Greenhouse Gases, and Other Hot Air
In American Electric Power Co. v. Connecticut, the Supreme Court is faced with the next, inevitable step in a line of climate change litigation including, most notably, Massachusetts v. EPA in 2007. The case includes, as did Massachusetts, a jurisdictional question of whether the plaintiff states and land trusts have standing, either under Article III or under the “prudential” principles of standing. Perhaps of broader interest, however, is the substantive question facing the Court, which is whether, in light of the powers vested in the Environmental Protection Agency under the Clean Air Act, a federal common law public nuisance claim is the proper course by which to seek redress for the rise in global temperatures to which the defendants are alleged to be substantial contributors.
The power companies’ and the government’s positions in this case are mostly aligned, in that both seek to have the complaint dismissed, although on slightly different jurisdictional grounds.
