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American Electric Power Co., Inc. v. Connecticut
What’s at stake?
Stopping corporate polluters from emitting harmful greenhouse gases.
Whether states and private parties can sue utility companies under federal common law to cap global warming emissions.
June 20, 2011
8-0 in favor of American Electric. Justice Ginsburg delivered the opinion of the Court. Justice Alito filed a partial concurrence and a concurrence in the judgment, which Justice Thomas joined. Justice Sotomayor recused.
What the court held:
This case was brought by eight states, the City of New York, and three private land trusts against the nation’s five largest carbon dioxide polluters under the federal common law of nuisance, seeking to force them to cap and reduce their greenhouse gas emissions. The Second Circuit denied a motion to dismiss, allowing the case to move forward.
The Supreme Court held that plaintiffs could not proceed under federal common law because the Clean Air Act delegates the federal role in managing greenhouse gas emissions to the Environmental Protection Agency (EPA). There is no room for parallel action under federal common law. Another reason to defer to agency action, the Court held, is that the agency is better equipped than federal judges to decide how strictly to regulate emissions.
The Court noted that plaintiffs may not be without recourse. “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.” Further, “[i]f the plaintiffs in this case are dissatisfied with the outcome of EPA’s forthcoming rulemaking, their recourse under federal law is to seek Court of Appeals review, and, ultimately, to petition for certiorari in this Court.”
The plaintiffs also brought suit under state nuisance law but the courts below did not analyze whether or not the Clean Air Act would preempt state nuisance law. It is an easier threshold to displace federal common law when a federal agency has been delegated responsibility over the general area at issue. The Court remanded for consideration of this issue.
This case was filed before the Supreme Court decided 5-4 in Massachusetts v. EPA that EPA was obligated under the Clean Air Act to regulate greenhouse gasses. It is a setback for states using the option of federal common law, but it says nothing about the ability of states to use their own public nuisance laws to curb environmental harms. Our own report on the case, Billionaires Behind the Curtain, focuses on the role the Koch brothers have played in financing groups who weighed in on behalf of American Electric Power and the other polluter defendants.
- AFJ Special Report: Billionaires Behind the Curtain
- Slate: Can federal courts help tackle global warming?
- Environment News Service: U.S. Supreme Court to Rule in Key Greenhouse Gas Lawsuit
- Grist: Connecticut v. AEP: Public nuisance ruling may boost chances of EPA CO2 regulations
- ACSBlog: The “Good” and the “Ugly” Implications of SCOTUS’s Climate Change Ruling
- Brief of Petitioners American Electric Inc. et al.
- Brief of the Tennessee Valley Authority as Respondent Supporting Petitioner
- Brief for Respondents Connecticut, New York, California, Iowa, Rhode Island, Vermont, and The City of New York
- Brief for the Chamber of Commerce of the United States of America in Support of Petitioner
- Brief for the National Association of Home Builders in Support of Petitioner
- Brief for the Business Roundtable in Support of Petitioner
- Brief for the Edison Electric Institute, American Public Power Association, and National Rural Electric Cooperative Association in Support of Petitioner
- Brief for the Association of Global Automakers, the Alliance of Automobile Manufacturers, and the National Automobile Dealers Association in Support of Petitioner
- Brief for the Center for Constitutional Jurisprudence in Support of Petitioner
- Brief for Law Professors in Support of Petitioner
- Brief for Consumer Energy Alliance, NATSO, Inc., American Trucking Associations, Petroleum Marketers Association of America, Energy Corporation, and International Liquid Terminals Association in Support of Petitioners
- Brief for CATO Institute in Support of Petitioner
- Brief for Nicholas Johnson in Support of Petitioner
- Brief for the American Chemistry Council, American Coatings Association, National Association of Manufacturers, Property Casualty Insurers Association of America, and Public Nuisance Fairness Coalition in Support of Petitioner
- Brief for the States of Indiana, Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Missouri, Nebraska, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Utah, West Virginia, and Wyoming in Support of Petitioner
- Brief for American Petroleum Institute and National Petrochemical and Refiners Association in Support of Petitioner
- Brief for National Federation of Independent Business Small Business Legal Center, American Tort Reform Association, and Croplife in Support of Petitioner
- Brief for Chevron U.S.A. Inc., Shell Oil Company, ConocoPhillips, E.I. Du Pont De Nemours and Company, and Edison International in Support of Petitioner
- Brief for the American Farm Bureau Federation and National Mining Association in Support of Petitioner
- Brief for the Washington Legal Foundation in Support of Petitioner
- Brief for the Pacific Legal Foundation in Support of Petitioner
- Brief for DRI—The Voice of the Defense Bar in Support of Petitioner
- Brief for the Southeastern Legal Foundation, Inc., Ross McKitrick, Ph.D., Laurence I. Gould, Ph.D., and Patrick J. Michaels, Ph.D. in Support of Petitioner
- Brief for Mountain States Legal Foundation in Support of Petitioners
- Brief for Representative Fred Upton, Representative Ed Whitfield, and Senator James M. Inhofe in Support of Petitioner
- Brief for the National Black Chamber of Commerce and Affordable Power Alliance in Support of Petitioner
- Brief for Open Space Institute, Inc., Open Space Conservancy, Inc., and Audubon Society of New Hampshire in Support of Respondent
- Brief for Law Professors in Support of Respondent
- Brief for Allearth Renewables, Inc., Namasté Solar, Petersendean, Inc., Revision Energy, and Westinghouse Solar in Support of Respondent
- Brief for the Open Space Institute, Inc., and the Open Space Conservatory, Inc., and Audubon Society of New Hampshire in Support of Respondent
- Brief for the States of North Carolina, Illinois, Maryland, and Massachusetts in Support of Respondents
- Brief for Defenders of Wildlife, the Center for Biological Diversity, and the National Wildlife Federation in Support of Respondent
- Brief for Environmental Law Professors in Support of Respondent
- Brief for Tort Law Scholars in Support of Respondent
- Brief for Unitarian Universalist Association; the Shalom Center; the Province of the Immaculate Conception of the Congregation of the Missionary Sisters of the Immaculate Conception; the New Evangelical Partnership for the Common Good; the National Catholic Rural Life Conference; the Missionary Oblates of Mary Immaculate; Maryknoll Office for Global Concerns; the Jewish Reconstructionist Federation; Interfaith Power and Light; General Synod of the United Church of Christ; the Franciscan Action Network; the Columban Center for Advocacy and Outreach; and Church World Service in Support of Respondents and Urging Affirmance
- Brief for James G. Anderson, Ph.D., David Archer, Ph.D., David S. Battisti, Ph.D., Michael L. Bender, Ph.D., Mark A. Cane, Ph.D., Peter B. DeMenocal, Ph.D., Kerry A. Emanuel, Ph.D., Inez Y. Fung, Sc.D., Peter Huybers, Ph.D., Ralph F. Keeling, Ph.D., Mario J. Molina, Ph.D., Raymond T. Pierrehumbert, Ph.D., Daniel P. Schrag, Ph.D., and Steven C. Wofsy, Ph.D., in Support of Respondent
- Brief for the North Coast Rivers Alliance, Desert Protection Society, the California Sportsfishing Protection Alliance, and Klamath Forest Alliance in Support of Respondent