SCOTUS Grants <i>Cert</i> in AEP v. Connecticut; Why the Threat of Tort Liability Should Remain as Part of the Balance of Powers

Douglas Kysar

Dec. 6, 2010

The Supreme Court this morning granted certiorari in the case of American Electric Power Co. v. Connecticut, a common law nuisance suit seeking an order compelling large electric utility companies to reduce their contributions to global climate change. At issue will be a variety of doctrines – such as standing and political question – that nominally originate from constitutional limitations on the role of the judicial branch, but that judges have, over the years, expanded well beyond the text and structure of the Constitution. 

AEP is the first climate change nuisance suit to reach the Supreme Court, but it is only one of several that have been initially dismissed by district court judges who seem all too eager to avoid these controversial and boundary-straining suits. 

The problems with these dismissals are two-fold. First, to the extent that judges are worried about stretching tort law to reach the mother of all collective action problems – global climate change – their concerns are grossly overstated. Numerous avenues exist within the substantive law of tort itself to avoid finding defendants liable for their contributions to climate change (see my recent paper outlining these avenues here). Second, to the extent that judges erect preliminary barriers that deprive courts of the opportunity to engage with climate change tort claims on the merits, they abdicate a traditional role that lies at the very heart of our system of limited government. Tort law is a residual locus for the airing of grievances when no other government actor is responsive to societal need. Unlike legislators and executive branch officials, judges have to give an answer when a claim of wrongful harm is brought to their attention. Using slippery and seemingly unprincipled doctrines like standing and political question to avoid that responsibility works to short-circuit a fundamental node in our system of divided and overlapping governmental power.

In an apparent effort to limit the damage that might be wrought in the AEP case, the Obama Administration intervened in support of certiorari, but on a more limited ground of implied preemption than industry had advocated. The Administration claims that the EPA has gotten busy implementing the Clean Air Act with respect to greenhouse gas emissions and that allowing federal common law nuisance claims to proceed would interfere with the regulatory initiative. The problem with this argument is that EPA’s efforts thus far have been fairly tepid and incremental. The agency has specifically refused to set a national ambient air quality standard for greenhouse gases, which would trigger a more comprehensive control regime that one plausibly might argue “occupied the field” and therefore should displace common law tort actions. Moreover, even if the agency did undertake that kind of full-throated implementation for greenhouse gases, its regulations will inevitably be contested in court for years. Unless and until a comprehensive regulatory control regime is put into actual operation, the threat of tort liability should remain as part of the balance of powers that shapes what regime eventually does emerge. Judges must understand that part of their role in a system of divided power is to prod and plea with other branches that are better positioned to address an area of societal need, but that are less predisposed to try. Adjudicating climate change nuisance suits on the merits offers that potential to prod and plea. Standing, political question, and implied preemption instead invite judges to duck and weave.

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