American Electric Power Co., Inc. v. Connecticut

PETITIONER: American Electric Power Company Inc., et al.
RESPONDENT: Connecticut, et al.
LOCATION: Superior Court of California, Superior Justice Center

DOCKET NO.: 10-174
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 564 US (2011)
GRANTED: Dec 06, 2010
ARGUED: Apr 19, 2011
DECIDED: Jun 20, 2011

Barbara D. Underwood - Solicitor General of New York, for the respondents
Neal Kumar Katyal - Acting Solicitor General, Department of Justice, for the respondent Tennessee Valley Authority in support of the petitioners
Peter D. Keisler - for the petitioners

Facts of the case

Eight states, New York City and three land conservation groups filed suit against four electric power companies and the Tennessee Valley Authority, five entities that they claimed were the largest sources of greenhouse gases. The lawsuit alleged that the utility companies, which operate facilities in 21 states, are a public nuisance because their carbon-dioxide emissions contribute to global warming. American Electric Power Co. and the other utilities argued that the courts should not get involved in the issue. The companies contended that only the Environmental Protection Agency can set emissions standards. A federal judge on the U.S. District Court for the Southern District of New York initially threw out the case, but the U.S. Court of Appeals for the Second Circuit said it could continue.

The states in the lawsuit are: California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin. The Open Space Institute, the Open Space Conservancy and the Audubon Society of New Hampshire also are plaintiffs. The other utilities are Cinergy Co., Southern Co. Inc. of Georgia, and Xcel Energy Inc. of Minnesota.


(1) Can states and private parties seek to curb emissions on utilities for their alleged contribution to global climate change?

(2) Can a cause of action to reduce carbon dioxide emissions be implied under federal common law?

Media for American Electric Power Co., Inc. v. Connecticut

Audio Transcription for Oral Argument - April 19, 2011 in American Electric Power Co., Inc. v. Connecticut

Audio Transcription for Opinion Announcement - June 20, 2011 in American Electric Power Co., Inc. v. Connecticut

Ruth Bader Ginsburg:

Does the federal common law of public nuisance authorize suits by states, cities and private parties to abate carbon dioxide emissions on the theory that they contribute to global warming?

That is the question this case presents.

The plaintiffs below, respondents here, several states New York City and three private land trusts, the defendants below, petitioners here, are five major electric power companies including the Federal Tennessee Valley Authority, alleging that the five power companies of the largest emitters of carbon dioxide in the nation, the plaintiffs filed suit for injunctive relief in the Federal District Court in New York.

They asked the Court to set carbon dioxide emissions limits for each defendant at an initial cap and to order further reductions annually.

The District Court dismissed the litigation holding that the plaintiffs had come to the wrong forum.

They were raising political questions the judge said, this is properly address by the legislative and executive branches of government not by the judiciary.

The Court of Appeals for the Second Circuit reversed.

The Appeals Court held first that neither the political question doctrine nor any Article III standing to sue barrier blocked the litigation.

On the merits, the Second Circuit held that the litigation could move forward in federal court because the plaintiffs had stated the claim under federal common law that is law developed by judges' overtime case by case.

In reaching this determination, the Court of Appeals relied on decisions of this Court allowing the state to maintain the suit for abatement of air pollution emanating from outside the state but traveling into it.

On the jurisdictional question, this Court is evenly divided.

Four of us would find no threshold barrier to sue while four withhold that the plaintiffs lack Article III standing to sue.

We therefore follow our standard practice on four-to-four splits.

We affirm the Court of Appeals exercise of jurisdiction but we issue no opinion on the point and our disposition of the question carries no weight as precedent.

On the merits however, we reverse the Second Circuit's judgment.

We did not decide whether this Court's reasoning in prior interstate business suits would carry over to a claim seeking abatement of carbon dioxide emissions for any such claim we hold would be displaced by the Clean Air Act.

The justification for federal common law disappears, our decisions explained when Congress steps in and addresses the question until then prop of a federal common law governments.We think this case fits that description.

In Massachusetts, the EPA, we held that the Clean Air Act entrusted regulation of carbon dioxide emissions to an expert administrative agency, the Environmental Protection Agency, the EPA's authority under the Clean Air Act, which is carbon dioxide emissions from power plants like those the defendants operate.

In fact, the EPA is currently engaged in the rulemaking to decide whether the agency should set limits on emissions from domestic power plants.

The Clean Air Act in our judgment leaves no room for a parallel tract -- track that is notwithstanding the regulatory authority of the expert agency, control of greenhouse gas emissions by federal judges employing judge made federal tort law.

We have before us to put it plainly, who decides question executive agency pursuant to congressional delegation or court?

The Second Circuit held that federal common law is not displaced unless and until the EPA actually exercises this regulatory authority by setting limits on carbon dioxide emissions from the defendants' plants.

We disagree.

The critical point is that Congress has vested decision maker -- decision making authority in the EPA.

If the plaintiffs are dissatisfied with the EPA's decision, the plaintiffs may seek court review of the agencies rulemaking under procedures prescribed by the Clean Air Act.

But the plaintiffs cannot bypass the EPA's rulemaking and activate in the first instance judicial resolution of the matter.

The plaintiff's also raised claims under state tort law.

The courts below did not address the potential governance of state law because we are a court of review.

In that first view, we remand the state law claims so that the lower courts can take them up in the first instance.

Justice Alito has filed an opinion concurring in part and concurring in the judgment in which Justice Thomas joins.