Jun 20 2011

Supreme Court Sides With Widener Law Professors’ Amicus Br. in American Electric Power v. Connecticut

Published by at 12:27 pm under Environmental Policy

Today in American Electric Power v. Connecticut, the United States Supreme Court held that the Clean Air Act, when coupled with EPA’s discretionary authority that the Court recognized in Massachusetts v. EPA, as well as the actions EPA has taken in the last two years to regulate greenhouse gas emissions, displaces federal common law causes of action for remedial action addressing climate change.

Professor May was Counsel of Record and co-author (with Prof. Stuart Banner of the Supreme Court Litigation Clinic at UCLA) of the Law Professor’s Amicus Brief on Behalf of Respondents (Plaintiffs) in the case.

In brief, the Court was unwilling to vest federal judges with the task of performing what it viewed to be primarily regulatory roles subject to democratic processes. Writing for an 8-0 majority of the Court (Justice Sotomayor, recused), Justice Ginsburg reasoned:

“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.” Thus, the Court concluded that “[a]ny such claim would be displaced by the federal legislation authorizing EPA to regulate carbon-dioxide emissions.”

The Court’s ruling in Massachusetts that the CAA provides EPA with discretionary authority to regulate greenhouse gases as “air pollutants” loomed large: “We hold 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 fired power plants. Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act. And we think it equally plain that the Act “speaks directly” to emissions of carbon dioxide from the defendants’ plants.”

The Court was unconvinced that federal courts should play a role in competing with EPA’s regulatory authority: “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.” Federal law does not permit both “tracks,” Ginsburg wrote.

The Court explained that its ruling does not affect state common law causes of action, which would be subject to a more exacting demonstration of congressional intent: “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.” “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,” it wrote.

The Court did not engage the political question or prudential standing arguments. Four Justices – including Justice Kennedy – accepted that the states possess constitutional standing under Massachusetts v. EPA, suggesting that five members of the Court (including Justice Sotomayor) accept that position.

One curious aspect of the decision is that notwithstanding the extent to which the Court seemed to rely on Massachusetts v. EPA, Justice Ginsburg noted: “The Court, we caution, endorses no particular view of the complicated issues related to carbon dioxide emissions and climate change.” (n2)

Justice Alito (joined by Justice Thomas) issued a brief concurrence, it appears for no other reason than to question the outcome in Massachusetts v. EPA (“I agree with the Court’s displacement analysis on the assumption (which I make for the sake of argument because no party contends otherwise) that the interpretation of the Clean Air Act, adopted by the majority in Massachusetts v. EPA, is correct.”

So seven years on the case returns to the district court, and possibly to state court, to consider the plaintiffs’ state common law claims, and with them, preemption and a host of other constitutional and common law issues.


Jim May

Comments Off on Supreme Court Sides With Widener Law Professors’ Amicus Br. in American Electric Power v. Connecticut

Comments are closed at this time.