Tuesday, March 8, 2011

Hoping for the Least-Bad in AEP v. Connecticut

The Supreme Court will hear oral argument in its second major climate change case soon.  Argument in American Electric Power Co. v. Connecticut is scheduled for Tuesday, April 19.  The questions presented are (1) whether Connecticut and other plaintiffs have standing; (2) whether plaintiffs’ nuisance claim is preempted by the Clean Air Act; and (3) whether plaintiffs’ claim constitutes a political question. 

I would like to think that this decision, like Massachusetts v. EPA, might, in the words of Georgetown Professor Richard Lazarus, be “stunning” and “A Breathtaking Result for Greens” (see The Environmental Forum®, May/June 2007) but the converse seems much more likely. With the recusal of Justice Sotomayor, the best outcome for greens would appear to be a 4-4 tie.  But how likely is it that the four justices that might possibly rule in favor of plaintiffs on all the questions presented really will? 

It seems, then, that the most that greens can hope for this time around is the least-bad outcome.  My sense of the spectrum from most-bad to least-bad is the following:

1) The Court overrules Massachusetts v. EPA on standing.
2) The Court leaves Massachusetts v. EPA intact, but holds that Connecticut doesn’t have prudential standing (as has been argued by the Solicitor General).
3) The Court holds that plaintiffs' nuisance claim is a political question.
4) The Court holds that plaintiffs' nuisance claim is preempted.

The three worst outcomes listed above embrace the view that climate change policy is not the judiciary’s business.  The final outcome -- holding in favor of American Electric Power Co. on the basis of preemption -- endorses the different view that climate change policy isn’t the judiciary’s business only if the legislative and executive branches have made it their business. I happen to think that we will need all our governance institutions to be able to step up to deal with the problem of climate change, so of the options on my all-bad spectrum, this is my preference.  What's yours?

-Lesley McAllister


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This is an interesting angle on outcomes, Lesley. Least-bad is probably the best bet. From my POV, a finding that EPA's regulatory actions (arguably minimal and certainly insufficient though they are) have displaced federal common law is not all that bad, at least not from a law perspective. I think it will be hard for any court to rule otherwise. To do so would essentially amount to second-guessing sweeping policy choices and broad-reaching regulatory action made by the executive branch, and to doing so through nuisance law rather than, say, judicial review of administrative action. From an advocacy perspective, there is obviously going to be a loss in terms of using every tool in the toolkit to keep pressure on industry and the political branches to reduce GHG emissions. I wonder, though, whether there is any chance that the state nuisance claims survive -- Can federal common law be displaced and state common law not be preempted?

Posted by: MHB | Mar 10, 2011 6:05:43 AM

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