NU Online News Service, June 30, 11:24 a.m.EDT

Many newspaper accounts of the decision in American ElectricPower Co. v. Connecticut, suggest that the suit was "thrownout," "killed," or "dismissed," and that the threat of federalclimate change tort litigation has been removed. The truth is moresubtle, however, and the decision is as noteworthy for what thejustices did not decide as for what they did.

The U.S. Supreme Court on June 20 held in an 8-0 decision that the Clean Air Act displaced anyfederal common law right to seek abatement of carbon-dioxideemissions from fossil fuel-fired power plants.

The proceeding began in 2004, with two complaints filed by eightstates (two later dropped out), New York City, and three landtrusts against five private electric power companies and theTennessee Valley Authority. The defendants were said to account for10 percent of all anthropogenic carbon dioxide emissions in theUnited States.

The plaintiffs alleged a federal common law nuisance, or statelaw nuisance in the alternative, and sought injunctive relief inthe form of a cap and staged reductions in the defendants' carbondioxide emissions.

The district court dismissed the complaints as presentingnon-justiciable political questions, but the Second Circuit Courtof Appeals reversed, holding that the complaints did not presentpolitical questions, the plaintiffs had standing, and had stated aclaim under federal common law.

The U.S. Supreme Court granted review based on three questionspresented:

Whether the plaintiffs had standing;

Whether a cause of action could be implied under federal commonlaw where the Clean Air Act spoke to the same subject matter andassigned regulatory responsibility to the Environmental ProtectionAgency; and

Whether the claims constituted non-justiciable politicalquestions.

Justice Ginsburg wrote the opinion of the Court and there wereno separate dissenting opinions. Only eight justices participated.Justice Sotomayor recused herself, because she had been a member ofthe Second Circuit panel that decided the case below, although shewas elevated to the Supreme Court before the panel issued itsopinion.

Justice Alito wrote a brief concurrence, joined by JusticeThomas.

As to standing and the political question doctrine, the Courtsplit equally four votes to four, with the result that the Court ofAppeals' decision on these questions was affirmed. Only a singleparagraph of Justice Ginsburg's opinion was devoted to thesequestions.

She explained that four justices adhered to the dissentingopinion in Massachusetts v. EPA, and would hold that noneof the plaintiffs had Article III standing, while the other fourjustices would uphold Article III standing and find no bar toadjudication under the political question doctrine.

Unlikely Ruling

Although this paragraph of the opinion does not haveprecedential effect, it signals that five justices of the Court areunlikely to rule in the future that federal courts lackjurisdictional authority to adjudicate global warming tort claims.

A major obstacle to climate change tort litigation may thus havebeen removed.

Previously, all such suits in the federal courts had beenrejected—at least at the district court level—based either on thepolitical question doctrine or for lack of standing.

The bulk of the Supreme Court's opinion in American ElectricPower was devoted to the Court's determination that anyfederal common law cause of action had been displaced by the CleanAir Act and the EPA actions it authorizes.  This portionof the opinion includes strong statements about the advantages ofdecisionmaking by the EPA as an expert administrative agency, incontrast to attempts by federal judges to set emission standards byjudicial decree under federal tort law. 

In this respect, the opinion strongly reinforces the Court'sconclusion in Massachusetts v. EPA, 549 U.S. 497 (2007), that the EPAhas regulatory authority over greenhouse gases as "air pollutants"within the statutory definition (42 U.S.C. § 7602(g)),although the context is now stationary sources rather than motorvehicles.

At the same time, the Court clearly distinguished thedisplacement of federal common law from the preemption of statecommon law.   According to the Court,displacement of federal common law results wherever a federalstatute "speaks directly to the question at issue," and "does notrequire the same sort of evidence of a clear and manifestcongressional purpose demanded for preemption of statelaw."   

The opinion includes a single-paragraph discussion of theplaintiffs' state law claims.  The Court declined toaddress the availability of a claim under state nuisance lawbecause the issue had not been briefed by the parties or addressedby the Second Circuit, and left the matter open for considerationon remand. 

The Supreme Court's decision in American Electric Powerwill not end climate change tort litigation. The end result of thedecision appears to be:

That challenges to the justiciability of such suits in thefederal courts (whether articulated in terms of standing or thepolitical question doctrine) are unlikely to succeed before theU.S. Supreme Court, at least barring a significant shift to theright in the composition of the Court

That such suits will be governed by state rather than federallaw, apparently meaning the law of the source state where thepollution originated.

Had the Supreme Court determined that federal common lawgoverned tort claims based on greenhouse gas emissions, a singledecision by the Supreme Court could have terminated the entirefield of litigation.

With state law governing the claims, a simple judicialresolution is far less likely, and litigation on the subject couldcontinue for decades. Another option, of course, is for Congress tointervene by expressly preempting state law.

For the moment, however, that prospect seems unlikely, and anyfederal legislation addressing climate change would almostcertainly require very difficult political compromises.

J. Robert Renner is a partner with Duane Morris in thefirm's Los Angeles office. He can be reached at [email protected].