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Future of Federal Climate Change Law Remains Uncertain

In American Electric Power v. Connecticut, 131 S. Ct. 2527 (2011), the United States Supreme Court rendered its first decision on climate change since the Court's landmark decision in Massachusetts v. EPA, 549 U.S. 497, 127 S. Ct. 1438 (2007). In Massachusetts, the Supreme Court held that the Clean Air Act, 42 U.S.C. § 7401 et seq., authorizes federal regulation of emissions of carbon dioxide and other greenhouse gases. Massachusetts held that the United States Environmental Protection Agency (“EPA”) had misread the Clean Air Act when it denied a rulemaking petition seeking controls on greenhouse gas emissions from new motor vehicles. Due to the fact that the EPA had authority to set greenhouse gas emission standards and had offered no reasoned explanation for failing to do so, the Supreme Court held that the EPA had not acted in accordance with law when it denied the requested rulemaking. Following Massachusetts, the EPA commenced rulemaking under § 111 of the Clean Air Act to set limits on greenhouse gas emissions from new, modified, and existing fossil-fuel fired power plants. The EPA has committed to issuing a final rule by May 2012.

The consolidated lawsuits considered in American Electric Power v. Connecticut presented the Court with the question of whether federal courts may consider public nuisance suits based on harm allegedly caused by greenhouse gas emissions. These suits began prior to the EPA's commencement of a rulemaking process under the Clean Air Act to set greenhouse gas emissions and prior to the Court's decision in Massachusetts. The Plaintiffs (eight States, New York City, and three non-profit land trusts) argued that they were harmed by Defendants' (five major electric power companies) contributions to greenhouse gas emissions and sought a decree setting carbon-dioxide emissions for each Defendant at an initial cap, to be further reduced annually. The Court affirmed courts' jurisdiction over such suits in a 4-4 split, but reached a unanimous conclusion that the Plaintiffs' nuisance claims were displaced by the Clean Air Act and EPA action, and were therefore not appropriate for judicial resolution. In so holding, the Supreme Court reiterated that emissions of carbon dioxide qualify as air pollution subject to regulation under the Clean Air Act. However, the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.

With May 2012 right around the corner, it will be interesting to see how the EPA regulates greenhouse gas emissions and how those regulations will impact both citizens and businesses in New Jersey and beyond. Moreover, American Electric Power gives some insight into how the Court intends to deal with climate change suits in the future. For more information, a copy of American Electric Power v. Connecticut is available by clicking here.

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