News and Events Involving Environmental Law, Published by Chicago Environmental Attorney Dave Scriven-Young
of Peckar & Abramson, P.C. -- (312) 881-6309

U.S. Supreme Court’s Opinion in American Electric Power Co. v. Connecticut

In American Electric Power Co. v. Connecticut, the U.S. Supreme Court dismissed federal common law public nuisance claims brought by the plaintiffs (several States, the City of New York, and three private land trusts) against the defendants (four private power companies and the federal Tennessee Valley Authority.)

The plaintiffs alleged that the defendants contributed to global warming and that the defendants’ carbon-dioxide emissions created “a substantial and unreasonable interference with public rights,” in violation of the federal common law of interstate public nuisance, or, in the alternative, of state tort law.  The plaintiffs sought an injunction requiring each defendant to “capture its carbon dioxide emissions and then reduce them by a specified percentage each year and for at least a decade.”

Perhaps the most interesting part of the Court’s opinion is its shortest, which addressed whether the plaintiffs had standing to bring their lawsuit in federal court.  This issue was hotly contested in the lower courts; yet the Supreme Court could not muster a majority to finally resolve it.  Because of the recusal of Justice Sotomayor–she was on the Court of Appeals panel that issued the opinion that the Supreme Court was reviewing–the Supreme Court split 4-4.  Therefore, under Supreme Court precedent, the Court “affirm[ed], by an equally divided Court, the Second Circuit’s exercise of jurisdiction and proceed to the merits.”  Obviously, Justice Sotomayor would have broken the tie in favor of retaining jurisdiction, and this gives some indication of how the Court may rule on standing in the future.

Going to the merits, the Court held that the plaintiff’s federal common law public nuisance claim should be dismissed because “any such claim would be displaced by the federal legislation authorizing EPA to regulate carbon-dioxide emissions.”  EPA is currently in a rulemaking proceeding to set standards for greenhouse gas emissions from fossil-fuel fired power plants.  During this rulemaking, EPA has the authority to implement the same relief that the plaintiffs seek.  Thus, the Court saw “no room for a parallel track.”  If the plaintiffs are not happy with the EPA’s final rule on this issue, the plaintiffs will have the ability to challenge the rule in court.

The Court then remanded the case to the lower courts to decide whether the plaintiffs’ state-law claims will survive.

This decision is a double-edge sword for both industry and environmentalists.  On the one hand, it gives industry a victory in that compan do not have to face these sorts of lawsuits, and they can try to influence any future EPA rule (especially if a Republican wins the presidency in 2012).  However, environmentalists also won in that the Court reaffirmed EPA’s ability to regulate greenhouse gas emissions.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.  To set up a free initial consultation to discuss your legal matter, please contact Dave Scriven-Young at (312) 239-9722 or

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