AEP v. Connecticut: The Ruling and its Implications

AEP v. Connecticut (June 20, 2011) is this year's blockbuster environmental law case. AEP is the first decision of the Supreme Court on climate change since Massachusetts v. EPA (2007) and a titanic piece of litigation pitting some of the largest states against some of the country's largest utilities. AEP involves a plethora of constitutional issues (political question, standing and displacement of federal common law) together with equally important issues of judicial management of large-scale environmental litigation. 

The Court in AEP split 4-4 on certain preliminary issues that resulted in an affirmation of part of the lower court ruling, followed by an 8-0 decision reversing the rest of the Second Circuit's decision. The Court agreed with the utility defendants on one core point: That highly complex climate change environmental regulation is more suited to expert agencies set up by Congress than by federal judges issuing "case-by-case injunctions." Justice Ginsburg, writing for the Court, also managed to raise one other constitutional issue not briefed by the parties -- potential federal preemption of state nuisance claims.

On Thursday, July 7, 2011 the American Bar Association Section of Environment, Energy and Resources will be hosting a teleconference to discuss the legal, environmental and regulatory implications of this decision. This is a FREE program and will not provide CLE credits.

The lawyer who represented the defendant utility companies, Peter Keisler of Sidley & Austin, and the former senior climate change policy counsel to the EPA Administrator, Professor Lisa Heinzerling of Georgetown University Law Center, will discuss the Court's holding and its implications.


The world gets hotter, and we're becoming hungrier

For nearly two decades, scientists had predicted that climate change would be relatively manageable for agriculture, suggesting that even under worst-case assumptions, it would probably take until 2080 for food prices to double.

In part, they were counting on a counterintuitive ace in the hole: that rising carbon dioxide levels, the primary contributor to global warming, would act as a powerful plant fertilizer and offset many of the ill effects of climate change.

Until a few years ago, these assumptions went largely unchallenged. But lately, the destabilization of the food system and the soaring prices have rattled many leading scientists.