• U.S. Supreme Court Strikes Down States' and Nonprofits' Greenhouse Gas Lawsuit
  • June 29, 2011 | Authors: Jeffrey D. Talbert; David B. Van Slyke
  • Law Firm: Preti, Flaherty, Beliveau & Pachios, LLP - Portland Office
  • The United States Supreme Court ruled today in American Electric Power Co. v. Connecticut, that states and other parties may not bring federal common law claims to recover for alleged damages due to emissions of greenhouse gases ("GHGs") because Congress has delegated authority to regulate GHGs to EPA under the Clean Air Act.

    In July of 2004, several states (CA, CT, IA, NJ (no longer participating), NY, RI, VT, WI (no longer participating) and New York City, as well as several non-profit organizations (Open Space Institute, Inc., Open Space Conservancy, Inc. and Audubon Society of New Hapshire) filed separate actions in federal court in New York against five major electric power generating companies (AEP (and a wholey owned subsidiary), Southern Company, Xcel Energy, Inc., and Cinergy Corp.).  The plaintiffs asserted that the defendants' carbon dioxide emissions created "a substantial and unreasonable interference with public rights" in violation of federal common law of interstate nuisance.

    The Southern District of New York dismissed both suits, finding that they presented political questions that the judiciary could not address - such as the harm caused by GHGs.  The Second Circuit Court of Appeals reversed the District Court, finding that the Court had jurisdiction to decide such cases, the suits were not barred by a political question, and EPA had yet to regulate GHGs.

    Today, the Supreme Court, in a unanimous 8-0 decision written by Justice Ginsberg (J. Sotomayor did not participate) held that the Clean Air Act and EPA's ability to regulate GHGs under the Act prevent plaintiffs from bringing such federal common law claims.  In particular, the Supreme Court ruled that since GHGs are pollutants, and EPA has the ability to regulate pollutants under the Clean Air Act, plaintiffs cannot bring common law claims regarding harm from GHGs.  Instead, the Supreme Court pointed out that if plaintiffs are unhappy about harm from GHG emissions, the appropriate course of action is for states and citizens to file suit against EPA to force the Agency to definitively regulate GHGs.  EPA's action or inaction will then be reviewable by the courts.  This ruling will, therefore, likely put additional pressure on EPA to regulate GHGs.  It will also bring to a boil the simmering debate in Congress over efforts to put a moratorium of further Executive Branch efforts to regulate GHGs.

    This ruling should put an end to federal common law suits regarding GHGs for the foreseeable future and will likely have wide ranging impacts in other subject matter areas, as the decision also held that EPA action is not required to displace such federal common law suits (the fact that Congress delegated authority to EPA to regulate GHGs alone displaces such actions).  This decision will have wide ranging impacts for all federal common law suits where an agency has authority to regulate a challenged activity.