AEP v. Connecticut: A Comparison of the Briefs Filed by the Defendant Electric Utilities

By Julia Ciardullo

On January 31, 2011, five investor-owned utilities[1] (Petitioners) and the Tennessee Valley Authority (TVA), an electric utility owned by the US government, filed separate briefs with the United States Supreme Court (USSC) in American Electric Power Co. Inc., et al., v. Connecticut, et al. (No. 10-174).  The case concerns the right of states and private parties to sue electric utilities for contributing to climate change based on a theory of public nuisance.[2]

Although, as a general matter, both Petitioners and TVA raise lack of standing, displacement, and the political question doctrine as grounds for reversal, TVA’s arguments are narrower than Petitioners’.  In addition, Petitioners argue that there is no federal common law nuisance cause of action, a claim not made by TVA.  This post summarizes and compares the arguments made in the two briefs.


Petitioners argue that plaintiffs lack both constitutional (Article III) standing and prudential standing.  (Prudential standing bars adjudication of “generalized grievances more appropriately addressed in the representative branches.”)  TVA, on the other hand, argues that plaintiffs lack prudential standing only, and acknowledges that at least some of the state plaintiffs would be able to show that they have Article III standing in their capacity as sovereign landowners based on Massachusetts v. EPA.[3]

With respect to Article III standing, Petitioners argue that plaintiffs fail to show two of the three requirements set forth in Lujan v. Defenders of Wildlife[4]: causation and redressability.  Specifically, with respect to causation, Petitioners argue that there is no direct connection between the electric utilities’ emissions and the injuries alleged by plaintiffs, and the alleged causal chain impermissibly depends on the independent actions of third parties not before the court.   With respect to redressability, Petitioners argue that the relief sought by plaintiffs will not, without broader reductions in greenhouse gas (GHG) emissions, slow or reverse climate change or prevent future harm.

In addition, Petitioners argue that Massachusetts v. EPA, which the Second Circuit Court of Appeals relied on to establish causation and redressability, is distinguishable from this case.  In Massachusetts v. EPA, the court considered whether the petitioner had standing to pursue a statutory cause of action enacted by Congress, not a common law nuisance claim.  Petitioners contend that this distinction is “of critical importance” to the standing inquiry because in a statutory cause of action, “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.”  In Massachusetts v. EPA, the court found that Congress’s decision to create a specific legal right allowed a relaxed causation and redressability analysis for standing to enforce that right.  Here, there is no act of Congress authorizing plaintiffs’ cause of action.  Plaintiffs have not invoked the Clean Air Act’s (CAA) citizen suit provision and there is no federal statute authorizing federal courts, at the behest of certain injured parties, to enjoin unreasonable emissions of GHGs.  Thus, Petitioners argue, plaintiffs may not rely on Massachusetts v. EPA and must instead satisfy traditional causation and redressability requirements.

TVA rejects this argument, stating that plaintiffs’ chains of causation and redressability are actually shorter here than they were in Massachusetts v. EPA because they seek judicial relief directly from the entities responsible for the allegedly unlawful emissions.

Federal Common Law

Petitioners argue that even if plaintiffs have standing, there is no federal common law nuisance cause of action to address the alleged effects of climate change.  TVA did not make a similar claim in their brief.

Specifically, Petitioners argue that the federal nuisance cause of action asserted by plaintiffs does not arise under any federal statute, nor are the courts justified in creating a federal cause of action.  According to Petitioners, the USSC has upheld the creation of federal common law in only three “enclaves”:  (1) controversies concerned with the rights and obligations of the US; (2) admiralty cases; and (3) interstate and international disputes implicating the conflicting rights of states or the US’s relations with foreign nations, none of which exist here. 

Petitioners further argue that two considerations militate powerfully against the creation of a federal common law cause of action in this case: (1) the nature and complexities of global climate change, and the possible ramifications of recognizing a cause of action; and (2) recognizing a cause of action could undermine any federal interest in coordinating GHG emission regulations.


Both Petitioners and TVA argue that plaintiffs’ federal common law claims are displaced; however, each of their arguments differ somewhat.  Petitioners contend that even if plaintiffs’ claims were theoretically cognizable under federal common law, Congress’s enactment of the CAA is itself sufficient to displace such claims.  TVA, in contrast, argues that the mere enactment of the CAA is not sufficient; rather, EPA’s newly-finalized GHG regulations displace plaintiffs’ federal common law claims.

In particular, Petitioners argue that the CAA is a comprehensive regulatory scheme to address environmental pollution, and thus plaintiffs’ claims would be displaced whether or not EPA exercises its full regulatory authority under that Act.  Even if, for example, EPA had found that GHGs do not endanger the public health and welfare, Petitioners claim that “there would be no basis for a federal court then to make a competing assessment under a federal common law of torts.”

TVA disagrees.  They argue that displacement has only occurred because EPA has exercised its authority under the CAA, thus directly entering the field that would be governed by plaintiffs’ common law nuisance suits.  TVA further argues that the CAA differs in important respects from the Clean Water Act (CWA), which was found in other cases to have displaced federal common law limits on the discharge of pollutants into US waters.  Specifically, TVA argues that the terms of the CWA directly prohibit the discharge of pollutants into US waters without authorization from a proper permitting authority, whereas the terms of the CAA impose few restrictions on the emissions of air pollutants in the absence of regulations promulgated by EPA. 

TVA cites two recent regulatory actions undertaken by EPA – the endangerment finding and the “tailpipe rule” – which together rendered GHGs “pollutant[s] subject to regulation” under the CAA for purposes of the Prevention of Significant Deterioration (PSD) and Title V permitting processes for new and modified facilities.  (Petitioners, on the other hand, contend that GHGs were held to be pollutants under the CAA by Massachusetts v. EPA).  TVA argues that additional EPA regulations, such as the “tailoring rule” and a proposed settlement agreement on New Source Performance Standards (NSPS) for utility boilers, reinforce this conclusion.  In addition, the settlement agreement, if adopted, would require EPA to consider standards for existing facilities – the very facilities at issue in this case.

Political Question Doctrine/Non-Justiciability

Petitioners argue that the case presents non-justiciable political questions because the adjudication of the claims would require an impermissible “initial policy determination” made in the absence of “judicially discoverable and manageable standards.”

TVA acknowledges that the case raises these concerns, but argues that plaintiffs’ lack of prudential standing provides a more appropriate basis for a dismissal on the grounds of non-justiciability.  In particular, TVA argues that if this case did not involve a challenge to a phenomenon that is so widely caused and has an impact that is so widely experienced (which demonstrates that plaintiffs lack prudential standing), and if EPA had not commenced regulating GHGs under the CAA (which demonstrates that any common law claim has been displaced), the concerns cited by Petitioner would markedly diminish.  Thus, TVA argues that although the USSC could rely on the political question doctrine to dismiss this case, a decision on prudential standing grounds or the displacement analysis would be a more appropriate and tailored means of withholding judicial relief.

Finally, TVA argues that once the court resolves the case based on prudential standing grounds, it need not consider any of the other grounds, including Article III standing or the political question doctrine.

A copy of Petitioners’ brief can be found here; TVA’s brief can be found here.  Opposing briefs are due March 11, 2011.  Oral arguments are scheduled for April 19, 2011.


[1] American Electric Power Co. Inc., American Electric Power Service Corp., Cinergy Corp., Southern Co. and Xcel Energy Inc.

[2] A coalition of eight state attorneys general, the City of New York, and three land trusts sued Petitioners and TVA in 2004.  Plaintiffs seek to cap the utilities’ greenhouse gas emissions and then reduce them to judicially prescribed levels.  The District Court dismissed the case in 2005 on the grounds that it presented non-justiciable political questions.  In 2009, the Second Circuit Court of Appeals reversed.  The utilities appealed, and the United States Supreme Court granted certiorari on December 6, 2010.

[3] 549 U.S. 497 (2007).

[4] 504 U.S. 555 (1992).

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