American Electric Power Co., Inc. v. Connecticut

What’s at stake?
Stopping corporate polluters from emitting harmful greenhouse gases.

Issue:
Whether states and private parties can sue utility companies under federal common law to cap global warming emissions.  

Decision date:
June 20, 2011

Outcome:
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.   

Learn more: 

 

Merit briefs:

 

Amicus briefs: