Connecticut v. AEP

The 2d Circuit’s decision in Connecticut v. American Electrical Power, reversing a district court decision that dismissed an acton by state attorneys general seeking damages associated with climate change under a theory of common law public nuisance, is available here.  There will undoubtedly be a number of good legal analyses of the case in the next few weeks. However, a good starting point is UCLA Law’s Jonathan Zasloff’s piece in Grist today, which indicates that while polluters usually seek to tie up regulations in interminable challenges, in the hope that a more sympathetic regime will come along, the decision in Connecticut v. AEP poses a real dilemma for them. The panel in Connecticut indicated that while EPA regulation of GHGs under the CAA might displace public law nuisance suits, at this point the Obama administration has only “proposed” such regulation, and only for mobile sources, and thus the panel held that there is no displacement.

Is it in the best interest of major GHG polluters to seek to prevent promulgation of regulations when the alternative is potentially huge and unpredictable exposure to common law actions? (though as Zasloff points out, it’s far from clear whether CAA regulation would displace nuisance suits) While Zasloff doesn’t extend his analysis beyond the interplay with EPA, one wonders if polluters might be more amenable now to passage of the American Clean Energy & Security Act, which would “displace” regional accords for at least five years, most regulation of GHGs under the CAA, and common law actions. Given the vise that is tightening on polluters from the executive and judicial branches, they may perceive that their best bet is to work in the legislative arena to weaken the ACES bill to the point where it’s palatable, given that it can also serve as a shield against the far more frightening prospect of EPA regulation or a proliferation of common law actions. One must also not forget in this context that another shoe could drop should appellants prevail in other cases of this nature, including Comer v. Murphy Oil (5th Circuit), California v. General Motors Co. (9th Cir.) and Native Village of Kivalina v. Exxon Mobil Corp, et al., (C.D. Cal.).

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