In what many are calling the most important environmental case since Massachusetts v. EPA, on April 19, 2011, the Supreme Court will hear arguments to decide whether states and private parties can sue power companies under federal common law for contributing to global warming and compel them to cap CO2 emissions. The case was originally brought in 2004 by various states, New York City and several land trusts against certain utilities, arguing that the utilities were creating a public nuisance because they were emitting greenhouse gases that contribute to climate change.
Though three other similar cases have been brought around the country, none has yet made it to trial--and AEP is the first to reach the Supreme Court. Significant developments include: the recusal of Justice Sonya Sotomayor; an Obama administration brief filed on behalf of the Tennessee Valley Authority that sides with industry; and a brief by G.O.P. lawmakers saying that the case involves political and public policy matters that should be left to the legislative and executive branches of the government to address. Environmentalists point out that, to date, there is little to indicate that the other branches of government are taking meaningful action to limit greenhouse gas emissions.
This high-level panel discussed and debated the major issues at play and the likely outcome of the case, including the critical questions of constitutional standing and application of the "political question doctrine," as well as whether a federal common law cause of action to cap climate emissions exists -- and, if so, whether EPA’s actions to date on climate change have effectively displaced it.
Richard Bress, Partner, Latham & Watkins LLP
Eric Glitzenstein, Partner, Meyer Glitzenstein & Crystal
James May, Professor of Law, Widener University
David B. Rivkin, Jr., Partner, Baker & Hostetler LLP
MODERATOR: Bruce Myers, Senior Attorney, Environmental Law Institute
Amicus Briefs from Panelists: