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Monday, June 20, 2011

Supreme Court Prevents Emissions Suits Under Federal Common Law But Not Clean Air Act

Today the Supreme Court handed down its decision on American Electric Power Co., Inc. v. Connecticut. At stake was the right of states and individuals to stop corporate polluters from emitting harmful greenhouse gases.

The Court decided 8-0 in favor of AEP, with Justice Sotomayor recusing herself from the case.

This case was brought by eight states, plus 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 AEP's motion to dismiss, allowing the case to move forward.

Justice Ginsburg delivered the opinion of the Court, which held that the 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.

Despite their ruling, 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 lower courts 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.

AFJ's report on the case, Billionaires Behind the Curtain, focuses on the role played by the activist billionaire Koch brothers in financing groups who weighed in on behalf of American Electric Power and the other polluter defendants.

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