Supreme Court Hears Oral Argument In American Electric Power Case

Posted on April 21, 2011 by Theodore Garrett

On Tuesday, April 19, 2011, the Supreme Court heard oral argument in American Electric Power v. Connecticut, a case where the Second Circuit held that States and private plaintiffs may maintain actions under federal common law alleging that five electric utilities have caused or contributed to global warming, and may seek injunctive relief capping defendants’ carbon-dioxide emissions at judicially determined levels. The questions before the court are: 1) whether States and private parties have standing to seek judicially fashioned emissions caps on the five utilities, 2) whether a cause of action to cap carbon-dioxide emissions can be implied under federal common law when the Clean Air Act speaks directly to the same subject matter, and 3) whether claims seeking to cap defendants’ carbon-dioxide emissions at “reasonable” levels based on a court’s weighing of the potential risks of climate change against the socioeconomic utility of defendants’ conduct, would be governed by “judicially discoverable and manageable standards” or could be resolved without “initial policy determination[s] of a kind clearly for nonjudicial discretion.” Baker v. Carr, 369 U.S. 186, 217 (1962).

The transcript of Tuesday’s argument is available online here.

Although one must be cautious about predicting results based on questions raised during oral argument, it is difficult to review the transcript of argument without concluding that the justices were very skeptical about a federal common law action to address climate change.

Several of the Justices questioned whether the relief sought by plaintiffs was properly the role of EPA rather than the courts. Justice Ginsberg observed that “Congress set up the EPA to promulgate standards for emissions, and now what -- the relief you're seeking seems to me to set up a district judge, who does not have the resources, the expertise, as a kind of super EPA.” (Tr. 37)

Justice Roberts expressed a similar concern, namely that with global warming “there are costs and benefits on both sides, and you have to determine how much you want to readjust the world economy to address global warming, and I think that's a pretty big burden to post -- to impose on a district court judge.” (Tr. 40-41) Justice Alito similarly was concerned with how a district judge would deal with the tradeoffs involved in providing relief. (Tr. 59).

Justice Kagan agreed, saying that plaintiff’s complaint “sounds like the paradigmatic thing that administrative agencies do rather than courts.” (Tr. 41-42) Justice Kagan further wondered whether plaintiff’s theory would mean that they “have a Federal common law cause of action against anybody in the world,” (Tr. 51) This prompted Justice Scalia to ask whether one could aggregate “all the cows in the country” and bring a climate change suit against all farmers, or all homes that emit carbon dioxide in their heating systems. (Tr. 52-53). Justice Breyer wondered what would happen if a district judge thought that a $20 per ton tax on carbon was the best way to deal with the problem. (Tr. 61). This prompted Justice Scalia to ask what standard would prevail if a district judge set an emission limit and EPA subsequently set a different standard. (Tr. 65). He added that this is a “displacement of the normal process of administrative law.” (Tr. 66)



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