Supreme Court Holds Federal Courts Do Not Have Jurisdiction to Hear Federal Common Law Nuisance Claims Relating to Greenhouse Gas Emissions

by Schnader Harrison Segal & Lewis LLP
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The United States Supreme Court, in an 8–0 decision (Justice Sotomayor did not participate) written by Justice Ginsburg, ruled on June 20, 2011 that federal common law nuisance claims are not available as a means to impose greenhouse gas limits on fossil-fueled power plants. American Electric Power Co. v. Connecticut et al. This is a logical result flowing from the Court’s 2007 decision in Massachusetts v. EPA, where it held that the Environmental Protection Agency (“EPA”) had the authority to regulate greenhouse gases under the Clean Air Act. The American Electric Power decision holds that the regulatory avenue established by the Massachusetts decision is the only avenue available under federal law to pursue limits on greenhouse gas emissions — even though the EPA has not yet used its regulatory power to impose any emissions caps.

By invoking the doctrine of displacement, the Court decided the case on the narrowest possible grounds. The Court divided 4–4 on the important issue of whether the plaintiffs had standing to sue under Article III of the Constitution, i.e., whether they could demonstrate the existence or possibility of a judicially redressable harm. This meant that the Second Circuit finding of standing, and its jurisdiction, were upheld. Because it was not considered by the appeals court, the Court did not decide whether the plaintiffs could continue to pursue climate change claims based on state common law.

Defeat for Plaintiffs in the District Court

In 2004, eight states and three nonprofit land trusts filed two separate suits in the Southern District of New York against four private power companies and the Tennessee Valley Authority. The plaintiffs’ complaints claimed that the five defendants were responsible for 25 percent of the carbon dioxide emissions resulting from all United States electric power generation and 2.5 percent of anthropogenic emissions of greenhouse gas worldwide. The plaintiffs sought injunctions to cap the defendants’ carbon dioxide emissions and reduce them by a set amount each year for a decade. The district court dismissed both suits as being barred by the political question doctrine.

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