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Several states and land trusts had filed suit against five major power plants to limit carbon dioxide emissions, relying on federal and state common law on public nuisance. Those power plants collectively account for 10% of the United States’ carbon dioxide emissions. In June, the Supreme Court held in American Electric Power Co. v. Connecticut that the Clean Air Act—and the Environmental Protection Agency’s (EPA) authority to regulate greenhouse gas emissions under that Act—displaces the states and land trusts’ federal common-law claims.

The Center and the Obama administration supported the Supreme Court decision.  Other environmental groups opposed the decision.  Our reasoning is that it is better to have authority at EPA than the courts.  EPA is much more qualified to make decisions on climate than courts.  Other environmental groups wanted more room to sue.  However, if Congress kills EPA's regulatory authority in this area, the plaintiffs could potentially reinstate their federal common-law claims.

The district court had dismissed the case on the grounds that it presented a political question that was up to Congress to resolve, not the courts. The Second Circuit reversed and had allowed the case to proceed.  If the Supreme Court followed its decision in Massachusetts v. EPA—which held that the Clean Air Act covers greenhouse gas emissions and allows states to challenge EPA’s refusal to regulate greenhouse gas emissions—it would find that the plaintiffs had the kind of injuries needed to give them standing to bring the case.

The Court affirmed that the plaintiffs have standing to pursue their claims if Congress were to prevent EPA from carrying out its Clean Air Act mandate -- the plaintiffs could potentially reinstate their federal common-law claims. So the Court’s decision does not rule out future global warming lawsuits based upon state claims. Though the plaintiffs cannot continue to bring their federal nuisance claims, the Court did not dismiss their state nuisance claims.  (Public Justice Newsletter, Summer 2011)