Volume 35

Cap-and-Trade Under The Clean Air Act?: Rethinking Section 115

20th April 2010 By: Hannah Chang

Existing authority  under the Clean Air Act--particularly § 115 on "International Air Pollution"--could provide for the establishment of a cap-and-trade program without further Congressional action.

Connecticut v. AEP Decision

12th April 2010 By: Nancy G. Milburn

In the fall of 2009, the Second Circuit issued its long-awaited decision in Connecticut v. American Electric Power Company, a case alleging a federal common law nuisance claim based on the effects of greenhouse gases.  The Second Circuit Court of Appeals reversed a lower court dismissal of the case.  In a lengthy opinion, the Second Circuit held that plaintiffs-eight states, the City of New York, and three nonprofit entities-had standing to seek an injunction against six electrical utility companies to restrict their greenhouse gas emissions based on a public nuisance claim.  The Court also held that the claims were not barred by the political question doctrine, which forecloses courts from deciding questions that have been committed for decision to the executive and legislative branches.  Finally, the Court held that plaintiffs had stated a viable federal common law nuisance claim, which had not been displaced by congressional or regulatory action.

Connecticut v. AEP: A Long History of Nuisance Law

26th March 2010 By: Peter Lehner

The Second Circuit, in its September 21 decision in State of Connecticut v. American Electric Power Company did exactly what common law courts in America are designed to do:  resolve the parties’ differences in a peaceful fashion.  The issue before the court—the harms caused by the global warming pollution of the five largest power companies in the country—was a new setting for common law, but the basic approach of the court was deeply rooted in the fundamental precepts of our judicial system.  While the ruling is only preliminary (the case is far from having reached the merits) and may be mooted by either Congressional or administrative action, the decision is pivotal in holding that states could bring a federal common law nuisance case seeking to require the country’s largest greenhouse gas (GHG) polluters to reduce their emissions.  As such, the decision represents an encouraging reminder of the important role of the courts.

Much of the genesis of the case stems from the nature of the federal system.  When states suffer from pollution caused by sources outside the state, they generally ask the federal government to step in and address the interstate pollution.  Specific provisions in the Clean Air Act and the Clean Water Act, for example, allow states to seek such redress from EPA and impose a duty on EPA to respond.  But at times, the national government does not act.  It is part of the beauty of the federal system that in such cases the citizens of the downwind (or downstream) state are not left hopeless and helpless.  If the federal government does not act, the states themselves may act.

Field Reports Launches

26th March 2010  

The Columbia Journal of Environmental Law is pleased to announce the first article for its online-only publication, Field Reports.  In “Connecticut v. AEP Decision,” Nancy Milburn provides a detailed overview of a recent climate change litigation decision and how it relates to similar cases in the 5th and 9th Circuits.  In his essay “Connecticut v. AEP:  A Long History of Nuisance Law,” Peter Lehner provides an insightful analysis of the same decision from the perspective of one of the participating attorneys.  This decision represents one front in a rapidly evolving climate litigation field.  Together these articles provide a useful first look at this case.