Am. Elec. Power Co. v. Connecticut

• Decision Date: 20 June 2011
• Docket Number: No. 10–174.,10–174.
• Parties: AMERICAN ELECTRIC POWER COMPANY, INC., et al., Petitioners, v. CONNECTICUT et al.
• Court: U.S. Supreme Court

564 U.S. 410

131 S.Ct. 2527

180 L.Ed.2d 435

AMERICAN ELECTRIC POWER COMPANY, INC., et al., Petitioners,

v.CONNECTICUT et al.

No. 10–174.

Supreme Court of the United States

Argued April 19, 2011.

Decided June 20, 2011.

Peter D. Keisler, Washington, DC, for Petitioners.

Neal Kumar Katyal, for Respondent Tennessee Valley Authority, supporting the Petitioners.

Barbara D. Underwood, New York, NY, for Respondents Connecticut, et al.

F. William Brownell, Norman W. Fichthorn, Allison D. Wood, Hunton & Williams LLP, Washington, D.C., Shawn Patrick Regan, Hunton & Williams LLP, New York, N.Y., for Petitioner Southern Company.

Peter D. Keisler, Carter G. Phillips, David T. Buente Jr., Roger R. Martella Jr., Quin M. Sorenson, James W. Coleman, Sidley Austin LLP, Washington, D.C., Martin H. Redish, Chicago, Illinois, for Petitioners.

Donald B. Ayer, Kevin P. Holewinski, Jones Day, Washington, D.C., Thomas E. Fennell, Michael L. Rice, Jones Day, Dallas, Texas, for Petitioner Xcel Energy Inc.

Neal Kumar Katyal, Acting Solicitor General, Washington, D.C., for the Tennessee Valley Authority as Respondent Supporting Petitioners.

Michael K. Kellogg, Gregory G. Rapawy, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, D.C., Matthew F. Pawa, Newton Centre, MA, David D. Doniger, Gerald Goldman, Washington, D.C., for Respondents Open Space Institute, Inc., Open Space Conservancy, Inc., and Audubon Society of New Hampshire.

Eric T. Schneiderman, Attorney General of New York, Barbara D. Underwood, Solicitor General, Benjamin N. Gutman, Deputy Solicitor General, Monica Wagner, Assistant Solicitor General, Michael J. Myers, Morgan A. Costello, Robert Rosenthal, Assistant Attorneys General, New York, NY, George Jepsen, Attorney General of Connecticut, Hartford, CT, Kamala D. Harris, Attorney General of California, Oakland, CA, Thomas J. Miller, Attorney General of Iowa, Des Moines, IA, Peter F. Kilmartin, Attorney General of Rhode Island, Providence, RI, William H. Sorrell, Attorney General of Vermont, Montpelier, VT, Michael A. Cardozo, New York, NY, for Respondents Connecticut, New York, California, Iowa, Rhode Island, Vermont, and the City of New York.

Justice GINSBURG delivered the opinion of the Court.

We address in this opinion the question 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). As relief, the plaintiffs ask for a decree setting carbon-dioxide emissions for each defendant at an initial cap, to be further reduced annually. The Clean Air Act and the Environmental Protection Agency action the Act authorizes, we hold, displace the claims the plaintiffs seek to pursue.

I

In Massachusetts v. EPA, 549 U.S. 497, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007), this Court held that the Clean Air Act, 42 U.S.C. § 7401 et seq., authorizes federal regulation of emissions of carbon dioxide and other greenhouse gases. "[N]aturally present in the atmosphere and ... also emitted by human activities," greenhouse gases are so named because they "trap ... heat that would otherwise escape from the [Earth's] atmosphere, and thus form the greenhouse effect that helps keep the Earth warm enough for life." 74 Fed.Reg. 66499 (2009).¹ Massachusetts held that the Environmental Protection Agency (EPA) had misread the Clean Air Act when it denied a rulemaking petition seeking controls on greenhouse gas emissions from new motor vehicles. 549 U.S., at 510–511, 127 S.Ct. 1438. Greenhouse gases, we determined, qualify as "air pollutant[s]" within the meaning of the governing Clean Air Act provision, id., at 528–529, 127 S.Ct. 1438 (quoting § 7602(g)); they are therefore within EPA's regulatory ken. Because EPA had authority to set greenhouse gas emission standards and had offered no "reasoned explanation" for failing to do so, we concluded that the agency had not acted "in accordance with law" when it denied the requested rulemaking. Id., at 534–535, 127 S.Ct. 1438 (quoting § 7607(d)(9)(A)).

Responding to our decision in Massachusetts, EPA undertook greenhouse gas regulation. In December 2009, the agency concluded that greenhouse gas emissions from motor vehicles "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare," the Act's regulatory trigger. § 7521(a)(1); 74 Fed.Reg. 66496. The agency observed that "atmospheric greenhouse gas concentrations are now at elevated and essentially unprecedented levels," almost entirely "due to anthropogenic emissions," id., at 66517 ; mean global temperatures, the agency continued, demonstrate an "unambiguous warming trend over the last 100 years," and particularly "over the past 30 years," ibid . Acknowledging that not all scientists agreed on the causes and consequences of the rise in global temperatures, id., at 66506, 66518, 66523–66524, EPA concluded that "compelling" evidence supported the "attribution of observed climate change to anthropogenic" emissions of greenhouse gases, id ., at 66518. Consequent dangers of greenhouse gas emissions, EPA determined, included increases in heat-related deaths; coastal inundation and erosion caused by melting icecaps and rising sea levels; more frequent and intense hurricanes, floods, and other "extreme weather events" that cause death and destroy infrastructure; drought due to reductions in mountain snowpack and shifting precipitation patterns; destruction of ecosystems supporting animals and plants; and potentially "significant disruptions" of food production. Id., at 66524–66535.²

EPA and the Department of Transportation subsequently issued a joint final rule regulating emissions from light-duty vehicles, see 75 Fed.Reg. 25324 (2010), and initiated a joint rulemaking covering medium- and heavy-duty vehicles, see id., at 74152. EPA also began phasing in requirements that new or modified "[m]ajor [greenhouse gas] emitting facilities" use the "best available control technology." § 7475(a)(4); 75 Fed.Reg. 31520–31521. Fin-ally, EPA commenced a rulemaking under § 111 of the Act, 42 U.S.C. § 7411, to set limits on greenhouse gas emissions from new, modified, and existing fossil-fuel fired power plants. Pursuant to a settlement finalized in March 2011, EPA has committed to issuing a proposed rule by July 2011, and a final rule by May 2012. See 75 Fed.Reg. 82392 ; Reply Brief for Tennessee Valley Authority 18.

II

The lawsuits we consider here began well before EPA initiated the efforts to regulate greenhouse gases just described. In July 2004, two groups of plaintiffs filed separate complaints in the Southern District of New York against the same five major electric power companies. The first group of plaintiffs included eight States³ and New York City, the second joined three nonprofit land trusts⁴ ; both groups are respondents here. The defendants, now petitioners, are four private companies⁵ and the Tennessee Valley Authority, a federally owned corporation that operates fossil-fuel fired power plants in several States. According to the complaints, the defendants "are the five largest emitters of carbon dioxide in the United States." App. 57, 118. Their collective annual emissions of 650 million tons constitute 25 percent of emissions from the domestic electric power sector, 10 percent of emissions from all domestic human activities, ibid., and 2.5 percent of all anthropogenic emissions worldwide, App. to Pet. for Cert. 72a.

By contributing to global warming, the plaintiffs asserted, the defendants' carbon-dioxide emissions created a "substantial and unreasonable interference with public rights," in violation of the federal common law of interstate nuisance, or, in the alternative, of state tort law. App. 103–105, 145–147. The States and New York City alleged that public lands, infrastructure, and health were at risk from climate change. App. 88–93. The trusts urged that climate change would destroy habitats for animals and rare species of trees and plants on land the trusts owned and conserved. App. 139–145. All plaintiffs sought injunctive relief requiring each defendant "to cap its carbon dioxide emissions and then reduce them by a specified percentage each year for at least a decade." App. 110, 153.

The District Court dismissed both suits as presenting non-justiciable political questions, citing Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), but the Second Circuit reversed, 582 F.3d 309 (2009). On the threshold questions, the Court of Appeals held that the suits were not barred by the political question doctrine, id., at 332, and that the plaintiffs had adequately alleged Article III standing, id., at 349.

Turning to the merits, the Second Circuit held that all plaintiffs had stated a claim under the "federal common law of nuisance." Id., at 358, 371. For this determination, the court relied dominantly on a series of this Court's decisions holding that States may maintain suits to abate air and water pollution produced by other States or by out-of-state industry. Id., at 350–351; see, e.g., Illinois v. Milwaukee, 406 U.S. 91, 93, 92 S.Ct. 1385, 31 L.Ed.2d 712, (1972) (Milwaukee I ) (recognizing right of Illinois to sue in federal district court to abate discharge of sewage into Lake Michigan).

The Court of Appeals further determined that the Clean Air Act did not "displace" federal common law. In Milwaukee v. Illinois, 451 U.S. 304, 316–319, 101 S.Ct. 1784, 68 L.Ed.2d 114 (1981) (Milwaukee II ), this Court held that Congress had displaced the federal common law right of action recognized in Milwaukee I by adopting amendments to the Clean Water Act, 33 U.S.C. § 1251 et seq. That legislation installed an all-encompassing regulatory program, supervised by an expert administrative agency, to deal comprehensively with interstate water pollution. The legislation itself prohibited the discharge of pollutants into the...