The Supreme Court’s AEP vs. Connecticut: A Case of “What Will Kennedy Decide”?
Yet again, climate law watchers – those who want greenhouse gas (“GHG”) emissions further reduced, as well as those who would be most affected by additional air regulations – are holding their breath, waiting for the Supreme Court to issue its decree. Four years ago, such watchers waited with bated breath as the high court considered the issue of whether GHG emissions from vehicles could be regulated under the Clean Air Act. The result? The seminal April 2, 2007 Massachusetts v. EPA decision, which shifted the regulatory landscape in the U.S. by paving the way for greenhouse gas emissions to be regulated for the first time. Because of the Massachusetts decision, vehicle manufacturers and large utilities and manufacturers – including entities who never have been subjected to air restrictions before – now face regulation of their GHG emissions. The regulatory landscape has vastly changed.
Now pending before the Court, in a case styled American Electric Power Company v. Connecticut that originated with eight states, one city and three private trusts suing several power companies, is another question that can significantly change the way entities that have any sort of combustion process – and thus produce GHGs – do business and manage their liability risks. The precise question before the Court is whether those who emit GHGs can be sued by states, municipalities and private entities under the federal common law of nuisance. The Second Circuit – the federal appellate court overseeing federal district courts in New York, Connecticut and Vermont – found that, yes, such lawsuits are allowed. If the Supreme Court agrees, the consequences would be far-reaching and complex.
The Supreme Court heard oral argument in this case on April 19th but has not yet issued its decision; that decision is expected by the end of June. As we await the Court outcome, this article offers some food for thought: Just what did the Second Circuit panel decide, and has anything changed since that decision? What predictions can be made about how the Court might rule – will it be up to Justice Kennedy, who frequently casts the swing vote? And if the Second Circuit decision is allowed to stand, what might the real-world consequences be, especially considering some of the unique and particularly-complicating aspects of climate change? But first, for anyone not well-steeped in environmental law or well-versed in the complications of the climate change phenomenon, this article offers a primer on climate change regulation to date.
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