American Electric Power Company, Inc. v. Connecticut (2011)

Issue

Whether federal common law of interstate nuisance or state tort law claims can be used to regulate carbon-dioxide emissions.

Facts

“Eight states, the City of New York, and three land trusts separately sued the same electric power corporations that owned and operated fossil-fuel-fired power plants in twenty states.” It was claimed that American Electric Power Company Inc. and a few other power plants were among the largest emitters of carbon dioxide in the United States and they provided ongoing contribution to the public nuisance of global warming.

The plaintiffs claimed that the electric power corporations’ contribution to global warming violated federal common law nuisance, or state tort law. They sought injunctive relief from the electric power corporations’ carbon dioxide emissions by requesting the court to provide an initial carbon dioxide emission cap and that the cap would be reduce annually.

The Court Below

United States District Court for the South District of New York was the first to hear the case. The court ruled in favor of American Electric Power Company, Inc., et al., ruling that the plaintiff’s complaints were non-judiciable political questions. See opinion below:

Connecticut v. American Elec. Power Co., Inc., 406 F.Supp.2d 265 S.D. New York, 2005

Dissatisfied with the ruling of the lower court, the states and private groups appealed to the Second Circuit. The court ruled in their favor, holding that it did have standing to sue the power companies and that its case did not present political questions. See opinion below:

Connecticut v. American Elec. Power Co., Inc., 582 F.3d 309 2^nd Cir., 2009

The power companies then appealed the case to the Supreme Court, who opted to hear the case. The Court ruled in favor of the power companies with a caveat that at least a few of the entities bringing suit have standing to sue. See opinion below:

American Elec. Power Co., Inc. v. Connecticut, 131 S.Ct. 2527 U.S., 2011

Question before the Court

The question before the Court is twofold. First, can states and private groups sue power companies to curb global climate change? Second, is there a cause of action to reduce carbon emissions implied in common law?

CCJ filed an amicus curiae brief in support of power companies

Summary:

To briefly summarize the argument, Constitutional and statutory authority precludes the judiciary from creating federal common law of the scope and breadth demanded by respondents. And any authority for judicial creation of federal common law is displaced by congressional consideration of the issue.

Constitutional and statutory authority precludes the judiciary from creating federal common law of the scope and breadth demanded by respondents. Any exercise of federal power must be authorized by the Constitution, and the Constitution charges the legislature with enacting substantive law that creates, defines, and regulates rights. To the contrary, the Constitution does not assign any similar power to the federal courts, and the Supreme Court has held in United States v. Coolidge that no federal common law whatsoever exists apart from legislative adoption. Any ruling concerning federal common law must not be inconsistent with legislative intent of laws passed by Congress.

Any authority for judicial creation of federal common law is displaced by congressional consideration of the issue. Given legislative activity, failed legislative activity, and other congressional actions related to climate change, the unusual and narrow circumstances for creation of federal common law disappear. Any act of the federal court to decide which emission standards exist would usurp Congress’ authority.

In American Electric Power Company, Inc. v. Connecticut, the plaintiff is requesting the federal court to rule on federal common law public nuisance claims against carbon-dioxide emitters. However, the Constitutional and statutory authority precludes the judiciary from creating federal common law of that scope and breadth, and, given the laws enacted by Congress, any judicial ruling of that type and scope would usurp Congress’ authority.

Final Outcome

The Supreme Court decided the case, but reached a four to four tie in the ruling. The Court held that the Clean Air Act and EPA actions on climate change do, in fact, block a common law claim to address carbon emissions, consistent with CCJ’s position. However, the Court also held that at least some of the suing parties had standing to sue, and that whether a remedy could be found in the common law was not addressed by the Court.