Monday, June 20, 2011

American Electric Power Co. v. Connecticut;: Supreme Court Reaffirms EPA Authority to Regulate Greenhouse Gases

By Associate Professor Katherine Trisolini

This is another installment in the Summary Judgments summer series, "The Headline Club," in which Loyola Law School professors will discuss legal issues ripped from the front page.

Today the Supreme Court handed down its decision in American Electric Power Co. v. Connecticut. Justice Ginsburg's opinion holds that the Clean Air Act displaces federal common law claims against power companies for contributing to the public nuisance of global warming. The decision reverses a Second Circuit case holding that state, local, and nonprofit plaintiffs had succeeded in stating a claim against five fossil-fuel fired power companies under federal common law. The Second Circuit case included a lengthy discussion supporting plaintiffs' standing and rejecting the trial court's conclusion that climate change presented a nonjusticiable political question.

While several headlines have focused on the Supreme Court's "rejection" of Connecticut's challenge, such attention to the formal outcome misses the real import of the case. The opinion bolsters EPA's authority to tackle greenhouse gases.

The Obama Administration had gambled that the Court would decide the case on the relatively narrow grounds that EPA's Clean Air Act authority to regulate greenhouse gas emissions from power plants displaces federal common law nuisance actions (leaving those who seek to reduce power plant emissions via federal law to first petition EPA rather than the courts).

Given the Court's 5-4 split on standing to raise a climate change challenge in Massachusetts v. EPA (2007) and the retirement of that opinion's author, Justice Stevens, the current case seemed like potentially fertile ground for a retrenchment on standing. However, the Administration's gamble seems to have paid off; conservatives did not get enough votes to decide the case on standing grounds. (Nor did the defendants succeed in luring the Court into expanding the narrow political question doctrine into a jurisdictional bar to climate change litigation.) Having initially been on the Second Circuit panel, Justice Sotomayor did not participate in the Supreme Court decision, leaving eight members to split evenly on the issue of standing. The opinion notes without elaboration that the Court's four to four division on standing leaves intact the Second Circuit opinion on that issue (and its general exercise of jurisdiction).

Instead, Justice Ginsburg's opinion reiterates Massachusetts v. EPA's holding that the Clean Air Act "authorizes federal regulation of emissions of carbon dioxide and other greenhouse gases." Pointing out that a refusal by EPA to follow the Act's mandates would be reviewable by the courts, the opinion holds that the Clean Air Act sufficiently "occupies the field" of greenhouse gas regulation to displace federal common law on the issue.

The opinion reaffirms the Court's endorsement of EPA's Clean Air Act authority to regulate greenhouse gas emissions in Massachusetts v. EPA. It also creates a conundrum for extremist members of Congress who have introduced bills to eviscerate EPA regulatory authority to address climate change; success on such legislative measures could revive the type of action put to rest here.

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