Last night I reviewed the transcript of the oral argument in American Electric Power v. Connecticut, which poses the question of whether several states (and private groups) may sue the nation’s largest utilities for contributing to the “public nuisance” of global warming under federal common law. I agree with most commentators that things don’t look good for the state parties. Assuming the oral argument provides a window into the justices’ thinking on the case, the question is not whether this suit can proceed, but what is the best basis for stopping it. No justice showed much sympathy at all for the underlying claims, though there were some indications that the justices have quite different views on where the greatest defects in the state parties’ arguments lie.
One point of division suggested by the questioning is whether the nuisance suit falls outside of Article III, either on standing or political question doctrine grounds. The SG’s argument that the case should be dismissed on prudential standing grounds did not seem to garner much support from either side. The argument for rejecting standing on this basis would seem to support an Article III holding, and if there is standing, no justice seemed convinced the Court should nonetheless preclude suit on these grounds. Whereas some justices seemed concerned that a broad holding would preclude too much litigation, Justice Scalia seemed to be worried that the Court would not preclude enough, asking AEP’s attorney “what good” an Article III dismissal would do them if the case could just be refiled in state court.
Assuming the case is not dismissed on Article III standing or political question grounds, the oral argument highlighted two more problems for the state parties. First, it is difficult to argue that their claim is not displaced by the Clean Air Act’s authorization of extensive regulation of greenhouse gases post-Massachusetts v. EPA. Given the number of EPA rulemakings governing stationary source GHG emissions, some of which have been finalized and some of which are still pending, the anti-displacement argument is difficult to make.
Insofar as some justices want to reach the underlying merits — as Justice Kennedy seems to want to do — the problems remain. Both Justices Ginsburg and Kagan worried that the states are effectively asking a federal district court to do the EPA’s job, and be a sort of “super EPA,” in Justice Ginsburg’s words. Said Kagan, “just reading that part of your complaint, it sounds like the paradigmatic thing that administrative agencies do rather than courts.” Justice Kennedy also raised the problem that equity disfavors meaningless remedies, and it would be difficult to argue that an injunction against five utilities could have more than an infinitesimal effect on atmospheric concentrations of GHGs.
Of course, oral argument may not be indicative of anything, and may not indicate how the case will come out. I was inclined to think the state parties were in trouble before. If anything, the oral argument cements that view — which is in line what most other commentators think.