American Electric Power

Connecticut v. American Electric Power Co., 131 S. Ct. 2527 (2011)

We filed the first tort case against greenhouse gas polluters in 2004 in collaboration with the attorneys general of California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, Wisconsin, and the City of New York. We represented three land trusts that filed suit at the same time as the States and City. The defendants were electric power corporations that were the five largest emitters of greenhouse gases in the United States according to the allegations in our case. The cases, filed in federal court in New York City, sought injunctive relief, i.e., a court order requiring the power companies to reduce the emissions of greenhouse gases over a period of years. After the district court initially dismissed the cases, the Second Circuit Court of Appeals reinstated them in a sweeping ruling in our favor in 2009. To read the Second Circuit Court of Appeals opinion, click here. In 2011, the U.S. Supreme Court ruled that the federal Clean Air Act precludes a case like this that seeks a court order to reduce air pollution; the Court reasoned that Congress had assigned the regulatory function to the EPA and thus a federal claim seeking to reduce pollution must be brought only under the Clean Air Act. At the time we filed Connecticut v. AEP, the EPA under the second Bush administration had contended that the Clean Air Act did not apply at all to greenhouse gases. But in Massachusetts v. EPA, 549 U.S. 497 (2007), the Supreme Court held that greenhouse gases are air pollutants that may be regulated under the Clean Air Act. This change in the law after we filed Connecticut v. AEP altered the legal terrain and resulted in the preclusion of our federal tort claim years after it was filed. However, the Second Circuit Court of Appeals’ decision holding that global warming tort victims have standing and may pursue a claim for global warming injuries under federal tort law, and rejecting defendants’ “political question” argument, remains good law. In addition, since there were state law tort claims pending that had never been ruled upon and the plaintiffs voluntarily dismissed their cases after the U.S. Supreme Court ruled against the federal claim, the cases ended with no final judgment on any of the claims and thus could be reinstated at any time.