Has the Supreme Court frozen climate change litigation?
Wansheng Jerry Liu (firstname.lastname@example.org) practices in the intellectual property department of Fox Rothschild LLP, residing in its Princeton office. David Restaino (drestaino@ foxrothschild.com) provides compliance counsel at Fox Rothschild in many subject matter areas, including regulatory aspects of environmental law.
In April 2007, the U.S. Supreme Court delivered its landmark decision, Massachusetts v. EPA (Massachusetts), confirming the government’s ability to regulate greenhouse gases.1 That decision can be considered the “end of the beginning” of the battle against climate change. Since then, proponents of a forceful climate change response have taken matters into their own hands and filed federal nuisance claims against large emitters of greenhouse gases. These efforts have led to a second climate change case, American Electric Power v. Connecticut (AEP), recently decided by the U.S. Supreme Court.2
AEP strongly limits private nuisance actions by keeping them out of federal court. But AEP isn’t the next big step in climate change litigation even though it reined in wayward plaintiffs. Instead, the case won’t stop the expansion of the government’s greenhouse gas toolbox, and won’t even prevent private plaintiffs from filing similar actions in state court. Nevertheless, its holding represents an important ruling regarding climate change that shouldn’t be underestimated.