On April 19, 2011, the United States Supreme Court heard oral arguments in American Electric Power et al. v. Connecticut et al., a case in which various states, municipalities, and several land trusts sued several power companies seeking an order requiring abatement of the companies' greenhouse gas ("GHG") emissions under the theory that these emissions constituted a public nuisance. The district court dismissed plaintiffs' claims on the basis that the claims raised non-justiciable political questions. The Second Circuit reversed, finding that (i) plaintiffs had standing; (ii) plaintiffs had stated a claim under the federal common law of nuisance, and (iii) that the claims did not present non-justiciable political questions. The Supreme Court granted certiorari.
Peter D. Keisler argued the case on behalf of the utility defendant petitioners. Neal Kumar Katyal, Acting Solicitor General, argued the case on behalf of the Tennesse Valley Authority, one of the petitioners. Barbara D. Underwood, Solicitor General of New York, argued the case on behalf of the respondents.
The Justices were clearly concerned about relying on the concept of prudential standing as a means to avoid exercising jurisdiction. Chief Justice Roberts quoted Chief Justice Marshall, stating that "if we don't have jurisdiction, we can't decide it, but if we do, we have to decide it." The Justices, however, appeared more receptive to petitioners' arguments that recent actions by U.S. EPA to regulate GHG emissions had acted to displace respondents' federal common law nuisance claims.
The Justices were clearly concerned about the ability of the federal courts to adopt appropriate emission standards for petitioners' GHG emissions, with Justice Ginsberg noting that "the relief you’re seeking seems to me to set up a district judge, who does not have the resources, the expertise, as a kind of super EPA." The Justices also appeared skeptical of petitioners' argument that until such time as U.S. EPA adopted a regulatory emission limitation curtailing the utilities' GHG emissions, that there was no federal displacement and that this case "rests on the longstanding, fundamental authority of the states to protect their land, their natural resources and their citizens from air pollution emitted in other states." However, Justice Scalia questioned whether all contributors to global warming might be subject to suit. At one point during the argument, Justice Scalia asked if these suits were allowed to proceed, whether each individual cow or person might at some point in the future be subject to suit.
Justice Sonia Sotamayor recused herself and took no part in the oral arguments. The nature and scope of the questions from the Court (including questions from some of the more liberal members of the Court) could be an indication that the Second Circuit's decision will be reversed.
For a copy of the oral argument transcript, please click here here.