by Karl Coplan

The Supreme Court issues its decision in SCOTUS v American Electric Power this morning.  Not surprisingly, the Court found in a 8-0 opinion that EPA’s authority to regulate greenhouse gases under the Clean Air Act, affirmed by the Court in Massachusetts v EPA, “displaces” any federal common law nuisance claim for interstate air pollution resulting in climate change.

The Court left open the possibility that state common law nuisance claims might still apply, based on the law of the source state under International Paper v Ouellette.

Interestingly, the court also did not disturb the Second Circuit’s finding it had jurisdiction over the case (as against defendants’ political question and standing defenses).  The opinion for the court notes that the court was split 4-4 on this question (Justice Sotomayor recused herself from the case), but, in a departure from usual practices, there were no separate opinions on this issue.

The standing and political question defenses have never made sense to me: if the common law provides a remedy, there is standing almost by definition; likewise, if the common law provides a remedy, then there is no “political question” objection to courts carrying out their assigned common law function.

An interesting question: if Congress succeeds in divesting EPA of jurisdiction over greenhouse gas emissions, does the federal common law claim come back from displacement?