In 2007, the U.S. Supreme Court held that the EPA had the legal authority to regulate carbon dioxide and other greenhouse gases as pollutants under the Clean Air Act in Massachusetts v. EPA. Since then, the limelight has shifted to the U.S. Environmental Protection Agency to determine whether and how to regulate greenhouse gases under its existing Clean Air Act authorities and also to Congress to consider new climate change legislation such as the pending Waxman-Markey bill. Ongoing lawsuits seeking to use common law actions to limit greenhouse gas emissions have mostly fallen below the popular media’s radar screen. Two recent decisions from U.S. courts of appeals, however, have shifted that focus by breathing new life into common law challenges, and thereby dramatically altering the judicial landscape.
The AEP Case
In Connecticut v. American Electric Power Co. Inc. , eight states, New York City and four land trusts brought federal common law claims against six electric power companies seeking to abate their greenhouse gas emissions. The plaintiffs contended that the emissions constituted a public nuisance actionable under federal common law or alternatively under state common law, according to the opinion. The plaintiffs alleged that increased illnesses and deaths, land erosion, land inundation from sea level rise, droughts, floods and other serious injuries would result from the defendants’ ongoing emissions.
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