Megan Sigur

December 11, 2010

This past Monday, the Supreme Court granted certiorari on American Electric Power v. Connecticut. The case was on petition for writ of certiorari from the Second Circuit Court of Appeals and could pose serious implications for the future of greenhouse gas regulations. However, given the makeup of the Court, Justice Sotomayor's possible recusal, and the multiple ways the Court can rule against Respondents, we probably shouldn't expect another Massachusetts v. EPA decision.

This case originated in the United States District Court for the Southern District of New York. It was a public nuisance suit filed in 2004 by New York City and eight states, including New York, Connecticut, and Vermont. The suit alleged that utility companies, such as American Electric Power (AEP), posed a public nuisance by emitting green house gases and sought an injunction to set a cap for emissions. The District Court dismissed the suit, citing political question doctrine. The plaintiffs appealed to the Second Circuit. The Second Circuit vacated the District Court judgment and remanded the case for further proceedings, ruling that plaintiffs' claims do not present a non-justiciable political question, plaintiffs have standing, and plaintiffs' claims are proper under the federal common law of nuisance. The defendants appealed.

The case is rife with opportunities for Petitioners to prevail. The Court may hold that the Respondents lacked standing to bring this suit because they have alleged a generalized grievance, which is not allowed by the doctrine of prudential standing. This is one argument the federal government proffered in the Tennessee Valley Authority's Brief in Support of Petitioners. Regarding the merits of the case, the Court may hold that the federal nuisance claim has been "displaced" by the Clean Air Act and other EPA regulatory actions.

The newly released CAA regulations add another wrinkle to this case. While the petition for certiorari was awaiting a decision, the EPA approved regulations on greenhouse gases in late October of this year. The Court could remand the case to be reexamined in light of the new regulations.

Yet another issue is the possibility that Justice Sotomayor will recuse herself from taking part in this case. Justice Sotomayor sat on the Second Circuit panel when the Second Circuit heard this case, though she took no part in the ruling. If Justice Kennedy sides with the more liberal members of the Court, as he did in Massachusetts v. EPA, it could result in a 4-4 split, which would affirm the Second Circuit decision. However, the decision would not be binding on the other circuit courts.

This case has important implications in the field of environmental law. The downside is that it could result in a patchwork system of regulation, with standards varying widely by state. However, if the Supreme Court upholds the Second Circuit decision, it could spur Congress into taking action on climate change. Despite all the opportunities for the Court to overturn the Second Circuit, one thing is certain; AEP v. Connecticut places global warming squarely in the public conscience at a time when it has become increasingly clear that Congress is not going to take up this issue any time soon.

Sources:

Petition for Writ of Certiorari, Amer. Elec. Power Co., v. Conn. (Aug. 4, 2010) (No. 10-174).

Brief for the Tennessee Valley Authority in Support of Petitioners at 11, Amer. Elec. Power Co., v. Conn., No. 10-174 (Aug. 24, 2010).

Connecticut v. Am. Elec. Power Co., 582 F.3d 309, 392–93 (2d Cir. 2009).

Ann Carlson, U.S. Supreme Court to Hear Climate Change Nuisance Case, Legal Planet: The Environmental Law & Policy Blog, Dec. 6, 2010, http://legalplanet.wordpress.com/2010/12/06/u-s-supreme-court-to-hear-climate-change-nuisance-case/.

Lawrence Hurley, Justice Sotomayor Recusal Likely as Supreme Court Weighs Greenhouse Gas 'Nuisance' Case, N.Y. Times, Dec. 3, 2010, http://www.nytimes.com/gwire/2010/12/03/03greenwire-justice-sotomayor-recusal-likely-as-supreme-cou-2319.html.

Lawrence Hurley, High Court Takes Up 'Nuisance' Case, Greenwire, Dec. 6, 2010, http://www.eenews.net/Greenwire/2010/12/06/1/.

Sean Wajert, Defendants in the Second Circuit Climate Change Case Seek Cert, MassTortDefense, Aug. 12, 2010, http://www.masstortdefense.com/2010/08/articles/defendants-in-second-circuit-climate-change-case-seek-cert/.