Tomorrow the Supreme Court will hear oral arguments in American Electric Power v. Connecticut, which presents the question whether states and environmentalist groups may sue utilities seeking injunctive relief for contributing to the “public nuisance” of global warming. This case languished before the U.S. Circuit Court of Appeals for the Second Circuit for years before the appellate court eventually green-lighted the litigation, overturning a district court decision concluding the case presented a non-justiciable political question. Now that it is before the Court, the case raises several questions which could determine whether federal courts will continue to hear cases raising nuisance claims against emitters of greenhouse gases, as I breifly discuss in this column for PERC Reports. AEP and its supporters argue that the nuisance claims have been displaced by the federal Clean Air Act, if not precluded on standing or political question grounds.
I explained my view of the merits when the Court accepted cert last December.
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.
However the Court decides the case, we will not see a traditional 5-4 split in this case — even if only because only eight justices will hear it. Justice Sotomayor is recused. So if the justices split on ideological grounds, they will divide 4-4 or 5-3. The Solicitor General filed a brief encouraging the Court to accept the case and suggesting two narrow grounds for reversal — prudential standing and displacement — grounds that may have broader appeal.
Laurence Tribe was initially on a brief supporting AEP, but had to remove his name due to his recent Justice Department stint. But that did not preclude him from writing an op-ed urging dismissal on political question grounds — a view he made at greater length before he went to DOJ. Interestingly enough, Tribe’s view is similar to that urged by David Rivkin and Lee Casey in the WSJ.
UPDATE: Richard Frank has another preview of the case at Legal Planet. Prof. Frank is one of many environmental law academics from around the country who have flown in to D.C. to see the oral argument, and will post additional thoughts later today. The transcript will be available this afternoon and audio will be released at the end of the week.