By Steven Jones, Partner, Marten Law PLLC
"In an 8-0 opinion, the U.S. Supreme Court held on June 20 in American Electric Power Co. v. Connecticut (AEP) that federal courts do not have jurisdiction to hear federal common law nuisance claims relating to greenhouse gas (GHG) emissions, because authority to regulate GHGs has been delegated to EPA-not to the federal courts," writes Steven Jones. "The AEP decision reverses a ruling by the Second Circuit Court of Appeals. While rejecting the merits of the plaintiffs' claims, the Court held that the plaintiffs had standing to bring them on a 4-4 split among the Justices. Justice Sotomayer, who had participated in the Second Circuit decision, recused herself."
"While rejecting the availability of federal common law nuisance claims, the AEP decision affirmed the Second Circuit's decision to exercise jurisdiction, as well as the Circuit Court's rejection of the district court's ruling that the case raised non-justiciable political questions," he reports. "The affirmance came as a result of a 4-4 division among the Court."
"While rejecting their federal common law claims, the Court made clear that the plaintiffs had other available means to force restrictions on GHGs. These remedies include both direct judicial review of EPA's regulatory actions, civil enforcement in the event EPA fails to act, or rulemaking petitions," Jones explains. "Pointing to these multiple avenues for enforcement, the Court stated that '[t]he Act itself thus provides a means to seek limits on emissions of carbon dioxide from domestic power plants-the same relief the plaintiffs seek by invoking federal common law. We see no room for a parallel track.' But while judicial review provides oversight on EPA's actions, it does not allow the federal courts to supplant EPA's role as the place where regulations should be initially developed."
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Case Law Resources -
Lexis.com subscribers can access the Lexis enhanced version of Am. Elec. Power Co. v. Connecticut, 2011 U.S. LEXIS 4565 (U.S. June 20, 2011) with summary, headnotes, and Shepard's.
Non subscribers can access the free unenhanced version of the Am. Elec. Power Co. v. Connecticut, 2011 U.S. LEXIS 4565 (U.S. June 20, 2011) decision available from lexisONE Free Case law.
Lexis.com subscribers can obtain all of the briefs filed in the United States Supreme Court in Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 813.
Lexis.com subscribers can access the Transcript of oral arguments in United States Supreme Court in Am. Elec. Power Co. v. Connecticut, 131 S. Ct. 813.
Lexis.com subscribers can access the Lexis enhanced version of Connecticut v. Am. Elec. Power Co., 582 F.3d 309 (2d Cir. N.Y. 2009) with summary, headnotes, and Shepard's.
Lexis.com subscribers can access the Lexis enhanced version of Conn. v. Am. Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005) with summary, headnotes, and Shepard's.
Also available to lexis.com subscribers -
Climate Change Litigation, 3-17C Environmental Law Practice Guide 17C.10 (Matthew Bender).Climate Change and Global Warming-Climate Change Litigation, 2-1A Treatise on Environmental Law 1A.13 (Matthew Bender).
Beginning Official Recognition of the Phenomenon of Global Warming, 2-1A Treatise on Environmental Law § 1A.02 (Matthew Bender).
More Full Text Emerging Issues Analysis Related to Environmental Law.
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Marten Law: Solicitor General Sides With Utilities, Asking Supreme Court to Block Common Law Climate Change Lawsuit.
Marten Law Group: Second Circuit Allows Federal Nuisance Claims for Global Warming to Proceed.
Marten Law: Virginia Supreme Court to Decide Insurance Coverage for Climate Change Suits--AES Corp. v. Steadfast Insurance Co.
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