Parsing the AEP v. Connecticut Argument: Did the Court Ask the Right Questions?

by Alice Kaswan | April 21, 2011

The Supreme Court arguments in American Electric Power Company v. Connecticut on Tuesday raised profound issues about the respective role of the courts and administrative agencies in controlling greenhouse gas emissions from stationary sources, emissions that remain uncontrolled notwithstanding their significant climate impacts. As my CPR colleague Doug Kysar has noted, at times the Court appeared reluctant to embrace industry’s political question and prudential standing arguments, arguments that would undermine the courts’ traditional common law powers. If the Court rejects these jurisdictional arguments, the central issue would be whether EPA’s GHG regulatory actions under the Clean Air Act have “displaced” the federal common law of interstate nuisance.

If displacement is the critical issue, did the Court ask the right questions? For example, Justices Kagan, Ginsburg, and Breyer addressed the issue of institutional competence.  Directly and indirectly, their comments suggested that the plaintiff states were asking the courts to undertake a regulatory task more suited to administrative agencies. If the test were based on institutional competence, the answer would be easy: administrative agencies have greater expertise, allow for greater public input, and (at least in theory), provide a more comprehensive approach.

But to the extent the legal question is whether the Clean Air Act has displaced the federal common law, relative institutional competence isn’t the issue. The issue is whether the administrative agency is, in fact, undertaking its regulatory function. If it’s not, then the default is the federal common law, however awkward it might ...

American Electric Power v. Connecticut: The Good News

by Douglas Kysar | April 20, 2011
Cross-posted from ACSblog. 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 ...

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