SCOTUS Decides American Electric Power Co. v. Connecticut

Jun 20: In the U.S. Supreme Court (SCOTUS), Appealed from the Second Circuit, Case No. 10-174. In this important case the High Court addresses the issue of whether the plaintiffs (several States, the city of New York, and three private land trusts) can maintain Federal "common law public nuisance" claims against greenhouse gas (GHG) carbon-dioxide emitters (four private power companies and the Federal Tennessee Valley Authority). The plaintiffs asked for a decree setting carbon-dioxide emissions for each defendant at an initial cap, to be further reduced annually. The Supreme Court ruled that U.S. EPA's authority under the Clean Air Act "displace the claims the plaintiffs seek to pursue." The High Court reversed the judgment of the Second Circuit and remanded the case for further proceedings consistent with its opinion. The Supreme Court ruling was unanimous, with two justices -- Alito and Thomas -- filing a separate concurring in part and concurring in the judgment opinion; and Justice Sotomayor took no part in the consideration or decision of the case.

 

    The Supreme Court heard oral arguments in the case on April 19, [See WIMS 4/25/11, WIMS 2/8/11 & WIMS 2/15/11]. Petitioners in the case involve five investor-owned utilities [American Electric Power Co. Inc., American Electric Power Service Corp., Cinergy Corp., Southern Co. and Xcel Energy Inc.] (Petitioners) and the Tennessee Valley Authority (TVA), an electric utility owned by the U.S. government which filed a separate brief. Respondents include: CT, NY, CA, IA, RI, VT, the City of NY and Open Space Institute, Inc., Open Space Conservancy, Inc., and Audubon Society of New Hampshire. Additionally many amicus briefs on both sides of the issue were filed.

   

    The High Court ruled in part, "It is altogether fitting that Congress designated an expert agency, here, EPA, as best suited to serve as primary regulator of greenhouse gas emissions. The expert agency is surely better equipped to do the job than individual district judges issuing ad hoc, case-by-case injunctions. Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. See generally Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 865–866 (1984). Judges may not commission scientific studies or convene groups of experts for advice, or issue rules under notice-and-comment procedures inviting input by any interested person, or seek the counsel of regulators in the States where the defendants are located. Rather, judges are confined by a record comprising the evidence the parties present. Moreover, federal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges, even members of the same court.

    "Notwithstanding these disabilities, the plaintiffs propose that individual federal judges determine, in the first instance, what amount of carbon-dioxide emissions is 'unreasonable,' App. 103, 145, and then decide what level of reduction is 'practical, feasible and economically viable,' App. 58, 119. These determinations would be made for the defendants named in the two lawsuits launched by the plaintiffs. Similar suits could be mounted, counsel for the States and New York City estimated, against 'thousands or hundreds or tens' of other defendants fitting the description 'large contributors' to carbon-dioxide emissions. Tr. of Oral Arg. 57.

    "The judgments the plaintiffs would commit to federal judges, in suits that could be filed in any federal district, cannot be reconciled with the decisionmaking scheme Congress enacted. The Second Circuit erred, we hold, in ruling that federal judges may set limits on greenhouse gas emissions in face of a law empowering EPA to set the same limits, subject to judicial review only to ensure against action 'arbitrary, capricious, . . . or otherwise not in accordance with law.' §7607(d)(9)."

     The High Court also addressed the issue of plaintiffs request for relief "under state law, in particular, the law of each State where the defendants operate power plants." The High Court said,  "The Second Circuit did not reach the state law claims because it held that federal common law governed. . . In light of our holding that the Clean Air Act displaces federal common law, the availability vel non of a state lawsuit depends, inter alia, on the preemptive effect of the federal Act. Id., at 489, 491, 497 (holding that the Clean Water Act does not preclude aggrieved individuals from bringing a 'nuisance claim pursuant to the law of the source State'). None of the parties have briefed preemption or otherwise addressed the availability of a claim under state nuisance law. We therefore leave the matter open for consideration on remand."

 

    Access the complete opinion (click here). Access the Supreme Court docket indicating the various briefs filed, questions presented and attorneys involved in the case (click here). Access a transcript of the oral arguments (click here). Access links to the 2nd Circuit decision, briefs and petitions filed (click here). Access the various other briefs in the case (click here). [*Air, *Climate, *SCOTUS] (click here for information on getting the links and more information about eNewsUSA).

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