Supreme Court To Decide Fate Of Global Warming Litigation In American Electric Power Co. v. Connecticut

On December 6, 2010, the Supreme Court granted certiorari in American Electric Power Co. v. Connecticut, a federal nuisance case on appeal from the Second Circuit. Plaintiffs -- eight states, the City of New York and three non-profit land trusts -- seek abatement and reduction of greenhouse gas emissions from defendants, who include some of the United States’ largest electric utility companies. The Second Circuit ruled that: (1) the case did not present a non-justiciable political question, (2) the plaintiffs have standing, (3) the plaintiffs stated claims under the federal common law of nuisance, (4) the plaintiffs' claims are not displaced by the Clean Air Act ("CAA"), and, finally, (5) the Tennessee Valley Authority (“TVA”), a quasi-governmental defendant, is not immune from the suit. See Connecticut v. American Electric Power Co., 582 F.3d 309 (2nd Cir. 2009). This article summarizes the Second Circuit's lengthy decision, the implications of such, and the impending Supreme Court review.

A. Background

The Plaintiffs in the case consist of eight States, the City of New York, and three non-profit land trusts that "acquire and maintain ecologically significant and sensitive properties for scientific and educational purpose, and for human use and enjoyment" (the "Trusts"). Plaintiffs sued multiple electric power corporations that own and operate fossil-fuel-fired power plants in twenty states (the "Defendants"), under the federal common law of nuisance, and under state nuisance law in the alternative. Specifically, the complaints allege that Defendants are contributing significantly to the global warming crisis which, in turn, is causing Plaintiffs extensive current and future injuries. Plaintiffs seek to force Defendants to cap and then reduce their carbon dioxide emissions.

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