'American Electric Power Co. v. Connecticut': The Supreme Court Bars Tort Lawsuits Challenging Greenhouse Gas Emissions

On June 20, 2011, the U.S. Supreme Court unanimously held that the Clean Air Act, and the authority it confers on the U.S. Environmental Protection Agency (EPA) to regulate emissions of carbon dioxide and other greenhouse gases, "displaces" any federal common law right of state, municipal and private plaintiffs to assert tort claims in the federal courts seeking injunctive relief for alleged harm from greenhouse gas emissions. American Electric Power Co. v. Connecticut, No. 10-174 (2011). Justice Ginsburg authored the Court's 8-0 opinion. Justice Alito, joined by Justice Thomas, filed an opinion concurring in part and concurring in the judgment. Justice Sotomayor did not participate.

This short memorandum discusses the Court's decision, the policy and political backdrop leading up to the decision, and the impact that the decision may have on the electric power industry and other stakeholders.


The seeds of the Supreme Court's decision in American Electric Power were sown early in the first term of President George W. Bush's presidency. In 2001, when President Bush withdrew from the Kyoto Protocol discussions, his administration made clear that regulation of greenhouse gases would not be at the forefront of the American energy agenda.1 A year later, in 2002, the U.S. sent a climate report to the United Nations that, while acknowledging the harmful effects of global warming, reaffirmed the administration's policy not to regulate greenhouse gases.2 The Bush Administration's stance led several groups of plaintiffs concerned about the impact of climate change – including the American Electric Power respondents – to turn to the federal courts and the federal common law of nuisance. In July 2004, eight states, New York City and three nonprofit

land trusts3 joined together to file complaints in the U.S. District Court for the Southern District of New York against four electric power companies and the Tennessee Valley Authority (TVA), which (according to plaintiffs) were "the five largest emitters of carbon dioxide in the United States."4 2011 WL 2437011, at *5. The plaintiffs alleged that the power companies' carbon dioxide emissions contribute significantly to global warming, thereby endangering lands, habitat, infrastructure and health in violation of the federal common law of interstate nuisance (or, alternatively, of state tort law). The plaintiffs sought an injunction requiring each defendant to cap its greenhouse gas emissions and reduce them by a particular percentage each year for the next ten years.

The District Court dismissed the lawsuits as presenting non-justiciable political questions, and the plaintiffs appealed. In its decision issued in 2009, the U.S. Court of Appeals for the Second Circuit reversed.5 On the threshold issues of justiciability and standing, the Second Circuit held that the suits were not barred by the political question doctrine and that the plaintiffs had adequately alleged standing under Article III. On the merits, the Second Circuit held that the plaintiffs had stated a claim under the federal common law of nuisance, and that the Clean Air Act did not displace federal common law. The court based its decision in large part on its interpretation of the Supreme Court's decision in Milwaukee v. Illinois, 451 U.S. 304 (1981) (Milwaukee II), which held that a federal common law right to sue to abate discharge of sewage into Lake Michigan had been displaced by Congress' adoption of amendments to the federal Clean Water Act creating a regulatory and permitting program for discharges of pollutants into the waters of the United States. To the Second Circuit, the critical factor was not whether the regulatory agency (EPA) had the authority to act, but whether it had in fact acted to address the issue forming the basis of the plaintiffs' claims. In the words of Justice Ginsburg...

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