Case name: American Electric Power Co. v. Connecticut

Jurisdiction: United States of America

Type of claim: Public nuisance lawsuit seeking the imposition of caps on and reduction of greenhouse gas emissions from power companies

Summary of result: The U.S. Court of Appeals for the Second Circuit declined to dismiss the public nuisance lawsuit. The Supreme Court overturned this decision and dismissed the lawsuit. Corporations cannot be sued for greenhouse gas emissions under the federal common law.

Judgement final: Yes.

Court instances:

Sources of claims: Federal common law of public nuisance

Summary of Judgement:

Introduction

In a unanimous judgement, the U.S. Supreme Court confirmed that private corporations cannot be sued for greenhouse gas emissions under the federal common law of interstate public nuisance, because this cause of action had been displaced by statute.

The plaintiffs, six states, the city of New York, and three non-profit land trusts, claimed that the defendants were the largest emitters of greenhouse gases in the country and that their emissions had “substantially and unreasonably interfered with public rights” in violation of the federal common law of public nuisance[1]. The defendants were four private power companies, and the Tennessee Valley Authority which is a federally owned corporation that operates fossil-fuel power plants in several states. The court did not accept the plaintiffs’ claims. The court found that the Clean Air Act authorized the Environmental Protection Agency (EPA) to regulate greenhouse gas emission in the country. Because Congress had granted the EPA the statutory authority to regulate greenhouse gas emissions, the judiciary did not have the authority to regulate greenhouse gas emissions through the federal common law (i.e. public nuisance claims), and therefore, the plaintiffs’ claims could not succeed.

Federal common law refers to the common law that is developed by the federal courts rather than state courts. In the United States, the common law is usually developed by state courts and the application is limited to that state. There is, however, a limited body of federal common law. In order for the federal court to create common law, it must be necessary to protect “uniquely federal interests”[2]. In the past, the federal common law of interstate public nuisance had been invoked to combat cross border pollution.

This case is significant as it was the second time that the U.S. Supreme Court had grappled with the application of the Clean Air Act and discussed the scope of the EPA’s jurisdiction. In 2007, the court released their decision on Massachusetts v EPA. They found that the Clean Air Act did authorize the EPA to regulate greenhouse gas emissions and that the government agency had incorrectly interpreted the statute when they determined they had no such power. In American Electric Power the court confirmed this determination while limiting the ability of future petitioners to invoke the federal common law of interstate public nuisance in relation to greenhouse gas emissions.

Claims by the parties

Plaintiffs

The plaintiffs, a group of states, non-profit land trusts, and the city of New York, claimed that the defendant companies had violated the federal common law of interstate public nuisance by emitting greenhouse gases that contributed to global climate change. They relied largely on cases from the 1990’s where the federal common law of interstate public nuisance had been invoked to deal with interstate pollution[3].

They alleged that by contributing to global warming, the defendants had “substantially and unreasonably interfered with public rights” in violation of the federal common law[4]. They sought a decree from the court that the defendants had violated the common law, and injunctive relief requiring the defendants to cap their greenhouse gas emissions at an initial level and then require them to reduce them by a specified percentage each year for at least a decade. They claimed that the federal common law had not been displaced by the Clean Air Act because the EPA had failed to exercise its regulatory authority under the Act. The plaintiffs argued that for the displacement doctrine to apply, it was not enough that Congress had delegated authority to the EPA to regulate greenhouse gas emissions, but rather, the EPA must have actually passed regulations to do this, which it had not done.

Defendants

The defendants advanced four arguments in court: 1) the plaintiffs did not have standing, 2) the political question doctrine bars the action, 3) the federal common law of nuisance cannot be used to address the alleged effects of climate change, and should not be expanded to do so, 4) if in fact the federal common law of nuisance could be relied upon, its application has been displaced by the Clean Air Act.

The defendants argued that the plaintiffs failed to meet the test to establish Article III standing. Specifically, the plaintiffs could not show that the defendants’ actions had caused the harms claimed, or that the relief sought would, without broader reductions in global greenhouse gas emissions, slow or reverse climate change[5].

The defendants further claimed that the political question doctrine barred this case from being heard. The political question doctrine applies when a question before the court is so politically charged that the federal courts, as an apolitical body, should not hear the issue[6]. They argued that what the plaintiffs are seeking would be the equivalent of a judicially administered environmental regulatory regime which is a political decision that needs to be left to Congress. They also argued that there was no federal common law nuisance cause of action and that the courts were not justified in creating one.

The defendants’ main argument was that the Clean Air Act authorized the EPA to regulate greenhouse gas emissions, displacing the federal common law cause of action the plaintiffs sought to rely on. In Massachusetts v EPA the U.S. Supreme Court had confirmed that the Clean Air Act did in fact give the EPA the authority to regulate the emissions of carbon dioxide and other greenhouse gases. Regardless of whether or not the EPA has exercised that authority, the act of delegation is enough to extinguish the federal common law.

US Supreme Court decision

The court limited its judgement to the issue of displacement. They found that the Clean Air Act delegated authority to the EPA to regulate greenhouse gas emissions and that this delegation was sufficient to displace the federal common law. They allowed the appeal and dismissed the suit.

In order for a federal common law to be overruled, Congress need only pass a statute that speaks to the issue at hand. In order for Congress to overrule state common law they must show evidence of a clear and manifest purpose, however, in the federal context, that is not required. So long as the issue is addressed, Congress does not need to indicate a clear and manifest purpose of displacing the federal common law. Applying this principle to the case at hand, the court found that the Clean Air Act speaks directly to the emissions of carbon dioxide and other greenhouse gases from power plants.

The court agreed with the defendants, that allowing this action to succeed would essentially allow the courts to create and administer an environmental regulatory regime. The court indicated that not only was Congress’s act of delegation sufficient, but the EPA, and not the courts, were the appropriate body to be making such decisions. Regulating greenhouse gases in any sector requires a balancing of competing interests. This requires specialization and expertise that the courts are lacking.

[1] American Electric Power Company Inc. et al., Petitioners v. Connecticut et all (2011). 10-174. Pg. 1

[2] Legal Information Institute. Common Law. Cornell Law School. Retrieved from https://www.law.cornell.edu/wex/common_law.

[3] Adler, J, (2011). The Supreme Court disposes of a nuisance suit: American Electric Power v Connecticut. Case Western Reserve University, School of Law Scholarly Commons. 571. https://scholarlycommons.law.case.edu/faculty_publications/571?utm_source=scholarlycommons.law.case.edu%2Ffaculty_publications%2F571&utm_medium=PDF&utm_campaign=PDFCoverPages. Pg. 296.

[4] American Electric Power. Pg. 8.

[5] Ciardullo, J. (February 14, 2011). AEP v Connecticut: A comparison of briefs filed by the defendant Electric Utilities. Climate Law. Retrieved from https://blogs.law.columbia.edu/climatechange/2011/02/15/aep-v-connecticut-a-comparison-of-the-briefs-filed-by-the-defendant-electric-utilities/.

[6] Legal Information Institute. Political Question Doctrine. Cornell Law School. Retrieved from https://www.law.cornell.edu/wex/political_question_doctrine#:~:text=This%20doctrine%20refers%20to%20the,doctrine%20or%20the%20nonjusticiability%20doctrine.