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2010-2011 Supreme Court Term: Decision in American Electric Power Co. v. Connecticut

by Professor Will Huhn on June 23, 2011

in Constitutional Law,Standing,Wilson Huhn

On Monday the Supreme Court released its decision in American Electric Power Co. v. Connecticut.   The Court decided nothing of constitutional importance but it did clarify one point of federal environmental law.

In this case several states sued out-of-state power companies for the damages caused by climate change as a result of the greenhouse gases emitted by those industries.  They brought suit not under the Clean Air Act but rather under the common law – the federal common law of interstate nuisance and state tort law.

The single most significant constitutional issue that this case presented was whether the states have standing to sue the power industry on account of pollution.  In Massachusetts v. EPA the Supreme Court had ruled that the states have standing to challenge the failure of the Environmental Protection Agency to take action against greenhouse gases.  In this case, four justices from the majority in Massachusetts v. EPA voted that the states in this case also have standing against private power companies, and the four dissenters from Massachusetts v. EPA maintained their position that the states lack standing.  Justice Sotomayor did not participate in this decision.  Accordingly, by a vote of 4-4 the Supreme Court affirmed the lower court ruling that the states have standing. 

However, on the environmental law question the Supreme Court held that the Clean Air Act preempts the federal common law of nuisance, and accordingly the states lost on that point.  The Court did not reach the question of whether the state law of tort is preempted by the Clean Air Act, and the case was remanded to the lower courts for a ruling on that issue.

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