December 06, 2010

AEP v. Connecticut: Will the Supreme Court Shut the Door Again?

The environmental blogosphere is already abuzz over the Supreme Court’s grant of certiorari in AEP v. Connecticut. The case is of critical importance in determining whether the courts have a role to play in adjudicating climate change. Few believe that the courts are a good venue for developing climate policy. But for the foreseeable future, the question is whether the traditional common law can fill in for Congress’ failure to take more comprehensive action.

In AEP, Connecticut, along with several other states and public interest organizations, brought a public nuisance action against the five largest U.S. electric utility companies. The plaintiffs sought injunctive relief in the form of emissions limits on the utilities’ facilities. In 2005, the district court held that applying public nuisance law to the problem of climate change presented a nonjusticiable political question, and dismissed the case. In 2009, the Second Circuit reversed, re-opening the courthouse door to climate nuisance cases. 

Here's a look at several of the key legal issues presented by the case.

Political Question Doctrine: In this and other climate nuisance cases, the political question doctrine has been the preferred vehicle through which district courts have dismissed the cases. (See also Comer v. Murphy Oil Co. and Kivalina) The Second Circuit rejected this approach. The first key issue under the political question doctrine is whether the matter is textually committed to one of the political branches (the elected branches). On this prong, the Second Circuit stated strongly that: “In this common law nuisance case, ‘[t]he department to whom this issue has been ‘constitutionally committed’ is none other than our own – the Judiciary.”

The political question doctrine next asks whether there are judicially discoverable or manageable standards, and whether the court is capable of deciding the issue without an initial policy determination by the political branches. The Second Circuit argued that traditional common law provides a sufficient basis for judicial decision, even if the setting and scale differ from past nuisance cases.  The court observed that the common law courts have a long history of hearing complex environmental nuisance cases, and that the common law provides basic policy parameters that can be applied to new and evolving circumstances.

The Second Circuit emphasized that the fact that the cases raise politically charged issues, and that they are likely to be difficult to resolve, is not a basis for abdicating the judicial responsibility to adjudicate complex nuisance and tort claims.

If the Supreme Court were to conclude that the political question doctrine deprives the courts of jurisdiction, it would be a novel application of the political question doctrine. The common law has historically been for the courts to develop. The political question doctrine has generally deprived the courts of jurisdiction only where they were attempting to second-guess the elected branches. That said, the climate nuisance cases raise real institutional competence concerns and the district courts are desperate to avoid them. The Court may be tempted to let the district courts use the “political question doctrine” as a “duck the question” doctrine.

Standing: Others have provided cogent assessments of the complex standing issues presented by climate change cases (see Ann Carlson). In 2007, the Supreme Court found standing in another climate change case: Massachusetts v. EPA. It's true that the parties there had a lighter burden because they could claim a statutory right to demand agency action, a right they do not have in this case. Even so, it's difficult to see why the same arguments that justified a recognition of the states’ vital interests in that case would not justify recognizing the states’ very same interests in the climate nuisance cases. A finding of “no standing” risks inconsistency with the Court’s Massachusetts precedent. And a finding of “no standing” would make us continue to question the Court’s standing jurisprudence. The objective of standing doctrine is to make sure that the parties before the Court have a clear and vital interest; do we really question the states’ interest in curtailing climate change?

Prudential Standing. The U.S. Solicitor General, representing one of the defendant utilities, the Tennessee Valley Authority, filed a brief supporting the petition for certiorari that took a different tack. The Solicitor General did not argue that the court had no jurisdiction under the political question doctrine or that the parties lacked traditional standing. Instead, the SG argued that courts should refrain from hearing climate nuisance cases under the “prudential standing” doctrine. The SG argued that the case presents the type of “generalized grievances more appropriately addressed by the representative branches.” Under this doctrine, parties are not entitled to bring claims about harms that are suffered by others or equally by everyone. 

Since the plaintiff states can point to specific present and future harms, it is not clear whether the harm is so generalized as to render standing “imprudent.” On the other hand, climate harms are undoubtedly more “generalized” than the harms customarily litigated in nuisance cases.

If the Court is uncomfortable applying the political question doctrine – understandably uncomfortable with concluding that common law claims should not be resolved by the courts – then the Court might find the “prudential standing” doctrine a preferable route for precluding jurisdiction. But that move could impact the ability of injured plaintiffs to bring actions whereever the harm they experience is broadly shared. 

Displacement of Federal Common Law by the Clean Air Act. The Second Circuit also raised a key additional issue: whether existing federal laws have “displaced” the federal common law of public nuisance in this area. Such displacement can be found where there is a comprehensive pattern of federal regulation evincing a congressional intent to displace the common law, or where the common law would conflict with federal law.

When the Second Circuit decided the case in September 2009, EPA had yet to adopt greenhouse gas controls on stationary sources of pollution, like electric power facilities, and thus had not “spoken directly” to the concerns raised by the plaintiffs. The Second Circuit therefore concluded that the common law was not displaced – though the court left open the possibility that further regulatory developments could displace it.

Since then, as the SG has argued, EPA regulatory actions under the Clean Air Act have evolved. EPA is on the cusp of regulating greenhouse gases under the Clean Air Act’s Prevention of Significant Deterioration (PSD) program this January. 

The question is whether regulating stationary sources under the PSD program amounts to the type of “comprehensive” regulation that would displace the common law in this context. In fact, that regulation is likely to have little impact on the existing power plants at issue in AEP. The PSD program imposes federal emission control requirements only on new and modified sources of pollution, not on existing sources (unless those sources are modified). The litigation, in contrast, targets existing stationary sources of greenhouse gases. The primary mechanism for addressing existing sources of air pollution under the Clean Air Act is to set a national goal and then give states the option of controlling their own existing sources as one strategy for meeting that goal. EPA has taken no action to set a national standard for greenhouse gases (and faces significant practical obstacles in doing so), and so the two-step process for controlling existing sources has not been implemented, and appears unlikely to be implemented anytime soon.

It is also possible that the new Congress will succeed in freezing or eliminating EPA authority over stationary sources, as members of Congress have repeatedly proposed. Although President Obama opposes such an effort, it is conceivable that Congress will include a proposal as an appropriations or other rider to broader legislation that the President ultimately feels compelled to sign. If EPA is prohibited from regulating greenhouse gases under the Clean Air Act, then the CAA would no longer “displace” the common law.

In conclusion, the “right” solution is, of course, for Congress to enact comprehensive climate change legislation, not for courts to attempt to resolve such far-reaching problems on a piecemeal and incremental basis. But until Congress acts, and without more expansive authority to address existing sources under the Clean Air Act, the courts are the only legal avenue available to redress an ongoing and as-yet unmitigated harm. 

More broadly, the legal doctrines the petitioners have raised do not properly bar jurisdiction. Any such use of the doctrines would not only block access to the courts by those seeking to address climate change, but distort the rules that define the courts’ appropriate role in our common law legal system.

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

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