On June 20, 2011, the United States Supreme Court handed down its 8-0 decision in American Electric Power Co., Inc., et al. v. Connecticut, et al., No. 10-174. In an Opinion written by Justice Ginsburg, the Supreme Court decided that federal common law public nuisance claims could not be maintained against carbon-dioxide and greenhouse gas (GHG) emitting entities. The Court held that such claims were barred because the federal Clean Air Act (Act) displaces such common law nuisance claims. The Court found that Congress had entrusted the United States Environmental Protection Agency (EPA) to decide how GHGs should be regulated, and that federal courts are not entitled to issue their own rules.
The plaintiffs in this case (several states, New York City, and
three private land trusts) had brought public nuisance claims
against entities that emitted large amounts of carbon dioxide (four
private power companies and the Tennessee Valley Authority). The
plaintiffs had requested abatement of the alleged nuisance
conditions by a decree setting carbon-dioxide emission limits for
each defendant at an initial cap, to be further reduced
annually.
The District Court had dismissed the suit as presenting a
non-justiciable political question, but the Second Circuit had
reversed, finding that the State plaintiffs had adequately alleged
Article III standing and that the suits were not barred by the
political question doctrine.
Initially, the Supreme Court affirmed the Second Circuit's
exercise of federal court jurisdiction by an equally divided court.
Four members of the Court held that at least some plaintiffs have
Article III standing under the Court's prior holding in
Massachusetts v. EPA, 549 U.S. 497 (2007), which permitted
a State to challenge EPA's refusal to regulate greenhouse gas
emissions. The other four members of the Court held that none of
the plaintiffs have Article III standing. Therefore, the Court
affirmed the Second Circuit's exercise of jurisdiction.
However, the Court then held unanimously that the
plaintiffs could not state a federal common law claim for
curtailment of GHG emissions because of their alleged contribution
to global warming because the Act as implemented by EPA displaces
any federal common law right to seek abatement of carbon dioxide
emissions from fossil-fuel fired power plants. The Court
noted that the test was whether the Act spoke directly to the
question at issue. Here, the previous Massachusetts case made it
clear that emissions of carbon dioxide are subject to regulation
under the Act. Because the Act directs EPA to establish emissions
standards and performance standards, and provides for enforcement
of those standards, the Act itself provides a means to seek limits
on emissions of carbon dioxide from domestic power plants
– the same relief that the plaintiffs sought by invoking
federal common law. Accordingly, the Court held that the Act
displaced federal common law nuisance claims—at least
where the relief requested is abatement.
In reversing the Second Circuit, the Supreme Court held that the
federal common law claims had been replaced by the Clean Air Act
despite the fact that EPA has not yet issued emission
standards for GHGs. The Court reasoned that because
the Act sets into place the procedures for EPA to promulgate GHG
standards as well as the procedures for judicial coercion if EPA
does not, is ample evidence that Congress has "occupied the
field" and the use of federal common-law should be foreclosed.
The Court further explained that courts setting emission standards
with judicial decrees was inappropriate given that experts at EPA
are more qualified to develop and promulgate standards given their
knowledge of science, economics and technological resources. How
this decision impacts Congress and EPA regulation of GHGs also will
be very important to follow in the coming months.
As to the future of climate change-related litigation, some have speculated that the Supreme Court's decision preventing the AEP case from going forward will put an end to climate change-related tort litigation. Others have opined that this outcome is only a temporary setback, and additional legal theories will be developed and tested. The Supreme Court specifically did not decide whether the Act preempts state public nuisance litigation over GHGs. Thus, some plaintiff groups likely will press state common law claims in the future, but may still be met with defenses of "political question" and "preemption" based on the AEP case and other precedent. The implications of this decision on other environmental "toxic tort" litigation where there are statutory programs addressing the contested conduct also will be important to watch.
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