YLJ Online Symposium: “AEP v. Connecticut’s Implications for the Future of Climate Change Litigation” and “A Tale of Two Climate Cases”

The Yale Law Journal Online has launched the second symposium of its new series, Summary Judgment, which features timely responses by academics and practitioners to recent court decisions. The newest installments comment on the Supreme Court’s June decision in American Electric Power Co., Inc. v. Connecticut, 564 U.S. __ , 131 S. Ct. 2527 (2011) (AEP), in which an 8-0 majority held that the Clean Air Act and the EPA actions authorized thereunder have displaced the federal common law of public nuisance with respect to greenhouse gas emissions from coal power plants.

In AEP v. Connecticut’s Implications for the Future of Climate Change Litigation, Professor Hari M. Osofsky introduces the six installments of the AEP Summary Judgment symposium and adds four preliminary observations. First, Osofsky argues that while the Court shuts down federal public nuisance claims, it remains very much open to climate change litigation through suits by citizens and states on statutory grounds. Second, she notes that in AEP the Court fails to resolve many issues (some of which are picked up by other contributors in this series), including standing in suits with only nongovernmental petitioners, the political question doctrine, state law preemption, and the possibility that federal common law actions may be allowed if Congress decides to prevent EPA from regulating greenhouse gases. Third, in holding the EPA is better suited to assess climate change science, the Court overlooks the many judges who work with complex science in tort cases as well as the possibility that courts may be engaged in climate change science in non-agency ways. Lastly, Osofsky concludes that AEP will have “mixed impact”: while it ensures that climate change will continue to be an “exploding area” of the law, it also limits citizens and victims from obtaining redress for climate change harm. Addressing climate change issues through a regulatory framework implicates complex issues that all three branches of government will need to resolve.

In A Tale of Two Climate Cases, Professor Jonathan H. Adler juxtaposes AEP alongside the Court’s prior decision in Massachusetts v. EPA, 549 U.S. 497 (2007), which held that greenhouse gas emissions constitute an “air pollutant” under the Clean Air Act. In Adler’s view, Connecticut and the other state plaintiffs in AEP “lost this particular climate battle . . . because they had already won the war”: they have persuaded the Court to confirm the EPA’s regulatory power over greenhouse gases. Moreover, although AEP displaces public nuisance suits under federal common law, Adler notes that the decision did not preclude suits filed under state law. With the door left upon to state-law claims and to regulatory action, Professor Adler concludes that “controls on [greenhouse gas] emissions will proliferate.”

The Summary Judgment series is available on YLJ Online. Please also visit the site to read our latest Online Essays and to view recent issues of our print edition in an electronic format.

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