Oral arguments in American Electric Power Co., Inc. v. Connecticut featured several persistent themes, with discussion focusing on the difference between dismissing the case on prudential standing, which would punt the question of climate change policy out of the judicial branch, and dismissing the case on the merits, which would effectively leave the EPA and Congress as the sole source for climate change regulation. The Justices seemed uncertain in their questioning whether the Court is inclined to dispose of the case without disturbing the 2007 decision of Massachusetts v. EPA, or whether that decision would be narrowed by dismissing AEP v. Connecticut on standing grounds.
The magnitude of the case was not lost on the Court or the parties, with even the Acting Solicitor General remarking that AEP was a first case in over two hundred years touching on an issue of such global proportions. But, in the Petitioner’s view, because the entire world is both perpetuates and suffers from climate change, prudential standing was the most appropriate means to dispose of the case.
There is little doubt that case may end in a stalemate between the conservative and liberal blocs of the Court.
The US Supreme Court heard arguments April 19, in AEP v. Connecticut. Five states, the City of New York and two land trusts brought suit against the five largest carbon dioxide-emitting utility companies under a federal nuisance claim. Interestingly, because one of these utility companies is the Tennessee Valley Authority, a quasi-governmental agency, the Department of Justice and Acting Solicitor General Neal Kaytal represented it.
The States claim that the carbon dioxide emitted by large coal-burning utilities, with the defendants owning the largest share of these source, directly cause harm to the States by increasing ocean levels due to the effects of global warming and climate change. This case marked the second climate change case to reach the Supreme Court, and has the potential to both strengthen and erode the gains from the precedent set in Massachusetts v. EPA in 2007.
Leading up to the oral arguments, commentators asked whether Justice Kagan would be able to invoke her inner Justice Stevens and anchor the liberal wing of the bench. While the litigation stated during the Bush Administration, some wondered if the plaintiffs would continue to advance their case given a new administration in the White House. Left to be seen is whether it will matter that Justice Sotomayer recused herself from the Court due to her involvement in the case at the Second Circuit, setting up the potential for a 4-4 split.
Petitioners Provided Several Avenues for Dismissal
In a rare extended session, attorneys from all three of the parties (the plaintiffs, the corporation defendants and the Solicitor General on behalf of the TVA) focused arguments on whether the Court has jurisdiction over the Plaintiff’s common law claims. Both the private companies and the government argued that the Court lacks jurisdiction on multiple grounds, including prudential standing, political question grounds, displacement, and most importantly, Article III standing. In terms of displacement, both the private companies and the government argued that the EPA’s ongoing efforts to regulate climate change sufficiently bar a common law nuisance claim. The EPA preparing regulations to limit the carbon dioxide emissions of coal-fired power plants, but a final rule may not be promulgated until sometime in May 2012 as required by a court order.
Although the Petitioners sought to dismiss the case on any of these claims, the presentation to the Court focused primarily on the prudential standing, which gives the Court unique authority to dismiss the matter. Peter Keisler, a former Acting Attorney General under President Bush and at one time a nominee for a post on the D.C. Circuit, began his argument by focusing on the complex nature of combating climate change. Early in the argument Chief Justice Roberts questioned Mr. Keisler’s by wondering whether it was prudent to use prudential standing to dismiss the case when it could be dismissed under Article III standing. Mr. Keisler noted that although Massachusetts may provide some authority for this matter, there was nonetheless equally persuasive authority under Steel Co. v. Citizens for Better Environment to dismiss this case first under prudential standing without considering Article III standing.
Standing v. Merit — a Mass. v. EPA Question
As the argument progressed, the discussion turned toward whether the Court should consider the issue of standing, or whether that argument was in fact directed at the merits of the case. In Mr. Keisler’s presentation and General Kaytal’s, Justice Kennedy and Chief Justice Roberts kept coming back to the distinction between standing and displacement. Although the discussion did not seem to resolve itself, it provided some insight into where the votes may lie and where the battle may be for winning-over Justice Kennedy.
As the government gave its presentation, General Kaytal made the remarkable statement that this case was a first in the over two hundred years to deal with an issue of such global proportions. He drew the Court’s attention to the fact that because the entire world is both a source of global warming emissions and a victim all at the same time, prudential standing was the most appropriate means to dispose of the case. Referring back to Justice Kennedy’s concern over the merits of the case, the Chief Justice questioned General Kaytal’s argument that the Court has jurisdiction over the case, but should exercise restraint in considering the merits of the case. By citing an oft-used quote from Chief Justice Marshall that if the Court has jurisdiction it must consider the merits, Chief Justice Roberts signaled the possibility that while the Court may ultimately dismiss the case under the theory of displacement, the Court may consider defining the current standing precedent under Massachusetts. This could leave open the possibility of the Court narrowing its holding in Massachusetts and even barring standing for private citizens to bring suit for all types of climate change cases.
The Limits of the Displacement Test
In discussing the merits of the case, many of the justices attempted to determine the limits of a potential test regarding displacement considering the EPA’s recent actions to regulate climate change. With this background, both of the petitioner parties argued that the political branches were better equipped to address climate change; the courts are not as well equipped to provide relief to the Plaintiffs in this case or to and any future plaintiff in another federal or state case brought under the common law of nuisance. In a moment of levity, Justice Kagan remarked to General Kaytel that the displacement argument sounds more like a political question test with the multiple factors under Baker v. Carr as an appropriate means to dismiss the case. The Solicitor General replied that the government does not care how it wins, but would submit that prudential standing is the most appropriate. The Court dismissing the case under that test makes it less likely the Court would fashion a rule that would exclude certain plaintiffs in the future, or eviscerate the holding in Massachusetts v. EPA.
Respondents Argue the Courts are Equipped for GHG Suits
In response, Barbara Underwood, Solicitor General of the State of New York representing the State Respondents, argued that the case was justiciable and that the judicial branch could in fact develop a mechanism to redress the nuisance claims. In a very heated discussion, both Justice Ginsburg and Justice Kagan pointed out that while nuisance may have been an appropriate claim prior to the enactment of the Clean Air Act or the establishment of the EPA, the law and the agency are in place and the EPA is doing an adequate job exercising its authority under Massachusetts. Thus, it appears that the liberal bloc of the Court may focus on this rationale so as to give cover to the private companies and the government and to allow the EPA to continue to put into place a consistent and reasonable mechanism to regulate climate change.
True to form, Justice Scalia had the entire chamber in stitches with his attempt to set a test for future nuisance claims. In a highly-quotable reference, Justice Scalia made the slippery-slope argument that future plaintiffs seeking restrictions on methane gas may have to sue individuals farmers, or even bring claims “cow by cow,” in order to address greenhouse gas emissions from sources other than large coal plants. Although General Underwood had little to respond to this line of questioning, she did make the case that Article III judges are competent to develop a reasonable and appropriate mechanism to address climate change, and the Second Circuit’s decision would keep courts open to future State plaintiffs to bring cases to protect their lands and their citizens.
The oral arguments featured several persistent themes, and there is little doubt that case may end in a stalemate between the conservative and liberal blocs of the Court. With Justice Sotomayor recused from the case because she sat on the Second Circuit panel, a 4-4 tie is possible and would maintain both the Circuit court’s opinion favorable to the states, and the current precedent under Massachusetts. Ultimately, the Court may dispose of the case under any number of the claims suggested by the Petitioners, with some attempt made to clarify or distinguish the decision from Massachusetts. This possibility that the AEP decision could narrow Massachusetts has the environmental community nervous, especially with the impacts of climate change likely to be felt more heavily in the coming years and decades. The Court’s decision could redirect all future climate change cases, or it could lead to a collective sigh of relief if the Court dismisses the case and keeps Massachusetts intact.
– Marcus Lee