Earlier this week, the U.S. Supreme Court issued a unanimous decision in American Electric Power (AEP) Co. v. Connecticut (8-0, with Justice Sotomayer recused) holding that the Clean Air Act displaces federal common law with regard to nuisance claims for alleged injuries from greenhouse gas emissions. While any decision from the nation’s highest court on our most complex and challenging environmental issue is worth noting, this ruling was expected and doesn’t really change the legal or political landscape regarding climate change.
For background on the case, see this previous guest post on climate change torts. Tort claims (involving harm to property from pollution) are typically brought under state law, and the Supreme Court made clear that its decision does not apply to such state law claims. The AEP decision simply holds that federal common law claims are “displaced” by the federal Clean Air Act, which the U.S. Supreme Court has ruled applies to greenhouse gas emissions. The Court also, to some extent, rejected the polluters’ legal arguments regarding standing and political question, making clear that federal courts have jurisdiction to hear these cases.
In the big picture of climate change law, this case is really not a big deal. Climate change won’t be solved with tort law, and federal common law has always been a tenuous legal doctrine. The decision does not address the merits of the climate change debate; it simply says that Congress and the administrative agencies (notably the U.S. EPA) have left no role for federal common law in deciding liability rules for greenhouse gas emissions. While many of us are frustrated by the lack of action on this issue in Congress and the EPA, a comprehensive solution to climate change can only come from those branches of the federal government.
