Nuisance, GHG and climate change

Today, the US Supreme Court reversed the groundbreaking decision, Connecticut v. American Power, which had allowed states, New York City and private land trusts to sue major greenhouse gas producers in nuisance, whether or not their emissions breached federal statute law.

The Court held that all federal common-law rights to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants were “displaced” by the federal Clean Air Act and actions that the Environmental Protection Agency can take under that statute.   Specifically, the Court stated the displacement test as simply “whether the statute speaks directly to the question at issue,” and that in this case, Massachusetts v. EPA had made clear that emissions of carbon dioxide qualify as air pollution subject to the CAA.

The Court found that the CAA Section 111 direction to EPA to establish emission standards for categories of stationary sources, and EPA’s listing of the fossil-fuel fired power plant category, is enough to create carbon dioxide emission limits, leaving “no room for a parallel track” via federal common law.  The Court rejected the argument (and the Second Circuit’s holding) that federal common law is not displaced until EPA actually exercises its regulatory authority in adopting standards.”

Although the main decision was unanimous, the court split 4-4 on whether the issue was justiciable, i.e. suitable for decision in the courts:

“The petitioners contend that the federal courts lack authority to adjudicate this case. Four members of the Court would hold that at least some plaintiffs have Article III standing under Massachusetts, which permitted a State to challenge EPA’s refusal to regulate greenhouse gas emissions; and further, that no other threshold obstacle bars review. Four members of the court, adhering to a dissenting opinion in Massachusetts, or regarding that decision as distinguishable, would hold that none of the plaintiffs have Article III standing.  We therefore affirm, by an equally divided Court, the Second Circuit’s exercise of jurisdiction and proceed to the merits.”

Though unnamed, the four justices who found the case justiciable must be Ginsburg, Breyer, Kagan and Kennedy. Unsurprisingly, the four opposed are Roberts, Scalia, Thomas and Alito.  Sotomayor was recused  because she was on the Second Circuit panel in the AEP case; thus, in a future case, there could be a 5-4 majority to allow climate change nuisance litigation, but for the Clean Air Act displacement.

Canada does not have such a clear displacement rule, but to date Canadian courts have ducked climate change litigation, holding it non-justiciable.