Global Warming Goes Back to Court

This morning the Supreme Court accepted certiorari in American Electric Power v. Connecticut, a case in which several states and environmental groups alleged that greenhouse gas emissions from several large utilities constitute actionable contributions to the public nuisance of global warming.  This case has potentially broad implications for continuing climate change litigation in federal courts where plaintiffs have raised common law claims, but it unlikely to be as consequential as Massachusetts v. EPA.

AEP comes up from the the U.S. Court of Appeals for the Second Circuit, where it languished for several years.  Then-judge Sonia Sotomayor was on the original panel, so (as I  expected) she is recused.

Several questions were raised below, including whether the claims constituted non-justiciable political questions; whether plaintiff states and private organizations each had standing; whether the plaintiffs properly stated public nuisance claims federal common law, and whether federal common law interstate nuisance claims of this sort are displaced by the Clean Air Act.  Of note, the Solicitor General’s office supported petitioners arguing that the Court could resolve this case on relatively narrow grounds, either by finding the plaintiffs lacked prudential standing because global warming presents a generalized grievance or concluding that the plaintiffs’ claims are displaced by the federal Clean Air Act, particularly now that the EPA has begun to adopt and implement various greenhouse gas emission control regulations.

For what it’s worth, here is my view of the claims on the merits.  First, I do not think this case presents a non-justiciable political question.  Second, I think standing here is distinguishable from Massachusetts v. EPA.  The private parties in this case cannot avail themselves of the “special solicitude” for states found in Mass v. EPA, and neither set of parties can claim there is a procedural right to lower the requirements of causation and redressability.  I also believe the SG’s prudential standing concerns have merit.

On the nuisance claims, I think the plaintiffs likely have properly stated a public nuisance claim, though I have serious reservations on the remedy side.  Such arguments should be moot, however, as I think the argument for displacement is exceedingly strong.  I believe the Second Circuit completely muffed this part of its analysis by focusing on whether EPA had regulated greenhouse gases, whereas the relevant cases focus on whether Congress had occupied the field.  Given the Court’s holding in Mass v. EPA that the Clean Air Act covers greenhouse gases, I think it indisputable that Congress has occupied the field with a comprehensive regulatory scheme.  But even if the Second Circuit’s analysis was correct, its conclusion is no longer operable.  At the time of the Second Circuit’s decision the EPA had not yet finalized any of its greenhouse gas regulations.  That is no longer the case.  The EPA has finalized its endangerment finding and regulations covering both mobile and stationary sources, and more are on the way.  So even if the Second Circuit was correct in focusing on the C.F.R. instead of the U.S. Code, its holding has been overtaken by events.  This alone should be enough for a remand.  Indeed, this argument (made by the SG in its cert brief) has the potential to unify the Court around a narrow opinion.

I may have more to say on this case later.  For my prior posts on this case see here and here.  Readers may also be interested in this exchange I had with UCLA’s Jonathan Zasloff on the SG’s brief supporting certiorari.

UPDATE:  Ann Carlson comments at Legal Planet.