AEP v. Connecticut's Implications for the Future of Climate Change Litigation

In American Electric Power Co. v. Connecticut (AEP), the Supreme Court held that “the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.” This Essay introduces a set of commentaries that explore several of the interesting and controversial issues that the opinion addresses (or largely sidesteps). These essays analyze the complexities of the context in which the core displacement holding takes place, the opinion’s environmental justice implications, its interaction with current standing doctrine, the political question doctrine issues briefed in the case but not addressed in detail by the decision, and common law nuisance actions as an approach to addressing climate change. This Essay situates these commentaries in relation to one another and adds to this dialogue by considering the decision’s implications for the future of climate change litigation in the United States. AEP, the second case in which the Supreme Court has confronted the problem of climate change, builds from the Court’s decision four years earlier in Massachusetts v. EPA. But AEP also takes place in a broader context, in which numerous state and federal courts in this country and others, as well as international tribunals, face an increasing number of cases involving climate change. The vast majority of those cases are not common law nuisance cases like AEP, but rather regulatory actions interacting with local land use planning and with state and federal environmental law. In AEP, the Court shapes the path of climate change litigation by reinforcing the appropriateness of regulatory actions while limiting federal common law public nuisance ones. This commentary considers: (1) the framework for climate change litigation created by the combination of AEP and Massachusetts; (2) the pathways the Court endorses, shuts down, and leaves open; (3) the Court’s view of the limited role that courts, as opposed to the Environmental Protection Agency (EPA), should play in assessing climate change science under the current regulatory scheme; and (4) the benefits and limitations of the path forward from AEP.