On Tuesday, April 19, 2011, the Supreme Court heard oral argument in American Electric Power Company v. State of Connecticut, the landmark case that will decide whether companies can be sued for greenhouse gas (GHG) emissions under common law “public nuisance” theories. The only other time the Supreme Court has heard a climate change case was in 2007, when it ruled that greenhouse gases are “pollutants” covered by the Clear Air Act and therefore, the EPA had the authority to regulate emission of such gases.
From all accounts, the questions and observations of the Supreme Court Justices during the hearing seem to suggest that they are inclined to dismiss the case, either because it involves a “political question” reserved to the legislative branch of government (as lower courts have held) or it is already being regulated by the executive branch in the form of EPA’s post-2007 GHG regulations to which the courts should defer. The Obama Administration took the position that the plaintiff states lack “prudential standing” to maintain the case, that is, as Acting Solicitor General Neal Katyal argued, the “quantity and quality of the nature of the problem here, and the multitude of different policy judgments that would be required,” make the claim unsuitable for the courts under common law public nuisance doctrines. The Supreme Court decision is expected in June.
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