Carbon Dioxide Emissions Not Subject to Federal Common Law Nuisance Claims

In the battle over climate change, the Supreme Court once again set an important precedent in American Electric Power Co., Inc. v. Connecticut (“American Electric Power”). In an 8-0 decision written by Justice Ginsburg (Justice Sotomayor recused herself, presumably because she heard the matter while sitting on the Second Circuit), the Court held that Congress's delegation of the power to regulate greenhouse gasses to the Environmental Protection Agency (“EPA”), "displaces federal common law" relating to the abatement of carbon dioxide ("CO2") emissions.

Plaintiffs (eight states, a city, and three land trusts) brought federal common law public nuisance claims seeking injunctive relief against five of the largest carbon emitters in the United States (four private power companies and the federal Tennessee Valley Authority). Plaintiffs alleged that by collectively providing 2.5% of anthropogenic carbon emissions worldwide, defendants were contributing to global warming, which, in turn, resulted in a "substantial and unreasonable interference with public rights." Plaintiffs argued that federal common law could not be displaced by the Clean Air Act (“CAA”) because the EPA had yet to create rules regulating CO2 emissions.

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