Tuesday, April 19, will be a watershed day for climate change litigation as the U.S. Supreme Court hears oral argument in American Electric Power v. Connecticut. At stake is whether states and private parties should be allowed to bring common law nuisance claims against utilities for their greenhouse gas ("GHG") emissions. While the authority of the federal Environmental Protection Agency to regulate GHG emissions is not directly at issue, the case will implicate the Court's 2007 decision in Massachusetts v. EPA, which held that GHG emissions are a pollutant under the Clean Air Act and that states have standing to challenge inaction by the federal government. Meanwhile, the elephant in the courtroom, so to speak, are the continuing efforts in Congress to curb the EPA's adoption of regulations addressing climate change issues.
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