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Wednesday, April 20, 2011
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American Electric Power v. Connecticut: The Good News

By Guest Author, Douglas Kysar

This post by Yale Law School Professor Doug Kysar was originally published on the American Constitution Society website and is reprinted here with permission.

In one of the most, er, hotly anticipated cases of its term, the Supreme Court yesterday heard arguments in the climate change nuisance suit of Connecticut v. American Electric Power. From the beginning of this litigation, pundits have questioned the plaintiffs’ decision to seek injunctive relief gradually abating the defendants’ greenhouse gas emissions. To critics, this form of relief – as opposed to, say, monetary damages – seems to highlight the complex and value-laden aspects of climate change as a policy problem, making judges more likely to dismiss the suit as lying beyond the ken of the judicial branch.

Yesterday morning’s argument confirmed the pundits’ view, as even reliably liberal justices like Ruth Bader Ginsburg greeted the plaintiffs’ claims with palpable skepticism. Justice Ginsburg’s money quote, which is being cited around the blogosphere, came when she told the plaintiffs that their prayer for relief “sounds like the kind of thing EPA does.” Justice Kagan quickly piled on: “It sounds like the paradigmatic thing that administrative agencies do rather than courts.” Justice Breyer, ever the policy wonk, wondered aloud whether “the courts [can] set a tax” because, in his words, from “what I get from reading, these [carbon taxes] might be the best way to deal with the problem.”  (Answer: Courts set implicit harm taxes every day in the form of monetary tort awards. Bonus Answer: The Clean Air Act might well be a great way to deal with the problem, as the benefits of emissions permits have been oversold and the likelihood of a carbon tax passing Congress is nil).  For her part, Justice Sotomayor was nowhere to be found since she had recused herself from the case, even though she would have been within ethical guidelines to stay involved.

With friends like these, environmentalists might be forgiven for asking themselves, who needs Scalia?  Well, actually, even the reliably conservative Justice Scalia surprised observers this morning with just how conservative he could be. Throughout the oral argument, Scalia brazenly asked the electric utilities’ lawyer for suggestions on how to use this case to prevent climate change tort suits in both federal and state courts. (Answer: There is no appropriate way because the question of state common law climate change claims has not been raised in the present suit).  

So is there any good news for environmentalists and other progressives from yesterday's argument?  Surprisingly, yes. Let’s be honest with ourselves: Ever since the Supreme Court granted review in this case, speculation has focused not on whether the plaintiffs will lose, but on how they will lose. The narrowest ground for reversal would be on displacement, i.e., a ruling that the Clean Air Act and the EPA’s halting efforts to implement that statute with respect to greenhouse gas emissions work to effectively block federal courts from using common law principles to address climate change. The two other arguments in play – that the plaintiffs lack standing to press their claims or that their claims constitute political questions beyond the power of the court – would be much more disastrous for progressive causes if they received the blessing of the Supreme Court. They would make available new all-purpose broadsides against any tort litigation in federal court, requiring every injured party to first prevail against these arguments before they could even begin to press their claims against wrongdoers.  Arming defendants with these new SCOTUS-branded clubs would further tilt an already uneven litigation battlefield against tort claimants.

The good news, then, is that the justices were most keenly focused on displacement in their questioning, rather than on standing or political question. Apart from Justice Scalia, the justices seemed uninterested in dismissing the case on Article III standing grounds or on taking the Acting Solicitor General’s prudential standing bait. The latter resolution would be particularly pernicious as it would essentially invite judges to dismiss a case whenever they felt like it. Chief Justice Roberts appropriately swatted the argument away by noting that it “cuts off our jurisdiction at our own whim, as opposed to dealing with this on the merits.” Likewise, the political question doctrine barely made an appearance during the oral argument. Even the conservative justices seemed to recognize that the political question doctrine doesn’t really belong in the context of tort law claims. Like standing, it was developed for a much different context than common law adjudication, as I have argued with Benjamin Ewing in a forthcoming article.

Both standing and political question doctrine are crude substitutes for the merits of common law claims, a fundamental point that the all-important Justice Kennedy acknowledged throughout the argument.  (My favorite example, in response to a claim that the plaintiffs’ injunction would not solve climate change: “Well, again, that just goes to the merits. You make that argument to the district court that your injunction is meaningless, equity does not require an idle act. End of case.”).

So the good news is: We may lose this one, but at least we will lose in the least bad way.

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