American Electric Power Company, Inc. v. State of Connecticut: Brief of Law Professors as Amici Curiae in Support of Respondents

Abstract

This is the Law Professors’ Brief on Behalf of Respondents in American Electric Power v. Connecticut, by James R. May and Stuart Banner. American Electric Power Co. v. Connecticut (“AEP”), is an important decision in the field of environmental law. It stands astride several junctures: public and private law; environmental, constitutional, and international law; injunctive and legal relief; state and federal action; and judicially, legislatively, and administratively fashioned responses. With its cornucopian issues extraordinaire — separation of powers, federalism, standing, displacement, political question, tort, and prudence — it has something for nearly all legal tastes, temperaments, and talents. AEP will continue to have profound and uncertain impacts on GHG related litigation and regulation, especially concerning jurisprudential notions of displacement, constitutional and prudential standing, the political question doctrine, and the role of common and statutory law.

The brief argues that the Court has never held, or even suggested, that constitutional doctrine forecloses judicial review of common law claims like the one in this case. And even if the political question doctrine limited judicial consideration of common law claims, we conclude that the public nuisance claims in AEP are not non-justiciable political questions.

Keywords: environmental law, constitutional law, American Electric Power v. Connecticut

JEL Classification: K32