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The Supreme Court’s AEP Decision: Snatching Climate Change Solutions Victory From the Jaws of Defeat

September 2011

Citation: 41 ELR 10793

Issue: 9

Author: Howard A. Learner

In today’s politically polarized environment, legislative and judicial actions tend to be characterized as either stunning victories or crushing defeats. The next-day media reporting and hyperbolic press releases on the U.S. Supreme Court’s American Electric Power et al. v. Connecticut et al. (AEP) decision involving actions to reduce greenhouse gas pollution reflect this trend. Certainly, the U.S. Chamber of Commerce was correct in declaring victory on the Court’s holding that the Clean Air Act displaces federal common-law claims asserted by states and other plaintiffs seeking to limit carbon dioxide pollution from coal plants. The Court’s decision and its future impacts, however, are much more nuanced and hopeful for environmental progress. For environmental and public health advocates, there is much victory to be snatched from the jaws of the generally expected defeat on the federal common- law displacement issue.

Howard A. Learner is President and Executive Director of the Environmental Law & Policy Center and an adjunct professor at the University of Michigan Law School and Northwestern University Law School.

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