SCOTUS Rejects Federal Common Law Global Warming Claim

by Karl Coplan

The Supreme Court issues its decision in SCOTUS v American Electric Power this morning.  Not surprisingly, the Court found in a 8-0 opinion that EPA’s authority to regulate greenhouse gases under the Clean Air Act, affirmed by the Court in Massachusetts v EPA, “displaces” any federal common law nuisance claim for interstate air pollution resulting in climate change.

The Court left open the possibility that state common law nuisance claims might still apply, based on the law of the source state under International Paper v Ouellette.

Interestingly, the court also did not disturb the Second Circuit’s finding it had jurisdiction over the case (as against defendants’ political question and standing defenses).  The opinion for the court notes that the court was split 4-4 on this question (Justice Sotomayor recused herself from the case), but, in a departure from usual practices, there were no separate opinions on this issue.

The standing and political question defenses have never made sense to me: if the common law provides a remedy, there is standing almost by definition; likewise, if the common law provides a remedy, then there is no “political question” objection to courts carrying out their assigned common law function.

An interesting question: if Congress succeeds in divesting EPA of jurisdiction over greenhouse gas emissions, does the federal common law claim come back from displacement?


  1. Seth Davis

    A very interesting opinion, which, following the oral argument, was probably to best outcome for proponents of control of greenhouse gases that could be hoped for. Most importantly, in my view, there is no discernible erosion of the possibility of federal common law actions where no preemption exists.

    Alito’s short dissent has drawn a lot of speculation. Clearly he and Thomas are going out of their way to say they would LOVE to overrule Mass. v. EPA. But how much do we read into Roberts and Scalia not joining in the dissent? My hunch is that the Chief Justice was being very proper and not offering gratuitous opinions. But when has Scalia ever shrunk from expressing himself in that way? Could it possibly be that these two are ready to accord stare decisis status to Mass. v. EPA?

  2. Pete Harrison

    Howard Learner’s analysis in the Huffington Post addresses the interesting question of whether divestment of EPA’s GHG jurisdiction would revive the federal nuisance claim:

    “[T]he AEP decision should provide strong caution to some in Congress who are seeking to take away EPA’s jurisdiction to set carbon dioxide pollution reduction standards under the Clean Air Act. If that withdrawal of EPA jurisdiction were to become law, under AEP’s logic, then federal common law claims would be reinvigorated. There are also separation of powers issues if Congress sought to both constrain federal common law remedies and withdraw EPA jurisdiction. In short, opponents of climate change solutions can’t have it both ways.”


  3. cci 17 hmr tnt green

    Great suggestions in this post, I’ll have to personally add this to my favorites and come back to it.bulk.
    I’m wondering if you have a few following this post.

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