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American Electric Power Co. v. Connecticut

ELR Citation: 41 ELR 20210
Nos. No. 10-174, (U.S. , 06/20/2011)

The U.S. Supreme Court held that the CAA displaces any federal common law right to seek abatement of carbon dioxide (CO2) emissions from fossil-fuel fired power plants. A group of states, private land trusts, and a city a filed suit against four power companies and the TVA claiming that their emission of CO2 and other greenhouse gases and their impact on global climate change substantially and unreasonably interfered with public rights in violation of the federal common law of interstate nuisance or, in the alternative, of state tort law. Although the lower court correctly ruled that the plaintiffs had standing and that the political question doctrine did not apply, it erred in ruling that the plaintiffs had stated a claim under the federal common law of nuisance. Congressional legislation excludes the declaration of federal common law where the statute "speaks directly" to the question at issue. Here, the Supreme Court's decision in Massachusetts v. EPA, 549 U.S. 497 (2010), made plain that emissions of CO2 qualify as air pollution subject to regulation under the CAA. And because the CAA provides a means to seek limits on emissions of CO2 from domestic power plants--the same relief the plaintiffs seek by invoking federal common law--it is equally plain that the Act "speaks directly" to emissions of CO2 from the defendants' plants. The plaintiffs argued that federal common law is not displaced until EPA actually exercises its regulatory authority by setting emissions standards for the defendants' plants. But the relevant question for displacement purposes is "whether the field has been occupied, not whether it has been occupied in a particular manner." If EPA does not set emissions limits for a particular pollutant or source of pollution, states and private parties may petition for a rulemaking, and EPA's response will be reviewable in federal court. But there is no room for a parallel track. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C.J., and Scalia, Kennedy, Breyer, and Kagan, JJ., joined. Alito, J., filed an opinion concurring in part and concurring in the judgment, in which Thomas, J., joined. Sotomayor, J., took no part in the consideration or decision of the case.