The Good, the Bad, and the Ugly in the AEP v. CT Opinion

by Ben Somberg

June 21, 2011

CPR Member Scholar Doug Kysar has a post over at Nature with more analysis on the Supreme Court's ruling this week in the American Electric Power v. Connecticut case. Writes Kysar:

The court went out of its way to emphasize that federal common-law actions would be barred, even if the EPA decides not to regulate greenhouse-gas emissions. In other words, the fact that the agency has authority under the Clean Air Act — even if it chooses not to exercise it — was enough, in the court's view, to cut the judiciary out of the equation, stating, "We see no room for a parallel track."

The problem with this is that the US system of limited and divided government is a web of interconnected nodes, not a row of parallel tracks. The courts should understand that part of judges' role is to prod and plea with other government branches, which may be better placed to address an area of societal need, but are less disposed to try.

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