By Brian R. Paget
The U.S. Supreme Court issued its much-anticipated opinion in American Electric Power v. Connecticut (“AEP”) on June 20, 2011. The plaintiffs in that case—eight States, three nonprofit land trusts and the City of New York—had hoped to use federal public nuisance law as a tool to curb greenhouse gas (“GHG”) emissions from five large electric power companies. The Supreme Court, however, unanimously held that the federal courts do not have jurisdiction to hear claims that GHG emissions constitute a public nuisance under federal common law. According to the Court, any such claims the plaintiffs might have had were displaced by Congress’ delegation of authority under the Clean Air Act to the U.S. Environmental Protection Agency (“EPA”) to regulate GHG emissions and the EPA’s recent efforts to do just that.
Despite the enactment in recent decades of numerous federal and state statutes that authorize lawsuits to address environmental pollution, one of the most potent weapons in the arsenal to address such pollution remains the centuries-old common law of public nuisance. Nuisance law has shown considerable flexibility in being able to expand to encompass a broad range of new and different conditions as “public nuisances,” basically, conditions that unreasonably interfere with the public’s right to use and comfortably enjoy property, including conditions of environmental contamination.
This has led to several recent efforts to extend nuisance law to cover global warming as a public nuisance. States, cities and public interest groups have brought lawsuits against some of the country’s largest utility companies, alleging that their GHG emissions cause or contribute to global warming, that such warming constitutes a public nuisance, and that the courts should enjoin those utilities to reduce their emissions.
AEP is typical. That case was filed in a federal district court in New York in 2004 by eight states against several coal-fired electricity plants and was later consolidated with similar cases filed by public interest groups. The plaintiffs sought to limit the GHG emissions from those plants on the ground that such emissions constitute a public nuisance. The district court, however, dismissed the lawsuit, finding that it presented non-justiciable political questions.
The appellate court disagreed. The U.S. Court of Appeals for the Second Circuit held that the plaintiffs’ public nuisance claims do not present non-justiciable political questions.
The defendants then filed a petition for certiorari to the U.S. Supreme Court. They argued that the plaintiffs lack standing to maintain their public nuisance claims, that the plaintiffs’ public nuisance claims present non-justiciable political questions, and that the EPA has sole authority to regulate GHG emissions pursuant to the Clean Air Act. In fact, while the defendants’ petition was pending, the EPA issued a number of new regulations related to GHG emissions pursuant to its authority under the Clean Air Act.
The Supreme Court accepted certiorari on December 6, 2010, heard oral arguments on April 19, 2011, and issued its opinion on June 20, 2011.
On the issue of whether the plaintiffs had standing to maintain their federal common law public nuisance claims, an equally-divided Court affirmed the Second Circuit’s decision on that issue. The four to four split was resulted from the recusal of Justice Sotomayer, who had participated in the Second Circuit decision.
On the issue of whether the EPA has sole authority to regulate GHG emissions pursuant to the Clean Air Act, the Court began by noting that “federal common law addresses ‘subjects within national legislative power” and that “[e]nvironmental protection is undoubtedly an area ‘within national legislative power,’ one in which federal courts may fill in ‘statutory interstices’ and, if necessary, even ‘fashion federal law.’” However, “when Congress addresses a question previously governed by a decision rested on federal common law,” the Court explained, “the need for such an unusual exercise of law-making by federal courts disappears.” “The test for whether congressional legislation excludes the declaration of federal common law is simply whether the statute ‘speak[s] directly to [the] question’ at issue.” The Court, relying on its 2007 decision in Massachusetts v. EPA that GHG emissions are subject to regulation by the EPA under the Clean Air Act, held that the Clean Air Act speaks directly to the issue, namely, GHG emissions from the defendants’ plants. Therefore, the Court held “that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.”
Finally, it should be noted that the plaintiffs in AEP also asserted nuisance claims under state law against the defendants, namely, the law of each state where each of the defendants operated their power plants. The Supreme Court did not decide whether these state law nuisance claims would also be barred by the federal Clean Air Act. The Second Circuit Court of Appeals did not reach that issue and the parties did not brief it to the Supreme Court. The Court therefore left the issue open for consideration on remand.