Supreme Court shuts down environmentalists' legal path on emissions regulation

Posted: Oct 31, 2014

On June 20, 2011, the U.S. Supreme Court ruled in a case that will set precedent on how emissions are to be regulated and by whom. The plaintiffs in American Electric Power Company, et al. v. Connecticut et al., included eight states and New York City, as well as three nonprofit land trusts. The defendants were five major electric power companies, including American Electric, who the plaintiffs asserted, are the largest emitters of carbon dioxide in the nation. The plaintiffs were seeking a decree setting an initial cap for carbon dioxide emissions for each defendant, which would be decreased every year.

Essentially what the plaintiffs were aiming to accomplish, was to be able to address the emissions problem of private companies through the courts and to circumvent the legislative and administrative process. The plaintiffs were seeking to invoke the common law doctrine of nuisance (applied, for example, in cases seeking to quell the smells and sounds emanating from a cow farm intruding on nearby residential areas), to force regulations upon the nations top emitters of harmful greenhouse gases. If the plaintiffs were successful in proving that the carbon dioxide emissions were a nuisance, the Court would have had to rule that a reduction and/or an elimination of the emissions was the only remedy.

However, the Court held that judicial intervention in limiting gases linked to climate change would impede the separation of powers by stripping power from the legislature. The plaintiffs were asking the justices of the Supreme Court to determine what was best for society, in terms of environmental protection, while bypassing elected officials. The Court held that legislators and agencies, such as the Environmental Protection Agency, are more qualified to determine what is the correct form of action. The Court also held that the Clean Air Act preempted the nuisance claim by the plaintiffs.

The Court made an impactful message by ruling unanimously 8-0, with Justice Sotomayor recusing herself.
With the Court’s decision, the argument that climate change fits into nuisance law is essentially defeated. Because of this case precedent, environmentalists have seemingly reached a dead end on the common law approach to emissions law. The idea that climate change could be considered a nuisance by common law standards was a long shot to begin with, but now with a Supreme Court decision the question has been answered and environmentalists are left with one less path to go down.
Although this is a loss for environmental groups, they at least have their answer and can now focus on other options, like pressuring the legislature to limit the carbon dioxide emissions of energy companies.

However, the Court was split 4-4 on whether federal courts had standing to even hear the argument. This means that the 2nd U.S. Circuit Court’s ruling – granting the plaintiffs’ standing – stands, leaving open the possibility for a circuit split on future litigation involving emissions, which would make additional litigation inevitable. Although environmental groups can pursue cases in different circuits, Supreme Court precedent involving the actual emissions standards seems overwhelming compared to a simple jurisdictional matter.

This Supreme Court decision confirms for energy and environmental groups that the Clean Air Act precludes and supersedes any common law nuisance arguments. For environmental groups, it is time to gather their legal resources and pursue another direction, be that litigation, attempting to influence congressional policy, or something else altogether. Now it’s the environmental groups’ attorneys’ jobs to get creative, and figure out where that next door is.

-Anthony Santos, University of Colorado Law Student

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