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To plaintiffs, it must have seemed at the time like a good idea. In 2004, eight states and three land trusts sued five of the largest electric utilities in the nation. The suits asserted that through the greenhouse gas (GHG) emissions from their coal-fired power plants and the climate change to which those emissions allegedly contributed, the utilities were causing a public nuisance under federal and state common law. The suits sought abatement in the form of unspecified court-ordered reductions in the quantity of GHGs emitted
In 2010, however, things looked different. In American Electric Power v. Connecticut, the Supreme Court unanimously held on June 20 that a 2007 decision of the Court had displaced any role for the federal common law of nuisance as applied to GHG emissions, at least with respect to “stationary sources” of such emissions such as those involved in the suit.1 The 2007 decision, the Court’s only other decision on climate change, came in Massachusetts v. EPA,2 declaring that the Clean Air Act authorizes EPA to regulate GHGs as air pollutants. Using this authority, EPA had proceeded in 2010 to promulgate GHG emission standards for cars and light-duty trucks, with standards for electric power plants promised by 2012. Congress having occupied the area, the Court said, the ability of federal district court judges to fashion common law remedies was displaced.
Significant for applying the holding elsewhere, the Court made clear that displacement does not depend on the agency (here, EPA) actually exercising its regulatory authority. “The test,” said the Court, “is simply whether the statute speaks directly to the question at issue.” Otherwise put, the point is that “Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law.” This raises the tantalizing question whether, if current congressional efforts to divest EPA of its GHG-regulating authority are successful, the federal common law of nuisance in this area would be revived. It would seem so.
American Electric Power has to be understood in context. In 2004 when the case was filed, those seeking federal legislation to deal with climate change were becoming increasingly pessimistic. Accordingly, they pursued other legal avenues as well: international forums, treaty negotiations, EPA action under the Clean Air Act, and state and regional efforts. Five cases invoking the federal common law of nuisance were filed around this time, of which Connecticut v. American Electric Power, as it was then styled, was one. Like some of the other cases, Connecticut was dismissed by the district court on political question grounds, but on appeal the Second Circuit found no political question, and also rejected any standing or displacement of federal common law threshold issues.3 In addition to its unanimous displacement holding, the Supreme Court affirmed 4-4 the Second Circuit’s ruling on standing (Justice Sotomayor recused herself) – resurrecting the Court’s deep divide on this issue in Massachusetts.
The Court’s ruling means that the case returns to the district court stripped of its federal common law claim. Whether the district court will retain supplemental jurisdiction over the state common law claims in the case is unclear. Either way, the Supreme Court decision offers something for each side. Environmentalists can revel in the Court’s unanimous reaffirmation of Massachusetts’ endorsement of EPA authority over GHGs, and the absence of any holding by the conservative justices narrowing standing. The utilities, for their part, can point to the elimination of a potentially vexing source of GHG regulation through multiple private lawsuits.
ENDNOTES
1. 2011 WL 2437011 (No. 10-174).
2. 549 U.S. 497 (2007).
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