Connecticut v. AEP
Connecticut v. AEP et al. (Full case name State of Connecticut, et al. v. American Electric Power Company Inc., et al.) involves a federal public nuisance claim filed by state attorney generals and conservation groups against utilities for their large contributions to climate change and resistance to lowering greenhouse gas emissions. The case was dismissed by the district court in 2005 and then reversed by the Second Circuit court in 2009. In 2010, the Obama Administration submitted a brief urging the Second Circuit to reconsider its reversal, arguing that the issue should be addressed by the EPA, and courts should stay out.
District Court ruling
In 2003, Connecticut, seven other states, New York City, and several conservation groups filed suit against the US-based power companies most responsible for greenhouse gas emissions, arguing that the climate-change-causing pollutants expelled by the their coal-fired power plants constitute a "public nuisance" under federal law. Lawyers for the plaintiffs used EPA records to file a legal claim against the five biggest offenders: American Electric Power, Duke Energy, Southern Company, the Tennessee Valley Authority, and Xcel Energy.
The district court sided with the utilities in September 2005 on the grounds that the claim presented non-justiciable political questions that required “identification and balancing of economic, environmental, foreign policy, and national security interests” of a “transcendently legislative nature.” In other words, the claim would require legal determinations that would interfere with the powers solely reserved for the executive and legislative branches.
Second Circuit Court reversal
In September 2009, the US Court of Appeals for the 2nd Circuit reversed the decision, based largely on the fact that EPA does not currently regulate carbon dioxide under the Clean Air Act. Until such regulations are enacted, the court said, plaintiffs could seek recourse using the common-law public nuisance argument: “Nowhere in their complaints do plaintiffs ask the court to fashion a comprehensive and far-reaching solution to global climate change, a task that arguably falls within the purview of the political branches. Instead, they seek to limit emissions from six domestic coal-fired electricity plants on the ground that such emissions constitute a public nuisance that they allege has caused, is causing and will continue to cause them injury.”
Obama Administration supports power companies
In early August 2010, the utilities asked the Supreme Court to review the case, arguing that public nuisance suits should not be used to address global warming emissions and that the issue is a "political question" that should be addressed by Congress, not the courts. In late August, Acting Solicitor General Neal Katyal filed a brief on behalf of the Tennessee Valley Authority asking the appeals court to reconsider its decision. In the brief, Katyal argues that because the EPA "is already on the case," the Supreme Court should vacate the 2nd Circuit Court's ruling and send the case back for reconsideration. SCOTUS has already weighed in on the issue of global warming: in 2007's Massachusetts v. EPA, the court ruled that the EPA could regulate greenhouse gases under the Clean Air Act, should it determine that those gases are a threat to human health. In April 2009, the EPA declared that the gases do endanger human health, thus beginning the process of regulation. In the brief written by Solicitor General Katyal, the Obama administration argues that it's already following through on this front, so the lower court should reconsider its 2009 ruling.
"Since this court held in 2007 that carbon dioxide falls within that regulatory authority, EPA has taken several significant steps toward addressing the very question presented here," Katyal wrote. The EPA's regulatory approach, he wrote, "is preferable" to letting the courts "sit as arbiters of scientific and technology-related disputes"—thereby dismissing the role of the courts on the issue. The brief argued that federal common law is displaced due to some actions the EPA has taken since the Second Circuit delivered its opinion: regulations on light-duty trucks, the endangerment finding, and New Source Review regulations, even though all of these are or will be under legal attack, and none directly address carbon dioxide emissions and climate change.
The plaintiffs and environmentalists argue that EPA regulations aren't yet in place and, according to the timeline issued by the agency, the initial rules aren't coming until 2011, and just for the largest and newest sources of pollution. The EPA's initial regulations won't touch existing coal-fired power plants, such as those at the heart of this case, unless there are significant changes made to those facilities. It's not yet clear when, if ever, the EPA would start phasing in rules for all older plants.
According to environmentalists, the Obama administration didn't have to weigh in on the case at all: "At the very least, they could have stayed out of it," said Jonathan Zasloff, a law professor at UCLA, who said letting the case go forward could create a greater impetus for legislative action on climate change, which the administration wants, giving Obama more bargaining power over polluters. Instead, Zasloff said the administration is giving large emitters an escape route, as utilities are expected to challenge and attempt to delay the EPA regulations, making it more difficult for the EPA to address climate change.
Supreme Court agrees to hear case, consider dismissal
On December 6, 2010, the Supreme Court said it will hear an appeal from defendant electric utilities, agreeing to consider ending the federal lawsuit by eight states, which asks a federal judge to order reductions in the emissions in plants in 20 states. The American Electric Power Co. and the other utilities do not want courts getting involved in the issue. The companies argue that only the Environmental Protection Agency can set emissions standards. The Obama administration, representing the TVA, want to avoid a full hearing at the high court, saying EPA regulation is a more efficient process than a federal lawsuit. The case will be argued in spring 2011. Justice Sonia Sotomayor, who was on the 2nd Circuit panel that heard the case, is not taking part in the Supreme Court's consideration of the issue.
AEP and other defendants argue that this global warming public nuisance claim, and others, do not hold up because:
- Climate change affects everyone and is caused by everyone, so there would be endless numbers of potential suits.
- A ruling of public nuisance by the courts would require first a regulatory determination of "acceptable" greenhouse gas levels, a power reserved to the political branches (the executive and legislative), making the issue a "political question" unsuitable for the courts.
- The federal courts should leave global warming exclusively to Congress and to EPA ("preemption" or "displacement").
Plaintiffs argue that:
- Climate change is not equally caused by everyone, and thus not everyone is legally liable - public nuisance law requires that defendants make a "meaningful" or "substantial" contribution to the problem. They note that there are only 14 power companies with annual CO2 emissions greater than 50 million tons, accounting for 46 percent of the entire power sector's CO2 emissions, and there are only 30 companies with annual CO2 emissions greater than 20 million tons, accounting for 69 percent of power sector emissions.
- The Court does not need to make a regulatory determination on permissible GHG levels, only assess what the five defendant companies can reasonably do to reduce GHG levels on their own.
- There are as of yet no federal regulatory limits on carbon pollution from existing power plants. EPA has authority to curb carbon pollution under the Clean Air Act, as the Supreme Court recognized in Massachusetts v. EPA. But the Justice Department emphasizes that EPA is free to issue no standards, and the power industry is suing EPA to block regulation. Thus there is no preemption of the claim because there is yet no regulation, and no assurance of regulation.
Supreme Court sides with utilities
On June 20, 2011, the Supreme Court ruled 8-0 that EPA’s authority to regulate greenhouse gases under the Clean Air Act preempts (aka “displaces”) the plaintiffs' right to pursue this federal tort law claim. The justices said the Environmental Protection Agency was better suited than federal judges to assess the costs and benefits of reducing carbon emissions. The states had argued that judges do not need to make cost-benefit analysis, but instead determine whether emissions were causing harm that violated the legal doctrine of public nuisance.
According to the decision: “The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation displaces federal common law."
The Court tied 4-4 on the issues of legal standing, political question and prudential question. The Obama administration and the companies had argued that the states and land trusts lack the legal right, or standing, to sue. The 4-4 split on standing means the 2nd U.S. Circuit Court of Appeals' finding that it did have jurisdiction stands, although that conclusion would not apply to other federal circuits. Sotomayor sat on that panel; hence her recusal.
The Supreme Court did not rule on state law claims, ordering the U.S. Court of Appeals for the Second Circuit to sort out whether parties can take action against utilities under certain state laws, including whether EPA’s climate plans under the Clean Air Act prevent that. 
- UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT, "State of Connecticut, et al. v. American Electric Power Company Inc., et al.", Jun. 7, 206.
- Jonathan Zasloff, "The SG Brief in Connecticut v. AEP: WORSE than you think" Legal Planet, August 26, 2010.
- Kate Sheppard, "Why is Obama Siding With Polluters?" Mother Jones, August 27, 2010.
- Gil Keteltas, "Second Circuit reversal in Connecticut v. American Electric Power enables significant climate change litigation to proceed" Climate Change Blog, September 22, 2009.
- "High court will review AEP climate change lawsuit" The Columbus Dispatch, Dec. 6, 2010.
- David Doniger and Matt Pawa, "Why the Supreme Court should let states sue the country’s biggest carbon polluters" Grist, April 19, 2011.
- Greg Stohr, "Climate Change Suit Against Utilities Rejected by Top Court" Bloomberg, June 20, 2011.
- Andrew Restuccia and Ben Geman, "Supreme Court rejects climate lawsuit against power companies" The Hill, June 20, 2011.
Related SourceWatch articles
- Clean Air Act
- Coal plant litigation
- EPA Deseret ruling
- Existing Coal Plant Litigation and Controversy
- Massachusetts v. Environmental Protection Agency
- North Carolina v. TVA
- David Doniger and Matt Pawa, "Why the Supreme Court should let states sue the country’s biggest carbon polluters" Grist, April 19, 2011
- Michael B. Gerrard, "Survey of Climate Change Legislation," New York Law Journal, Vol. 238, No. 63, September 28, 2007.
- Michael B. Gerrard, "Climate Change and the Environmental Impact Review Process," Natural Resources & Environment, Vol. 22, No. 3, pp. 20-24, Winter 2008.
- Jane A. Leggett, "Climate Change: Current Issues and Policy Tools," Congressional Research Service, March 6, 2009.
- Jonathan S. Martel, "Climate Change Law and Litigation in the Aftermath of Massachusetts v. EPA," Daily Environment Report, Vol. 7, No. 214, pp. 1-11, November 6, 2007.