July 15, 2011
On June 20, 2011, the Supreme Court announced its decision in American Electrical Power Company v. Connecticut. The question in this case was whether "the plaintiffs (several States, the city of New York, and three private land trusts) can maintain federal common law public nuisance claims against carbon-dioxide emitters (four private power companies and the federal Tennessee Valley Authority)."
In an opinion delivered by Justice Ginsburg, the Court held by a vote of 8-0 that "[t]he Clean Air Act and the Environmental Protection Agency action the Act authorizes . . . displace the claims the plaintiffs seek to pursue." Chief Justice Roberts and Justices Scalia, Kennedy, Breyer, and Kagan joined Justice Ginsburg’s opinion. Justice Alito filed an opinion concurring in part and concurring in the judgment, which Justice Thomas joined. Justice Sotomayor took no part in the consideration or decision of the case.
To discuss the case, we have Megan L. Brown, who is a partner at Wiley Rein LLP. Ms. Brown is on an amicus brief in support of the petitioners.