43 Trends 1 (2011-2012)

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which egtttes th Cit ofNew York, an
several lan trst organiations sued the nation's
yie largest fossil-fiuel-buring electric atiiy corm-
ipanics to reduce thcir cmissions of greenhouse
gases, arguig th2t hese emissions constitute
pub ic nurisancc under federal cowmmon aw. The
Suprem e Cout rejected this clai  reasoning that
the Clean Air Act (CAA), when coupled with
the Environmenta Protection Agency's (EPA's)
authority and the actionis EPA has taken iin the
last two years to regulate greenhouse gas (GHG)
emissions, displaces federal common law nuisance
causes of actionl for injunctive action addressing
climate change.
roun  toto  ourt's dco
The action in AEP commenced in 2004 in an
entirely different judicial, administrative, and
legislative landscape. In Connecticut v. AEP,
a collection of states representing 77 million
citizens and private conservation organizations
sued the nation's five largest emitters of carbon
dioxide in the Inited States under federal com-
mon and state public nuisance law. Plaintiffs
asked the couirt for injurnctive relief to cap
defendants' emissions, develop a schedule for
reducing defendants' emissions on a percentage
basis over time, a ssess and measure available
alternative energy resources, and reconcile its
relief with U.S. foreign and domestic policy.
The utility defendants argued that the politi-
cal question doctrine, which holds that federal
courts should not consider certain matters
reserved for the representative branches, pre-
yented federal courts fror hearing the plaintiffs'
federal common law for puliec nuisance based
on climate change.
The U.S. istrict Court for the Southern
District of New York agreed withi the defen-
dants and dismissed the case as a nojustiible
political question. The court concluded that it
was impossible for it to wake the initial policy
deter mation hat wust be wade by the
elected branches before a non-elected court car
properly adjudicate a global warming nuisa nce
claim. It concluded that laintiffs' allegations
were extraordinary, patently political and
transcendently legislative. Connecticut v. AEP,
406 F. Supp. 265, 274 (S.D.N.Y. 2005).
In 2009, the U.S. Court of Appeals for the
Seco~nd Circuiat rev ersed1, finding cimate claims
in tort 1law to be justiciable. The Second Circuit
held that no aspect of the political question
doetrine applied to enjoin judicial review. In
particular, the circuit court found that cimate

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them Conectcutv. AP 52 Fd  09c(2dtr.I
on De mb t - ,fer 210 . t-e S.SuemaleyCur
anted Aercan Electr Power and the other
utility defendants petition for certiorari on the
issues of whether (1) the states anId other plain
tiffs lac standing (2) federal law displaces the
plantis' cims, ai (3) the cse aisces njus-
ticiab e poitical qestions. Justice Sotoayor,
who was a member of the Sccond Circuit psnel
in the case below, recused herself.
The Obama administration filed a brief
on behalf of defendant Tennessee Valley
uthorityon the same side as the utility defen-
dants-arguing that the plaintiffs lack pruden-
tial standing, and that federal law displaces the
nee for common law causes of action for cli-
mate change. In particular, the Solicitor General
argued that various EPA activities displace the
need tor federal common law causes of action
and er the standards set in the Courts decisions
in Middlesex County Sewerage Auth. v. Nut'1
Sea Clammers Ass'n and Milwvaukee v.Jllinois
ral argument was held on April 19, 2011
During oral argument, none of the justices seri-
ously questioned that climate change is occur-
ring that human activity is paying a role in that
dynamic, that the CAA bestows upon EPA the
authority to regulate GHGs as ar 'pollutant
nder Massachusett v EPA that at least the
states possess both conistiutionai arid prudential
standing, or that federal courts have authority
consder cases concerning climate change
Nonetheless, several Justices expressed
skepticism about the propriety of using federal
cor on law ir this context, including the more
'liberal' wing of the CourftJustices uth  ader
Ginsburg, Stephen Breyer, anR d lena Kagan
For example, Justice reyer asked, if the court
car set emission standards, why can't they also
set carbon taxes, which are likely to be more
effective Wht' the end~ of it? Jus~tice Kaganl
iqie,this sounds like the paradigratic
thing that administrative agencies do rather
than courts. Justic~e Ginsburg remarked to the
respondents' attorney: Congress set up the EPA
to promulgate stanrdards for emissions, and ...
the relief you're seeking seems to me to set up a
district judge, who does not have the resources,
the expertise, as a kind of super BPA.
Justice Ginsburg's concern~ about implicit y
designating district judges as a kind of super
EPA proved a harbinger of the Court's final
opinion. Writing for ar 8-0 majority of the
Continuied on page 15

Septemb. .: er/October A2011
Volum 43, Nuber 1

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