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.

Click here for more information about this program.

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.

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U.S. Supreme Court to hear oral arguments next week on landmark greenhouse gas case

On Tuesday April 19, 2010 the Supreme Court of the United States is scheduled to hear oral arguments on the biggest greenhouse gas/global warming related case since Massachusetts v. EPA (2007) (where the Supreme Court held that the Clean Air Act allows the EPA to regulate GHG emissions from automobiles).

In American Electric Power v. Connecticut, a conglomerate of 6 states*, 3 not-for-profits and New York City ("States") will take on the nation's 5 largest GHG emitters (large electricity generators).
*NJ and WI are no longer part of this suit.

The legal issues to be argued: (1) whether states may sue for injunction under the common-law tort theory of "public nuisance" based on global warming-related injuries ; (2) whether the "political question doctrine" prevents the courts from hearing this suit; and (3) whether the Clean Air Act or EPA regulations preempt this action.

Don't think anyone is interested? Think again. As of Saturday evening, there have been at least 22 amicus briefs for the respondents (power plants) and 9 for the petitioners (the states ).





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House Republicans waste no time in 2011, propose legislation to delay and block global warming protection

Republicans strike first in 2011 and look to block EPA from enacting global warming related regulations. 

Earthjustice did not take this lightly, firing that "these pieces of legislation are bad for the health of the American people, bad for American competitiveness in the global economy, bad for our national security, and bad for air quality across America."

Of course, republicans focused on the EPA's "job killing" regulations that "overreach." Apparently the EPA shouldn't be able to regulate carbon dioxide and methane under the Clean Air Act. Ohh, and they're going to kill the West Virginia economy.

But who should regulate CO2 and CH4 if not the EPA? I think we're beyond the point of no regulation, so why delay this?

Norfolk, VA Prepares for Rising Sea Levels

The city of Norfolk (Virginia) will not sit around and just wait for sea-levels to rise. Situated just west of the mouth of Cheasapeake Bay, it is bordered on 3 sides by water, and has, thus far, experienced the highest relative increase in sea level on the East Coast (14.5" since 1930).

I sure hope other coastal cities (ahem...NYC...) follow suit. This is not a drill, people!

New Speaker, Old Mentality

"I voted in the 2010 mid-term elections, and all I got was this lousy Boehner."  I want this on a t-shirt.  Someone please mass produce. I will pay you $25.

It's true.  Nancy Pelosi will be out and it's reported that John Boehner (should be pronounced "boner"), will be knighted as the new Speaker of the House.  No surprise that the republican from Ohio "fought bitterly" against the cap-and-trade bill that was passed by the House last year. 

"The idea that carbon dioxide is a carcinogen that is harmful to our environment is almost comical," Mr. Boehner told ABC News in an April 2009 interview. "Every time we exhale, we exhale carbon dioxide. Every cow in the world, you know, when they do what they do, you've got more carbon dioxide."

No, Mr. Boehner.  That's not comical.  What's comical is that you think CO2 emissions and a cap-and-trade regulatory scheme have to do with cancer.  That, along with the pronunciation of your last name.