AEP v. Connecticut: Will the Supreme Court make defendants do “their share” to mitigate global climate change?

(from the Washington Legal Foundation Legal Backgrounder, Vol. 26 No. 8, April 8, 2011)

By Mark W. DeLaquil and David B. Rivkin, Jr.

The last several years have witnessed the proliferation of common law tort suits seeking compensation for the alleged harms caused by global climate change.  The Supreme Court granted certiorari in one such case, American Electric Power Co. v. Connecticut, No. 10-174.  It is now presented with the question of whether states and private plaintiffs should be entitled to sidestep the political process by conscripting federal courts into regulating carbon dioxide emissions through “the same principles we use to regulate prostitution, obstacles in highways, and bullfights.” North Carolina ex rel. Cooper v. TVA, 615 F.3d 291, 301 (4th Cir. 2010).  Given the ubiquitous and global character of greenhouse gas emissions, and the uncertain nature of public nuisance liability, the Supreme Court’s decision will either affirm the commonsense principle that federal courts should not make contentious pollution control policy through the adversarial system or will open the floodgates to regulation by litigation.


In AEP, states and an environmental group filed suit against five electric utilities they allege to be the largest greenhouse gas emitters in the United States.  The AEP plaintiffs characterize global climate change as a “public nuisance” and ask the court to order the defendants to cap their carbon dioxide emissions by the amount necessary to achieve their “share of the  . . . reductions necessary to significantly slow the rate and magnitude of warming.”  AEP is paralleled by suits brought by Gulf Coast residents against several dozen energy companies, see Comer v. Murphy Oil USA, 607 F.3d 1049 (5th Cir. 2010) (dismissing appeal); Native Americans, see Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009), appeal pending, No. 09-17490 (9th Cir. Nov. 5, 2009); officious intermeddlers, see Korsinsky v. EPA, No. 05-cv-859 (NRB), 2005 U.S. Dist. LEXIS 21778 (S.D.N.Y. Sept. 29, 2005); and an overlapping group of states, see California v. Gen. Motors Corp., No. C06-05755 MJJ, 2007 U.S. Dist. LEXIS 68547  (N.D. Cal. Sept. 17, 2007), appeal dismissed, No. 07-16908 (9th Cir. June 24, 2009).  Several of the plaintiff states have also sought to require EPA to regulate greenhouse gas emissions under the Clean Air Act by, inter alia, appearing as plaintiffs in Massachusetts v. EPA, 549 U.S. 497 (2007).

The Lower Courts’ Decisions. 

The AEP district court held that plaintiffs’ claims were barred by the political question doctrine.  The court reasoned that it could not adjudicate plaintiffs’ claims without deciding the appropriate level of global greenhouse gas emissions, what industries or entities should be responsible for reducing emissions, and the amount by which each industry or entity should be required to reduce emissions.  Connecticut v. American Elec. Power Co., Inc., 406 F. Supp. 2d 265, 273 (2005).  Deciding these questions would have required the court to make numerous non-judicial “policy determination[s],” including the effect that unilateral emission reductions would have “on the United States’ ongoing negotiations with other nations concerning global climate change . . [and] on the United States’ energy sufficiency and thus its national security.”  Id. at 272.  In light of its ruling that the matter was non-justiciable, the district court did not decide whether plaintiffs had standing or whether federal common law provided a cause of action.

A two-judge panel of the Second Circuit reversed.  (Then-Judge Sonia Sotomayor was a member of the panel at oral argument and is recused from the Supreme Court’s consideration of AEP.)  The court of appeals reasoned that the action was an “ordinary tort suit” and therefore would not require the court to make non-judicial policy determinations.  Connecticut v. American Elec. Power Co., Inc., 582 F.3d 309, 331 (2009).  Relying primarily on arguably antiquated pre-Clean Air Act precedent, the Second Circuit further held that the federal common law provided plaintiffs with a cause of action for nuisance that was not preempted by the Clean Air Act.  Id. at 381.  The court also held that plaintiffs’ allegations that the defendants contributed to global climate change sufficed to satisfy Article III standing requirements at the motion to dismiss stage.  Id. at 349.  The Second Circuit denied petitions for rehearing or rehearing en banc.  The Supreme Court granted certiorari to review three discrete legal issues:  (a) standing; (b) the political question doctrine; (c) and the existence and potential displacement of federal common law.

A Matter Not Fit For Judicial Resolution. 

At the heart of each issue facing the Supreme Court is the stark reality of what the plaintiffs have asked the federal judiciary to do:  set environmental policy for addressing a global issue through party-driven litigation, on a piecemeal basis with the distinct likelihood of conflicting decisions, rather than through politically accountable legislative or administrative processes.  Determining whether defendants’ activities constituted “an unreasonable interference with a right common to the general public,” Restatement (Second) of Torts sec. 821B, would require the Court to determine whether defendants’ means of generating energy are more or less socially beneficial than the harms to which they are alleged to contribute, and that greenhouse gas emission limits should be imposed on the five defendants but not their competitors or other industries.  Put simply, the legal standard for plaintiffs’ public nuisance claim is a “legal garbage can” full of “vagueness, uncertainty and confusion.”  William L. Prosser, Nuisance Without Fault, 20 TEX. L. REV. 399, 410 (1942).

Even if there were a principled way for a federal court to make these determinations, the scientific issues underlying the effect of the defendants’ emissions and the likelihood of various alleged harms are complex and contentious.  Federal judges are selected for their legal acumen, not their scientific expertise, and it does the public and judiciary a disservice to require them to decide such exceptionally complicated scientific disputes.  And were a federal court to render a decision, it would have no discernable effect on mitigating the alleged nuisance.  The plaintiffs’ alleged injuries are caused by hundreds of years of accumulated greenhouse gas emissions, while the defendants are allegedly responsible for 2.5 percent of current global carbon dioxide emissions, a percentage that decreases every day.  At most, the AEP plaintiffs have alleged that their requested relief would reduce the threat that they would be harmed by global climate change, but the Supreme Court should avoid decisions that border on pure policy pronouncements, untethered from the rights and obligations of the particular parties before the court.  Making symbolic gestures may be an action that is fit for political branches, but is fundamentally inconsistent with the proper constitutional role of Article III courts.

Taken as a whole, AEP is the archetype of a case that is not fit for judicial resolution.  While the defendants should prevail on all of the legal issues on which the Supreme Court granted certiorari, the case is particularly appropriate for a robust application of the political question doctrine.  The Supreme Court has never articulated an exhaustive list of situations in which the political question doctrine applies, but federal courts have in the past applied the political question doctrine to common law claims where appropriate.  See Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271 (11th Cir. 2009); Corrie v. Caterpillar, Inc., 503 F.3d 974 (9th Cir. 2007); Antolok v. United States, 873 F.2d 369, 383 (D.C. Cir. 1989) (Sentelle, J.); Occidental of Umm al Qaywayn, Inc. v. A Certain Cargo of Petrol., 577 F.2d 1196, 1203 (5th Cir. 1978); Chaser Shipping Corp. v. United States, 649 F. Supp. 736, 738 (S.D.N.Y. 1986), aff’d, 819 F.2d 1129 (2d Cir. 1987).  Taken as a whole, the only reasonable conclusion is that, as held by the district court, AEP presents a matter that is not fit for judicial resolution.

No Reason to Extend Federal Common Law. 

Underscoring the lower courts’ and parties’ consideration of this dispute is the implicit assumption that AEP represents a potential application of the long-dormant federal common law governing interstate pollution disputes, as articulated in such cases as Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907), and Illinois v. Milwaukee, 406 U.S. 91 (1972).

But global climate change differs not only in degree but in kind from the type of simple disputes that have given rise to federal common law remedies.  The Supreme Court has never found a public nuisance where:  (a) the alleged nuisance is a global environmental phenomenon arising out of every aspect of human activities that, in the aggregate, sustain our civilization; (b) the overwhelming majority of emitters are located outside the United States and beyond federal court jurisdiction; (c) a federal remedy is unlikely to have any meaningful effect on the plaintiffs’ alleged injuries; and (d) every person in the world contributes, in one degree or another, to the global phenomenon.  Indeed, any one of these factors could possibly defeat a common law nuisance claim; AEP presents all four.

If it reaches the issue, the Supreme Court should confirm that federal common law is cabined to discrete interstate pollution disputes that are similar in kind and scope to those addressed in Milwaukee, Tennessee Copper, and the other cases in the Supreme Court’s jurisprudence.  It is also relevant here that federal common law is disfavored, and “cases in which judicial creation of a special federal rule would be justified . . . are few and restricted.”  O’Melveny & Myers v. FDIC, 512 U.S. 79, 87 (1994).  That is why there is a federal common law remedy for violations of some customary international norms but not others.  See Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).  Similarly, there is a federal common law damages remedies for constitutional violations only by certain federal actors but not others.  See Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 67-68 (2001).

Recognizing a federal common law remedy in this case would also implicate significant constitutional concerns.  Legislative power is vested in Congress, not the Judiciary, see U.S. Const. Art. I, sec. 1, and “[i]t is emphatically the duty of the Judicial Department to say what the law is,” and not what it ought to be, Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).  In light of the Constitution’s distribution of powers, federal common law rulemaking is legitimate only through an implicit delegation of authority by Congress to the judiciary in limited enclaves of federal interest.  See Tex. Indus. v. Radcliff Materials, Inc., 451 U.S. 630 (1981).  Yet Congress has delegated to EPA the authority, but not necessarily the obligation, to regulate greenhouse gas emissions under the Clean Air Act as appropriate.  See Massachusetts, 524 U.S. 497.  Absent a specific indication to the contrary, the Court should not presume that Congress intended it to exercise concurrent judicial lawmaking authority.

No Standing To Request Futile Relief. 

Another critical issue is whether, and to what extent, the Supreme Court’s decision in Massachusetts supports the plaintiffs’ allegations of Article III standing.  The procedural posture of Massachusetts was distinct from that in AEP.  In the former case, the state plaintiffs petitioned for review of an EPA decision refusing to propose light-duty motor vehicle standards under Clean Air Act sec. 202 at that time in response to an administrative petition for rulemaking.  As such, the plaintiff states were entitled to avail themselves of the relaxed criteria for procedural standing the Court articulated in Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992).  The plaintiffs in AEP are, however, requesting a specific injunctive remedy.  They allege that their requested emission reductions would cause the defendant electric utilities to make “their share of the carbon dioxide emission reductions” (emphasis added).  The plaintiffs effectively concede that under their theory of the case, they would only receive relief if this action were paralleled by other significant greenhouse gas emission reductions occurring in other arenas, beyond the authority of AEP’s court or, for that matter, of any federal district court.

And while it may be the business of agencies to “whittle away at [problems] over time” to achieve ultimate result, Massachusetts, 549 U.S. at 524, the idea that litigants have standing to require courts to “whittle away at” global warming raises serious constitutional and prudential concerns.  Under this view of the law, AEP would be nothing more than the first salvo in ongoing litigation, and it is a great leap from the Supreme Court’s view that greenhouse gas emissions may merit further agency consideration to the conclusion that the Court wished to encourage a flood of nuisance suits.  To the contrary, the Supreme Court’s recent jurisprudence has recognized the difficulties such profligate litigation raises.  See, e.g., Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558-59 (2007).


Allowing the mass tort litigation model to govern climate change litigation has proven too tempting for some federal judges who take an expansive view of the judicial role.  Published reports indicate that Judge Peter Hall, author of the Second Circuit’s decision in AEP, has stated that he “hopes the ruling and others like it will pressure both the executive branch and Congress to implement climate policies, because its burdensome ‘nuisance action by nuisance action’ approach is hanging over their heads like a ‘sword of Damocles.'”  Key Judge Downplays Prospects for Successful Climate Damages Suits, INSIDE EPA, Mar. 5, 2010, at 18.  If the Supreme Court recognizes a federal common law nuisance action over something so ubiquitous as global carbon dioxide emissions, and if it brushes off inherent jurisdictional defects of such an action, it will open the door to further judicial meddling in the affairs of the political branches.  Given the boundless nature of this litigation–all individuals are potential plaintiffs, all are potential defendants, all activity is a cause–failing to reverse the Second Circuit may do more to entrench the “rule of judges” than previous much-criticized judicial “activism” on social and cultural matters.

Mark W. DeLaquil is an associate with the law firm Baker & Hostetler LLP specializing in environmental regulatory proceedings and litigation.  David B. Rivkin, Jr. is a partner at Baker & Hostetler LLP and co-chairs the firm’s Major Motions and Appellate Litigation team.  He specializes in constitutional and environmental litigation.  Messrs. Rivkin and DeLaquil submitted amici curiae briefs on behalf of legal academics in support of the Petitioners at the Petition for Certiorari stage and on the merits.



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