SCOTUS Holds That Plaintiffs Cannot Maintain Federal Common Law Nuisance Claims Against GHG-Emitting Utilities but Leaves Window Open for State Common Law Claims
On June 20, 2011, the Supreme Court reversed the Second Circuit’s decision in American Electric Power, Co., Inc. v. Connecticut, No. 10-174, but on narrower grounds than some had hoped. The Court held 8-0 that Connecticut and a coalition of seven other states, the City of New York, and three land trusts could not proceed with their federal common law public nuisance claims against carbon dioxide emitters (four private power companies and the federal Tennessee Valley Authority).
The Court held that the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel power plants. While the Court’s decision effectively precludes the plaintiffs and similarly situated parties from seeking to limit greenhouse gases under federal common law, it leaves open the possibility that parties may pursue similar claims under state common law.
The Court was split (4-4) on whether plaintiffs had standing to bring this claim. This means that the Second Circuit’s finding that plaintiffs did have standing (and that the court therefore had jurisdiction to hear the case) stands, although that ruling is not binding on other circuits. Thus, the Court’s decision does not provide a jurisdictional bar to future climate change tort lawsuits, which was sought by the power company defendants. The industry had hoped to limit the Court’s standing holding in Massachusetts v. EPA, 549 U.S. 497 (2007). The Court did not address whether the political question doctrine bars tort suits related to climate change, which potentially would have been a more broadly applicable basis for reversal.
Thus, in future actions seeking damages for harm resulting from climate change based on state common law theories, issues of preemption of state law, standing, and the political question doctrine still may need to be adjudicated. The Court did hint, however, that state law actions would be preempted by the Clean Air Act. On the other hand, plaintiffs will point to the fact that the Court specifically noted that the test for displacement of federal common law presents a lower threshold than preemption of state law. The next tort battles will likely be in state courts or federal courts with diversity jurisdiction. Plaintiffs also may follow the Court’s advice and file actions pursuant to the Clean Air Act.
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