by Karl Coplan
The Supreme Court has just announced the grant of the petition for certiorari in American Electric Power v. Connecticut, the federal common law nuisance case brought by several northeastern states against the electric power injury for damages from climate change.
The petition argued that plaintiffs lack standing to sue, preemption of federal common law by the Clean Air Act, and preclusion under political question doctrine. As the order grants the petition without limitation, the Supreme Court will presumably consider all three claims. Justice Sotomayor took no part in the cert decision, as she sat on the panel in the Second Circuit that decided the case (although she did not participate in the decision itself). This raises the possibility of a 4-4 split decision on the merits, which would ordinarily leave the decision of the Court of Appeals intact.
This is not good news for an attempt to establish the liability of power producers for global warming harms. The Second Circuit decision being reviewed recognized the federal common law nuisance claim, recognized the plaintiffs’ standing, and rejected application of the political question doctrine. At least four justices thus seem ready to revisit the broad standing recognized for States in Massachusetts v. EPA, though it would seem that standing in a damages action is a given: plaintiffs are suing for damages for an actual injury, and if they can prove their injury and entitlement to damages, standing should be no greater a hurdle than establishing the nuisance cause of action in the first place.
The Second Circuit decisions are here and here. The petition for certiorari is here. The Supreme Court’s order list, showing the grant of cert, is here.
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