This week the U.S. Supreme Court released its long-awaited decision in American Electric Power v. Connecticut, resolving whether states can sue greenhouse gas emitters under a theory of common law nuisance. By a count of 8-0, the Court overturned a ruling from the Second Circuit and held that these lawsuits are improper and cannot move forward. Justice Sotomayor did not participate because she sat on the Second Circuit when that court decided this case.
The Court did find that the “environmental benefit potentially achievable, our Nation’s energy needs and the possibility of economic disruption must weigh in the balance” when considering greenhouse gas regulations. However, instead of completely dismissing the idea they instead relied on a legal concept called displacement to find that because the EPA is moving to regulate GHGs the federal government has providence on the issue and thus common law nuisance suits are barred. This holding is both a blessing and a curse.
The Court doubled down on its flawed finding in Massachusetts v. EPA that Congress somehow authorized these GHG regulations in the Clean Air Act. Justice Ginsberg wrote, “the critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law [nuisance suits].” Justices Alito and Thomas wrote a concurring opinion expounding that they agreed with displacement theory only because no one in the case bothered to challenge the idea that EPA has the authority to regulate GHGs.
This decision does grant the economy a short reprieve from trial lawyers and environmental action groups that were chomping at the bit to haul GHG emitters into court seeking damages for the perceived harm of globally-mixed gases that are emitted by nearly every act of human existence, economic and otherwise. Conversely, it strengthens the hand of EPA bureaucrats who successfully invented authority to regulate global warming thanks to a novel legal theory from Carol Browner and now bolstered by two Supreme Court decisions: Massachusetts v. EPA and AEP v. Connecticut.
Congress must step in and clarify that it never gave EPA any authority to regulate GHGs and the Supreme Court was wrong in twice claiming that it did. Congress must also clearly state that courts are the wrong venue to set climate policy and that there is no common law nuisance action for emitting GHGs.
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