The Sweet Taste of Defeat: American Electric Power Co. v. Connecticut and Federal Greenhouse Gas Regulation

Abstract

In the midst of a charged political battle over the Environmental Protection Agency's nascent efforts to regulate greenhouse gases under the Clean Air Act, the Supreme Court issued its 2011 decision in American Electric Power v. Connecticut (AEP). The Court held that plaintiffs’ federal common law public nuisance cause of action had been displaced by the Clean Air Act. Many headlines touted the decision as a win for utilities, highlighting the Court’s rejection of states’ and environmentalists’ claims against the five largest electricity generators in the United States. Although public nuisance lawsuits are often viewed as a distinct predecessor to regulation under modern federal environmental statutes, this article argues that these common law actions can significantly influence development of a federal regulatory regime for greenhouse gases.

By strongly reaffirming the Court’s 2007 decision in Massachusetts v. EPA, Justice Ginsburg’s brief opinion strengthened the Environmental Protection Agency’s authority to regulate greenhouse gases under the Clean Air Act. Moreover, because the Court held that displacement of public nuisance claims under federal common law hinges on EPA’s authority to regulate greenhouse gases, the decision impedes congressional Republicans’ efforts to obstruct EPA’s climate change efforts by amending the Act. Meanwhile, the Court did not decide whether or not the Clean Air Act preempts public nuisance actions brought under state law, leaving intact another possible tort avenue for plaintiffs. By bolstering EPA’s nascent efforts to regulate greenhouse gases, the decision appreciably advances the development of a federal regulatory regime to address climate change. Further, assuming they survive preemption challenges, public nuisance actions under state law could advance federal greenhouse gas regulation in both and intangible ways by serving as highly visible fora for discussing climate change impacts, generating political pressure, and prompting data collection, among other things.

Keywords: Environmental Protection Agency or EPA, Clean Air Act or CAA, administrative law, environmental law, environmental politics and policy, energy law, public nuisance, electric utilities