October 24, 2010

In this article, Jenner & Block Partner Sally K. Sears Coder and Associate Damon Thayer discuss a June 2011 U.S. Supreme Court decision that struck down two first-of-their-kind lawsuits in which several states, the City of New York, and three private land trusts sought to hold four private power companies and the Tennessee Valley Authority (a federally owned power plant) accountable for global warming, based on a public-nuisance theory under federal common law.  Specifically, in American Electric Power Co. v. Connecticut, the Court held that the Clean Air Act displaced federal tort claims against emitters of carbon dioxide. The authors note that, in light of the growing controversy surrounding global warming, American Electric indicates that federal courts may not be the proper forum to address this complicated issue and they point out that the EPA has indicated it will take final action on a proposed rule to limit greenhouse gases by May 2012.  They suggest that in future litigation, environmental groups may have a difficult time overcoming the impact of the Court’s statements in American Electric concerning the proper role of courts and administrative agencies in the climate-change debate, leaving the groups with the sole recourse of continuing to lobby for change in the executive and legislative branches of government.