Defendants Win "Round One" of Climate Change Fight in United States Supreme Court

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In American Electric Power Co. v. Connecticut (“AEP”), the United States Supreme Court held that federal common law public nuisance claims seeking injunctive relief against emitters of greenhouse gases (“GHG”) were displaced by the Clean Air Act (“CAA”) and EPA’s regulatory implementation of the Act’s provisions. In hindsight, this holding seems an inevitable outgrowth of Massachusetts v. EPA, 549 U.S. 497 (2007), which held that GHGs are pollutants subject to CAA regulation. Building on that precedent in a unanimous 8-0 opinion, the AEP Court gave the defendant utility companies a clear-cut victory by precluding judicial direct regulation of GHG through tort litigation.

Despite the Supreme Court’s mandate, it is premature to declare victory over all climate change litigation based on common law public nuisance.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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