EPA Has Exclusive Authority to Regulate Greenhouse Gas Emissions

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On June 20, 2011, in American Electric Power Co., Inc. v. Connecticut, the U.S. Supreme Court held that federal common law public nuisance claims for abatement of carbon dioxide emissions are barred because the Clean Air Act authorizes the U.S. Environmental Protection Agency to set greenhouse gas emission standards. 

The plaintiffs, consisting of several states, the City of New York and three private land trusts, filed suit against five major electric power companies arguing that the companies’ carbon-dioxide emissions create a public nuisance.  The district court dismissed the claims under the political question doctrine.  The Second Circuit Court of Appeals reversed, holding that the suits were not barred by the political question doctrine, that the plaintiffs had standing to bring their claims and that the plaintiffs could maintain federal common law nuisance claims against the power companies.

While an equally divided Court affirmed the Second Circuit’s determination that the plaintiffs had standing to bring their claims, the Court unanimously held that the plaintiffs could not maintain federal common law claims for nuisance against the power companies.  The Court concluded that plaintiffs’ common law claims are displaced by the Clean Air Act because the Court’s 2007 decision in Massachusetts v. EPA made clear that carbon dioxide emissions are subject to regulation under the Clean Air Act, and the Act provides the same relief plaintiffs are seeking.  The Court left open the issue of whether the plaintiffs could maintain nuisance claims under state law against the power companies.

EPA is currently in the process of setting standards for greenhouse gas emissions from fossil-fuel fired power plants.  That rulemaking is scheduled to be completed by May 2012.

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