Today, the US Supreme Court reversed the
groundbreaking decision, Connecticut v. American Power,
which had allowed states, New York City and private land trusts to
sue major greenhouse gas producers in nuisance, whether or not
their emissions breached federal statute law.
The Court held that all federal common-law rights to seek
abatement of carbon-dioxide emissions from fossil-fuel fired power
plants were "displaced" by the federal Clean Air
Act and actions that the Environmental Protection Agency can
take under that statute. Specifically, the Court stated the
displacement test as simply "whether the statute speaks
directly to the question at issue," and that in this case,
Massachusetts v. EPA had made clear that emissions of
carbon dioxide qualify as air pollution subject to the CAA.
The Court found that the CAA Section 111 direction to EPA to
establish emission standards for categories of stationary sources,
and EPA's listing of the fossil-fuel fired power plant
category, is enough to create carbon dioxide emission limits,
leaving "no room for a parallel track" via federal common
law. The Court rejected the argument (and the Second Circuit's
holding) that federal common law is not displaced until EPA
actually exercises its regulatory authority in adopting
Although the main decision was unanimous, the court split 4-4 on
whether the issue was justiciable, i.e. suitable for decision in
"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; and
further, that no other threshold obstacle bars review. Four members
of the court, adhering to a dissenting opinion in
Massachusetts, 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."
Though unnamed, the four justices who found the case justiciable
must be Ginsburg, Breyer, Kagan and Kennedy. Unsurprisingly, the
four opposed are Roberts, Scalia, Thomas and Alito. Sotomayor was
recused because she was on the Second Circuit panel in the AEP
case; thus, in a future case, there could be a 5-4 majority to
allow climate change nuisance litigation, but for the Clean Air Act
Canada does not have such a clear displacement rule, but to date
Canadian courts have ducked climate change litigation, holding it
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