April 21, 2011

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

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 be relative to the regulatory approach. That courts might not be ideally suited for the task does not relate to the question of whether the common law has been displaced. 

Nor does institutional competence decide the political question doctrine, if that’s what the Court was trying to get at. The fact that courts might not be the best institution to decide an issue does not mean that they should be deprived of jurisdiction. To turn the political question doctrine into an institutional competence question could sweep away whole swathes of common law, given the advantages of regulatory approaches over common law jurisdiction in many areas of the law.

Similarly, even though most of the Justices appeared reluctant to embrace the political question and prudential standing doctrines, their questions nonetheless revealed some interest in the policy underpinnings of those arguments. For example, several Justices focused on how a global warming public nuisance case differs from prior public nuisance cases because its scale, measured by both the number of “perpetrators” and the number of “victims,” is much broader than the more localized actions that have typified prior public nuisance cases. 

It’s not clear what legal significance the justices intended to attach to the question of scale. Were the justices suggesting that, due to the large scale of the issues, a political question is presented? (But what about their recognition that the common law has traditionally been a matter for the courts, and is not constitutionally committed to the elected branches?) Or were they suggesting that the widespread nature of this “generalized grievance” meant that the Court should, as a prudential matter, give up jurisdiction? (But what about their recognition that the courts cannot simply abdicate jurisdiction they would otherwise have, not to mention the broader consequences of this approach for plaintiffs seeking remedies for other widespread harms?) Or was this line of questioning motivated by institutional competence concerns again, by the concern that courts are not well-suited to adjudicate such widespread problems? (But, again, that does not make a cause of action a “political question,” and that approach would leave plaintiffs remedy-less, unless and until regulatory action emerged.)

Looking at the scale issue on the merits, there is little question that this single case presents a problem – global climate change – that is on a larger scale than prior nuisance cases. But the scale disparities should not be overstated. In the 19th and 20th centuries, before widespread environmental regulation, common law nuisance law policed industrial emissions. Private and public common law nuisance cases had a profound cumulative impact on the path of industrial development. The courts’ choices about whether to impose strict liability, adopt balancing tests, or ignore harms to foster industrial development were no less significant to emerging industrial economies than the climate nuisance cases currently before district courts.

We can hope that the court will not decide this case on political question or prudential standing grounds and thereby strip the courts of jurisdiction to hear big, difficult, cases just because they are big and difficult. Instead, most of the argument suggested that they’ll decide the case based on whether the Clean Air Act has displaced the federal common law of nuisance. In that context, the big issue is: What congressional or agency action must be taken to displace the common law? Is it Congress passing a law that governs the pollutant in question? In that case, since the CAA has been interpreted to cover GHGs, displacement would already have occurred. Or does displacement occur when EPA embarks upon a rulemaking process that would address the particular industries at issue in the case? In that case as well, since EPA has announced plans to apply the Clean Air Act to existing power plants, displacement would already have occurred. Or does displacement occur only when EPA regulations controlling the sources in question go into effect?  Under this approach, displacement would not yet have occurred since the rulemaking process for existing electric utilities has been initiated but not completed. The justices asked numerous questions along these lines and, assuming that the decision turns on displacement, this will be the key question for the Court to resolve.

Alice Kaswan, CPR Member Scholar; Professor, University of San Francisco School of Law. Bio.

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