From: Jonathan Kalmuss-Katz, Sive Paget & Riesel, P.C., More from this Affiliate
Published December 7, 2010 08:56 AM

Supreme Court Grants Review in Key Climate Change Lawsuit

On December 6, the Supreme Court granted review of the climate change climate tort suit Connecticut v. American Electric Power ("AEP"), setting the stage for a major decision on the availability of common law remedies for climate-related harms. Justice Sonia Sotomayor, who presided over oral arguments in the case while a judge on the Second Circuit, did not participate in the Supreme Court's consideration of the petition for review. Justice Sotomayor is expected to recuse herself when the case comes before the Court.


The case arises out of a 2004 suit filed by eight states (including New York), three land trusts and New York City against five electric utilities and one of their subsidiaries, alleged to be the "five largest emitters of carbon dioxide in the United States." The plaintiffs claimed that the power companies' greenhouse gas (GHG) emissions constituted a public nuisance under federal common law and the common law of 20 states where the defendants operated power plants, and sought an injunction requiring "each defendant to ... cap its carbon dioxide emissions and then reduce them by a specified percentage each year ..."

In 2005, United States District Judge Loretta A. Preska dismissed the suit under the political question doctrine, reasoning that the policy determinations required to set and implement a GHG emissions cap were of the type reserved for Congress and the President. Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 272 (S.D.N.Y. 2005), vacated and remanded 582 F.3d 309 (2d Cir. 2009). In a footnote, the Court withheld judgment on whether the plaintiffs would have been able to establish standing to bring their suit. Id. at 271, n. 6.

The Second Circuit heard an appeal from the dismissal order in 2006, with then-Circuit Court Sotomayor sitting on the three-judge panel. Following a three-year delay and Sotomayor's nomination to the Supreme Court, the remaining two judges reversed the District Court and remanded the case for further consideration, ruling that: (a) the suit was not barred by the political question doctrine, (b) the plaintiffs had standing to litigate the dispute, and (c) the common law claims had been not been displaced by EPA's then-unfinalized proposals to regulate GHGs under the Clean Air Act. Connecticut v. Am. Elec. Power Co., 582 F.3d 309 (2d Cir. 2009).

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