPA had authority to set greenhouse gas emission standards and had offered no “reasoned explanation” for failing to do so, we concluded that the Agency had not acted “in accordance with law” when it denied the requested rulemaking. Id., at 534-535, 127 S. Ct. 1438, 167 L. Ed. 2d 248 (quoting § 7607(d)(9)(A)).

Responding to our decision in Massachusetts, EPA undertook greenhouse gas regulation. In December 2009, the Agency concluded that greenhouse gas emissions from motor vehicles “cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare,” the Act’s regulatory trigger. § 7521(a)(1); 74 Fed. Reg. 66496. The Agency observed that “atmospheric greenhouse gas concentrations are now at elevated and essentially unprecedented levels,” almost entirely “due to anthropogenic

[564 U.S. 417]

emissions,” id., at 66517; mean global temperatures, the Agency continued, demonstrate an “unambiguous warming trend over the last 100 years,” and particularly “over the past 30 years,” ibid. Acknowledging that not all scientists agreed on the causes and consequences of the rise in global temperatures, id., at 66506, 66518, 66523-66524, EPA concluded that “compelling” evidence supported the “attribution of observed climate change to anthropogenic” emissions of greenhouse gases, id., at 66518. Consequent dangers of greenhouse gas emissions, EPA determined, included increases in heat-related deaths; coastal inundation and erosion caused by melting icecaps and rising sea levels; more frequent and intense hurricanes, floods, and other “extreme weather events” that cause death and destroy infrastructure; drought due to reductions in mountain snowpack and shifting precipitation patterns; destruction of ecosystems supporting animals and plants; and potentially “significant disruptions” of food production. Id., at 66524-66535.

EPA and the Department of Transportation subsequently issued a joint final rule regulating emissions from light-duty vehicles, see 75 Fed. Reg. 25324 (2010), and initiated a joint rulemaking covering medium- and heavy-duty vehicles, see id., at 74152. EPA also began phasing in requirements that new or modified “[m]ajor [greenhouse gas] emitting facilities” use the “best available control technology.” § 7475(a)(4); 75 Fed. Reg. 31520-31521. Finally, EPA commenced a rulemaking under § 111 of the Act, 42 U.S.C. § 7411, to set limits on greenhouse gas emissions from new, modified, and existing fossil-fuel fired powerplants. Pursuant to a settlement finalized in March 2011, EPA has committed to issuing a proposed rule by July 2011, and a final rule by May 2012. See

[564 U.S. 418]

75 Fed. Reg. 82392; Reply Brief for Tennessee Valley Authority 18.

II

The lawsuits we consider here began well before EPA initiated the efforts to regulate greenhouse gases just described. In July 2004, two groups of plaintiffs filed separate complaints in the Southern District of New York against the same five major electric power companies. The first group of plaintiffs included eight State and New York City, the second joined three nonprofit land trusts; both groups are respondents here. The defendants, now petitioners, are four private companie and the Tennessee Valley Authority, a federally owned corporation that operates fossil-fuel fired powerplants in several States. According to the complaints, the defendants “are the five largest emitters of carbon dioxide in the United States.” App. 57, 118. Their collective annual emissions of 650 million tons constitute 25 percent of emissions from the domestic electric power sector, 10 percent of emissions from all domestic human activities, ibid., and 2.5 percent of all anthropogenic emissions worldwide, App. to Pet. for Cert. 72a.

By contributing to global warming, the plaintiffs asserted, the defendants’ carbon-dioxide emissions created a “substantial and unreasonable interference with public rights,” in violation of the federal common law of interstate nuisance, or, in the alternative, of state tort law. App. 103-105, 145-147. The States and New York City alleged that public lands, infrastructure, and health were at risk from climate change. Id., at 88-93. The trusts urged that climate change would

[564 U.S. 419]

destroy habitats for animals and rare species of trees and plants on land the trusts owned and conserved. Id., at 139-145. All plaintiffs sought injunctive relief requiring each defendant “to cap its carbon dioxide emissions and then reduce them by a specified percentage each year for at least a decade.” Id., at 110, 153.

The District Court dismissed both suits as presenting nonjusticiable political questions, citing Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), but the Second Circuit reversed, 582 F.3d 309 (2009). On the threshold questions, the Court of Appeals held that the suits were not barred by the political question doctrine, id., at 332, and that the plaintiffs had adequately alleged Article III standing, id., at 349.

Turning to the merits, the Second Circuit held that all plaintiffs had stated a claim under the “federal common law of nuisance.” Id., at 358, 371. For this determination, the court relied dominantly on a series of this Court’s decisions holding that States may maintain suits to abate air and water pollution produced by other States or by out-of-state industry. Id., at 350-351; see, e.g., Illinois v. Milwaukee, 406 U.S. 91, 93, 92 S. Ct. 1385, 31 L. Ed. 2d 712 (1972) (Milwaukee I) (recognizing right of Illinois to sue in federal district court to abate discharge of sewage into Lake Michigan).

The Court of Appeals further determined that the Clean Air Act did not “displace” federal common law. In Milwaukee v. Illinois, 451 U.S. 304, 316-319, 101 S. Ct. 1784, 68 L. Ed. 2d 114 (1981) (Milwaukee II), this Court held that Congress had displaced the federal commonlaw right of action recognized in Milwaukee I by adopting amendments to the Clean Water Act, 33 U.S.C. § 1251 et seq. That legislation installed an all-encompassing regulatory program, supervised by an expert administrative agency, to deal comprehensively with interstate water pollution. The legislation itself prohibited the discharge of pollutants into the waters of the United States without a permit from a proper permitting authority. Milwaukee II, 451 U.S., at 310-311, 101 S. Ct. 1784, 68 L. Ed. 2d 114 (citing § 1311). At the time of the Second

[564 U.S. 420]

Circuit’s decision, by contrast, EPA had not yet promulgated any rule regulating greenhouse gases, a fact the court thought dispositive. 582 F.3d, at 379-381. “Until EPA completes the rulemaking process,” the court reasoned, “we cannot speculate as to whether the hypothetical regulation of greenhouse gases under the Clean Air Act would in fact ‘spea[k] directly’ to the ‘particular issue’ raised here by Plaintiffs.” Id., at 380.

We granted certiorari. 562 U.S. 1091, 131 S. Ct. 813, 178 L. Ed. 2d 530 (2010).

III

The petitioners contend that the federal courts lack authority to adjudicate this case. Four Members of the Court would hold that at least some plaintiffs have Article III standing under Massachusetts, which permitted a State to challenge EPA’s refusal to regulate greenhouse gas emissions, 549 U.S., at 520-526, 127 S. Ct. 1438, 167 L. Ed. 248; and, further, that no other threshold obstacle bars review. Four Members of the Court, adhering to a dissenting opinion in Massachusetts, id., at 535, 127 S. Ct. 1438, 167 L. Ed. 248 (opinion of Roberts, C. J.), or regarding that decision as distinguishable, would hold that none of the plaintiffs have Article III standing. We therefore affirm, by an equally divided Court, the Second Circuit’s exercise of jurisdiction and proceed to the merits. See Nye v. United States, 313 U.S. 33, 44, 61 S. Ct. 810, 85 L. Ed. 1172 (1941).

IV

A

“There is no federal general common law,” Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), famously recognized. In the wake of Ene, however, a keener understanding developed.

[564 U.S. 421]

See generally Friendly, In Praise of Erie—And of the New Federal Common Law, 39 N. Y. U. L. Rev. 383 (1964). Erie “le[ft] to the states what ought be left to them,” 39 N. Y. U. L. Rev., at 405, and thus required “federal courts [to] follow state decisions on matters of substantive law appropriately cognizable by the states,” id., at 422. Erie also sparked “the emergence of a federal decisional law in areas of national concern.” 39 N. Y. U. L. Rev., at 405. The “new” federal common law addresses “subjects within national legislative power where Congress has so directed” or where the basic scheme of the Constitution so demands. Id., at 408, n. 119, 421-422. Environmental protection is undoubtedly an area “within national legislative power,” one in which federal courts may fill in “statutory interstices,” and, if necessary, even “fashion federal law.”Id., at 421-422. As the Court stated in Milwaukee I: “When we deal with air and water in their ambient or interstate aspects, there is a federal common law.” 406 U.S., at 103, 92 S. Ct. 1385, 31 L. Ed. 2d 712.

Decisions of this Court predating Ene, but compatible with the distinction emerging from that decision between “general common law” and “specialized federal common law,” Friendly, supra, at 405, have approved federal common-law suits brought by one State to abate pollution emanating from another State. See, e.g., Missouri v. Illinois, 180 U.S. 208, 241-243, 21 S. Ct. 331, 45 L. Ed. 497 (1901) (permitting suit by Missouri to enjoin Chicago from discharging untreated sewage into interstate waters); New Jersey v. City of New York, 283 U.S. 473, 477, 481-483, 51 S. Ct. 519, 75 L. Ed. 1176 (1931) (ordering New York City to stop dumping garbage off New Jersey coast); Georgia v. Tennessee Copper Co., 240 U.S. 650, 36 S. Ct. 465, 60 L. Ed. 846 (1916) (ordering private copper companies to curtail sulfur-dioxide discharges in Tennessee that caused harm in Georgia). See also Milwaukee I, 406 U.S., at 107, 92 S. Ct. 1385, 31 L. Ed. 2d 712 (post-Erie decision upholding suit by Illinois to abate sewage discharges into Lake Michigan). The plaintiffs contend that their right to maintain this suit follows inexorably from that line of decisions.

[564 U.S. 422]

Recognition that a subject is meet for federal law governance, however, does not necessarily mean that federal courts should create the controlling law. Absent a demonstrated need for a federal rule of decision, the Court has taken “the prudent course” of “adopt[ing] the readymade body of state law as the federal rule of decision until Congress strikes a different accommodation.” United States v. Kimbell Foods, Inc., 440 U.S. 715, 740, 99 S. Ct. 1448, 59 L. Ed. 2d 711 (1979); see Bank of America Nat. Trust & Sav. Assn. v. Parnell, 352 U.S. 29, 32-34, 77 S. Ct. 119, 1 L. Ed. 2d 93 (1956). And where, as here, borrowing the law of a particular State would be inappropriate, the Court remains mindful that it does not have creative power akin to that vested in Congress. See Missouri v. Illinois, 200 U.S. 496, 519, 26 S. Ct. 268, 50 L. Ed. 572 (1906) (“fact that this court must decide does not mean, of course, that it takes the place of a legislature”); cf. United States v. Standard Oil Co. of Cal., 332 U.S. 301, 308, 314, 67 S. Ct. 1604, 91 L. Ed. 2067 (1947) (holding that federal law determines whether Government could secure indemnity from a company whose truck injured a United States soldier, but declining to impose such an indemnity absent action by Congress, “the primary and most often the exclusive arbiter of federal fiscal affairs”).

In the cases on which the plaintiffs heavily rely, States were permitted to sue to challenge activity harmful to their citizens’ health and welfare. We have not yet decided whether private citizens (here, the land trusts) or political subdivisions (New York City) of a State may invoke the federal common law of nuisance to abate out-of-state pollution. Nor have we ever held that a State may sue to abate any and all manner of pollution originating outside its borders.

The defendants argue that considerations of scale and complexity distinguish global warming from the more bounded pollution giving rise to past federal nuisance suits. Greenhouse gases once emitted “become well mixed in the atmosphere,” 74 Fed. Reg. 66514; emissions in New Jersey may contribute no more to flooding in New York than emissions in China. Cf. Brief for Petitioners 18-19. The plaintiffs, on

[564 U.S. 423]

the other hand, contend that an equitable remedy against the largest emitters of carbon dioxide in the United States is in order and not beyond judicial competence. See Brief for Respondent Open Space Institute et al. 32-35. And we have recognized that public nuisance law, like common law generally, adapts to changing scientific and factual circumstances. Missouri, 200 U.S., at 522, 26 S. Ct. 268, 50 L. Ed. 572 (adjudicating claim though it did not concern “nuisance of the simple kind that was known to the older common law”); see also D’Oench, Duhme & Co. v. FDIC, 315 U.S. 447, 472, 62 S. Ct. 676, 86 L. Ed. 956 (1942) (Jackson, J., concurring) (“federal courts are free to apply the traditional common-law technique of decision” when fashioning federal common law).

We need not address the parties’ dispute in this regard. For it is an academic question whether, in the absence of the Clean Air Act and the EPA actions the Act authorizes, the plaintiffs could state a federal common-law claim for curtailment of greenhouse gas emissions because of their contribution to global warming. Any such claim would be displaced by the federal legislation authorizing EPA to regulate carbon-dioxide emissions.

B

“[W]hen Congress addresses a question previously governed by a decision rested on federal common law,” the Court has explained, “the need for such an unusual exercise of lawmaking by federal courts disappears.” Milwaukee II, 451 U.S., at 314, 101 S. Ct. 1784, 68 L. Ed. 2d 114 (holding that amendments to the Clean Water Act displaced the nuisance claim recognized in Milwaukee I). Legislative displacement of federal common law does not require the “same sort of evidence of a clear and manifest [congressional] purpose” demanded for preemption of state law. 451 U.S., at 317, 101 S. Ct. 1784, 68 L. Ed. 2d 114. “‘[D]ue regard for the presuppositions of our embracing federal system ... as a promoter of democracy,’ ” id., at 316, 101 S. Ct. 1784, 68 L. Ed. 2d 114 (quoting San Diego Building Trades Council v. Garmon, 359 U.S. 236, 243, 79 S. Ct. 773, 3 L. Ed. 2d 775 (1959)), does not enter the calculus, for it is primarily the office of

[564 U.S. 424]

Congress, not the federal courts, to prescribe national policy in areas of special federal interest, TVA v. Hill, 437 U.S. 153, 194, 98 S. Ct. 2279, 57 L. Ed. 2d 117 (1978). The 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. Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625, 98 S. Ct. 2010, 56 L. Ed. 2d 581 (1978); see Milwaukee II, 451 U.S., at 315, 101 S. Ct. 1784, 68 L. Ed. 2d 114; County of Oneida v. Oneida Indian Nation of N. Y., 470 U.S. 226, 236-237, 105 S. Ct. 1245, 84 L. Ed. 2d 169 (1985).

We hold that the Clean Air Act and the EPA actions it authorizes displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power-plants. Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act. 549 U.S., at 528-529, 127 S. Ct. 1438, 167 L. Ed. 2d 248. And we think it equally plain that the Act “speaks directly” to emissions of carbon dioxide from the defendants’ plants.

Section 111 of the Act directs the EPA Administrator to list “categories of stationary sources” that “in [her] judgment . . . caus[e], or contribute] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” § 7411(b)(1)(A). Once EPA lists a category, the Agency must establish standards of performance for emission of pollutants from new or modified sources within that category. § 7411(b)(1)(B); see also § 7411(a)(2). And, most relevant here, § 7411(d) then requires regulation of existing sources within the same category. For existing sources, EPAissues emissions guidelines, see 40 CFR §§ 60.22, 60.23 (2009); in compliance with those guidelines and subject to federal oversight, the States then issue performance standards for stationary sources within their jurisdiction, § 7411(d)(1).

[564 U.S. 425]

The Act provides multiple avenues for enforcement. See County of Oneida, 470 U.S., at 237-239, 105 S. Ct. 1245, 84 L. Ed. 2d 169 (reach of remedial provisions is important to determination whether statute displaces federal common law). EPA may delegate implementation and enforcement authority to the States, §§ 7411(c)(1), (d)(1), but the Agency retains the power to inspect and monitor regulated sources, to impose administrative penalties for noncompliance, and to commence civil actions against polluters in federal court. §§ 7411(c)(2), (d)(2), 7413, 7414. In specified circumstances, the Act imposes criminal penalties on any person who knowingly violates emissions standards issued under § 7411. See § 7413(c). And the Act provides for private enforcement. If States (or EPA) fail to enforce emissions limits against regulated sources, the Act permits “any person” to bring a civil enforcement action in federal court. § 7604(a).

If EPA does not set emissions limits for a particular pollutant or source of pollution, States and private parties may petition for a rulemaking on the matter, and EPA’s response will be reviewable in federal court. See § 7607(b)(1); Massachusetts, 549 U.S., at 516-517, 529, 127 S. Ct. 1438, 167 L. Ed. 2d 248. As earlier noted, see supra, at 417-418, 180 L. Ed. 2d, at 443, EPA is currently engaged in a § 7411 rulemaking to set standards for greenhouse gas emissions from fossil-fuel fired powerplants. To settle litigation brought under § 7607(b) by a group that included the majority of the plaintiffs in this very case, the Agency agreed to complete that rule-making by May 2012. 75 Fed. Reg. 82392. The Act itself thus provides a means to seek limits on emissions of carbon dioxide from domestic power-plants—the same relief the plaintiffs seek by invoking federal common law. We see no room for a parallel track.

C

The plaintiffs argue, as the Second Circuit held, that federal common law is not displaced until EPA actually exercises its regulatory authority, i.e., until it sets standards

[564 U.S. 426]

governing emissions from the defendants’ plants. We disagree.

The sewage discharges at issue in Milwaukee II, we do not overlook, were subject to effluent limits set by EPA; under the displacing statute, “[e]very point source discharge” of water pollution was “prohibited unless covered by a permit.” 451 U.S., at 318-320, 101 S. Ct. 1784, 68 L. Ed. 2d 114 (emphasis deleted). As Milwaukee II made clear, however, the relevant question for purposes of displacement is “whether the field has been occupied, not whether it has been occupied in a particular manner.” Id., at 324, 101 S. Ct. 1784, 68 L. Ed. 2d 114. Of necessity, Congress selects different regulatory regimes to address different problems. Congress could hardly preemptively prohibit every discharge of carbon dioxide unless covered by a permit. After all, we each emit carbon dioxide merely by breathing.

The Clean Air Act is no less an exercise of the Legislature’s “considered judgment” concerning the regulation of air pollution because it permits emissions until EPA acts. See Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U.S. 1, 22, n. 32, 101 S. Ct. 2615, 69 L. Ed. 2d 435 (1981) (finding displacement although Congress “allowed some continued dumping of sludge” prior to a certain date). The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from powerplants; the delegation is what displaces federal common law. Indeed, were EPA to decline to regulate carbon-dioxide emissions altogether at the conclusion of its ongoing § 7411 rulemaking, the federal courts would have no warrant to employ the federal common law of nuisance to upset the Agency’s expert determination.

EPA’s judgment, we hasten to add, would not escape judicial review. Federal courts, we earlier observed, see supra, at 425, 180 L. Ed. 2d, at 448, can review agency action (or a final rule declining to take action) to ensure compliance with the statute Congress enacted. As we have noted, see supra, at 424, 180 L. Ed. 2d, at 447, the Clean Air Act directs EPA to establish emissions standards for categories of stationary sources that, “in [the Administrator’s] judgment,”

[564 U.S. 427]

“caus[e], or contribuí[e] significantly to, air pollution which may reasonably be anticipated to endanger public health or welfare.” § 7411(b)(1)(A). “[T]he use of the word judgment,’ ” we explained in Massachusetts, “is not a roving license to ignore the statutory text.” 549 U.S., at 533, 127 S. Ct. 1438, 167 L. Ed. 248. “It is but a direction to exercise discretion within defined statutory limits.” Ibid. EPA may not decline to regulate carbon-dioxide emissions from powerplants if refusal to act would be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” § 7607(d)(9)(A). If the plaintiffs in this case are dissatisfied with the outcome of EPA’s forthcoming rule-making, their recourse under federal law is to seek Court of Appeals review, and, ultimately, to petition for certiorari in this Court.

Indeed, this prescribed order of decisionmaking—the first decider under the Act is the expert administrative agency, the second, federal judges—is yet another reason to resist setting emissions standards by judicial decree under federal tort law. The appropriate amount of regulation in any particular greenhouse gas-producing sector cannot be prescribed in a vacuum: As with other questions of national or international policy, informed assessment of competing interests is required. Along with the environmental benefit potentially achievable, our Nation’s energy needs and the possibility of economic disruption must weigh in the balance.

The Clean Air Act entrusts such complex balancing to EPA in the first instance, in combination with state regulators. Each “standard of performance” EPA sets must “tak[e] into account the cost of achieving [emissions] reduction and any nonair quality health and environmental impact and energy requirements.” §§ 7411(a)(1), (b)(1)(B), (d)(1); see also 40 CFR § 60.24(f) (EPA may permit state plans to deviate from generally applicable emissions standards upon demonstration that costs are “[u]n-reasonable”). EPA may “distinguish among classes, types, and sizes” of stationary sources in apportioning responsibility for emissions reductions.

[564 U.S. 428]

§§ 7411(b)(2), (d); see also 40 CFR § 60.22(b)(5). And the Agency may waive compliance with emission limits to permit a facility to test drive an “innovative technological system” that has “not [yet] been adequately demonstrated.” § 7411(j)(l)(A). The Act envisions extensive cooperation between federal and state authorities, see, §§ 7401(a), (b), generally permitting each State to take the first cut at determining how best to achieve EPA emissions standards within its domain, see §§ 7411(c)(1), (d)(1)—(2).

It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. See generally Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 865-866, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present. Moreover, federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court.

Notwithstanding these disabilities, the plaintiffs propose that individual federal judges determine, in the first instance, what amount of carbon-dioxide emissions is “unreasonable,” App. 103, 145, and then decide what level of reduction is “practical, feasible and economically viable,” id., at 58, 119. These determinations would be made for the defendants named in the two lawsuits launched by the plaintiffs. Similar suits could be mounted, counsel for the States and New York City estimated, against “thousands or hundreds or tens” of other defendants fitting the description

[564 U.S. 429]

“large contributors” to carbon-dioxide emissions. Tr. of Oral Arg. 57.

The judgments the plaintiffs would commit to federal judges, in suits that could be filed in any federal district, cannot be reconciled with the deci-sionmaking scheme Congress enacted. The Second Circuit erred, we hold, in ruling that federal judges may set limits on greenhouse gas emissions in face of a law empowering EPA to set the same limits, subject to judicial review only to ensure against action “arbitrary, capricious, ... or otherwise not in accordance with law.” § 7607(d)(9).

V

The plaintiffs also sought relief under state law, in particular, the law of each State where the defendants operate powerplants. See App. 105, 147. The Second Circuit did not reach the state-law claims because it held that federal common law governed. 582 F.3d, at 392; see International Paper Co. v. Ouellette, 479 U.S. 481, 488, 107 S. Ct. 805, 93 L. Ed. 2d 883 (1987) (if a case “should be resolved by reference to federal common law[,] . . . state common law [is] pre-empted”). In light of our holding that the Clean Air Act displaces federal common law, the availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the federal Act. Id., at 489, 491, 497, 107 S. Ct. 805, 93 L. Ed. 883 (holding that the Clean Water Act does not preclude aggrieved individuals from bringing a “nuisance claim pursuant to the law of the source State”). None of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand.

For the reasons stated, we reverse the judgment of the Second Circuit and remand the case for further proceedings consistent with this opinion.

It is so ordered.

Justice Sotomayor took no part in the consideration or decision of this case.

SEPARATE OPINION

[564 U.S. 430]

Justice Alito,

with whom Justice Thomas joins, concurring in part and concurring in the judgment.

I concur in the judgment, and I agree with the Court’s displacement analysis on the assumption (which I make for the sake of argument because no party contends otherwise) that the interpretation of the Clean Air Act, 42 U.S.C. § 7401 et seq., adopted by the majority in Massachusetts v. EPA, 549 U.S. 497, 127 S. Ct. 1438, 167 L. Ed. 2d 248 (2007), is correct.

      . In addition to carbon dioxide, the primary greenhouse gases emitted by human activities include methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride. 74 Fed. Reg. 66499.

      . For views opposing EPA’s, see, e.g., Dawidoff, The Civil Heretic, N. Y. Times Magazine, Mar. 29, 2009, p. 32. The Court, we caution, endorses no particular view of the complicated issues related to carbon-dioxide emissions and climate change.

      . California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin, although New Jersey and Wisconsin are no longer participating. Brief for Respondent Connecticut et al. 3, n. 1.

      . Open Space Institute, Inc., Open Space Conservancy, Inc., and Audubon Society of New Hampshire.

      . American Electric Power Company, Inc. (and a wholly owned subsidiary), Southern Company, Xcel Energy Inc., and Cinergy Corporation.

      . In addition to renewing the political question argument made below, the petitioners now assert an additional threshold obstacle: They seek dismissal because of a “prudential” bar to the adjudication of generalized grievances, purportedly distinct from Article Ill’s bar. See Brief for Tennessee Valley Authority 14-24; Brief for Petitioners 30-31.

      . There is an exception: EPA may not employ § 7411(d) if existing stationary sources of the pollutant in question are regulated under the national ambient air quality standard program, §§ 7408-7410, or the “hazardous air pollutants’’ program, § 7412. See § 7411(d)(1).