Supreme Court Sides With Energy Industry, Finding That The Clean Air Act Displaces Any Federal Common Law of Public Nuisance in Global-Warming Litigation
By John Krill (Harrisburg)
The United States Supreme Court has held that the Clean Air Act[1] “displaces” any federal common-law cause of action that might exist for the alleged public nuisance of contributing to global warming by emitting carbon dioxide, but left open the possibility of state law claims.
The Court decided 8-0 in American Electric Power Co. et al. v. Connecticut et al. that the Second Circuit erred when it allowed such a federal common-law nuisance suit by eight states and three land trusts to go forward against five major electric power companies.[2]
The Opinion of the Court, reviewing the history of the federal common law of public nuisance, focuses on the litigation several decades ago over sewage pollution of Lake Michigan. In Illinois v. City of Milwaukee, the Court found that there was a common-law cause of action maintainable by the State of Illinois to abate pollution of the lake from Milwaukee’s discharges.[3] Nine years later the Court held that the Clean Water Act amendments to the Federal Water Pollution Control Act[4] had “displaced” the federal common law claims brought by Illinois.[5]
