American Electric Power Co. v. Connecticut

44 Analyses of this case by attorneys

  1. State Common Law Carbon Dioxide Liability Claims: Premonitions of Preemption (and Dismissal)

    McCarter & English, LLPDecember 2, 2012

    [author: J. Wylie Donald] Left open by the Supreme Court’s decision in American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011),was the question of whether state law nuisance claims for the emission of carbon dioxide were viable in the face of the Clean Air Act. That question continued to be answered in the negative with the decision of the Western District of Pennsylvania last month in Bell v. Cheswick Generating Station, GenOn Power Midwest, L.P.(W.D. Penn. Oct. 12, 2012) (attached), which was appealed to the Third Circuit the Friday before Thanksgiving.1 In Bell, plaintiffs, neighbors to defendant’s coal-fired electricity generating plant, filed suit alleging: that the [defendant’s] atmospheric emissions fall upon their properties and leave a film of either black dust (i.e., unburned coal particulate/unburned coal combustion byproduct) or white powder (i.e., fly ash).

  2. Toxic Tort and Environmental Law Update - October 2012: Ninth Circuit Upholds Dismissal of a Public Nuisance Lawsuit

    Sedgwick LLPNovember 8, 2012

    In affirming that decision, a three-judge panel of the Ninth Circuit relied heavily on the U.S. Supreme Court's 2011 ruling in American Electric Power v. Connecticut (AEP), which held that the Clean Air Act and U.S. Environmental Protection Agency’s authority displaced federal common law claims over the emissions.SeeAmerican Electric Power Co., Inc. v. Connecticut, 131 S. Ct. 2527, 2535 (2011). In AEP, eight states, the city of New York, and three private land trusts brought a public nuisance action against various defendants for emission of carbon dioxide and other greenhouse gases that created a “‘substantial and unreasonable interference with public rights,’ in violation of the federal common law of interstate nuisance,” and sought injunctive relief through a court-ordered imposition of emissions caps.

  3. 9th Circuit: Alaska Natives Cannot Seek Damages for Climate Change from U.S. Energy Producers Based on Federal Common Law

    Davis Wright Tremaine LLPBud WalshOctober 15, 2012

    Kivalina alleged that greenhouse gases, emitted by the energy producers, crossed state lines and resulted in damage to the village. Relying on the Supreme Court’s decision in American Electric Power Co., Inc. v. Connecticut, 131 S. Ct. 2527 (2011), the 9th Circuit ruled that Congress spoke to this issue in Clean Air Act when it provided the Environmental Protection Agency (EPA) with the authority to regulate the emission of greenhouse gases from stationary and mobile sources in the United States. In the Supreme Court opinion, it was noted that EPA had already begun a rulemaking aimed at limiting greenhouse gas emissions from existing fossil-fuel power plants.

  4. Ninth Circuit Displaces Kivalina v. ExxonMobil Climate Change Liability Case

    McCarter & English, LLPSeptember 24, 2012

    This is not news. It was established by the Supreme Court over a year ago in American Electric Power v. Connecticut, 131 S. Ct. 2527 (2011). This morning, the Ninth Circuit Court of Appeals acknowledged the rule and applied it to the plaintiffs in Native Village of Kivalina v. ExxonMobil Corp. ("Opinion") and affirmed the dismissal by the Northern District of California.

  5. U.S. Climate Change Litigation Update: The Supreme Court Greenlights State Court Adjudication of Climate Claims

    Jones DayDaniella EinikMay 26, 2023

    e U.S. Supreme Court has now declined to hear a group of petitions asking the Court to reverse the remand of climate change lawsuits to state court. The immediate effect of these certiorari denials is that plaintiffs' climate claims will now proceed on the merits in their respective state courts.From the beginning, plaintiffs, perceiving strategic benefits to litigating in state court, have exclusively pleaded nominally state-law claims sounding in tort, fraud, public nuisance, and consumer protection, and argued that state courts offer the proper forum. The energy company defendants, on the other hand, have sought to remove these claims to federal courts by chiefly arguing that, while climate claims may appear as state-law claims, they are inherently federal in nature and implicate important federal interests, including the global climate, international relations, and strategic oil reserves. Federal law—including the Supreme Court's decision in American Electric Power v. Connecticut, 564 U.S. 410 (2011)on Clean Air Act displacement of certain state-law claims—could provide energy companies' with grounds to dismiss these complaints.So far, six federal circuit courts to have considered the question have held that state-law climate claims cannot be removed to federal court. Minnesota by Ellison v. Am. Petroleum Inst., 63 F.4th 703 (8th Cir. 2023); Rhode Island v. Shell Oil Prods. Co., 35 F.4th 44 (1st Cir. 2022); City of Hoboken v. Chevron Corp., 45 F.4th 699 (3d Cir. 2022); Mayor & City Council of Baltimore v. BP p.l.c., 31 F.4th 178 (4th Cir. 2022); City & County of Honolulu v. Sunoco LP, 39 F.4th 1101 (9th Cir. 2022); County of San Mateo v. Chevron Corp., 32 F.4th 733 (9th Cir. 2022); City of Oakland v. BP PLC, 969 F.3d 895 (9th Cir. 2020); Bd. of Cnty. Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238 (10th Cir. 2022). But cf. City of New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021). The defendants in these cases have sought intervention from the Sup

  6. A Case Study of BP P.L.C. v. Mayor & City Council of Baltimore and Its Potential Impact on Other Climate Lawsuits

    Sullivan & WorcesterMarch 17, 2022

    Id. at 41, quoting Rest. § 840E. Id. at 48-49, quoting American Electric Power Co. v. Connecticut, 564 U.S. 410, 423 (2011). Id. at 58-60.

  7. In Potential Blow to Climate Suits, Supreme Court Broadens Scope Of Appellate Review Of Orders Remanding Case

    Quinn Emanuel Urquhart & Sullivan, LLPAnthony AldenMay 27, 2021

    Broadly speaking, the plaintiffs allege that the defendant energy companies’ promotion and sale of fossil fuel products and purported attempts to discount climate science render them liable for the alleged effects of climate change. These cases have strategically been filed in state courts under state law tort theories and consumer protection laws, in part, to avoid a prior Supreme Court decision—American Electric Power v. Connecticut, 564 U.S. 410 (2011). There, the Court held that that EPA’s regulatory authority over carbon emissions under the Clean Air Act displaces any federal common law cause of action based on carbon emissions.

  8. Second Circuit Affirms Dismissal of New York City's Climate Suit

    Jones DayKevin HolewinskiApril 13, 2021

    The court characterized global warming as a "uniquely international problem of national concern" that is not apt for review under state nuisance law. The court also reasoned that, pursuant to the Supreme Court's decision in AEP v. Connecticut, 564 U.S. 410 (2011), and the Ninth Circuit's decision in Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 855 (9th Cir. 2012),the Clean Air Act gives the U.S. Environmental Protection Agency, not federal courts, the authority to regulate greenhouse gases domestically, thus displacing federal common law as to domestic emissions. Finally, foreign policy concerns further support judicial caution in the arena of climate change suits and call for dismissal of any remaining claims by the New York City related to foreign emissions.

  9. Second Circuit Climate Change Ruling Affirms Dismissal of State-law Claims

    King & SpaldingAshley ParrishApril 8, 2021

    7 Id. at *9–*14.8 564 U.S. 410, 424 (2011). AEP involved eight states, New York City, and three land trusts who separately sued the same electric power corporations seeking abatement of ongoing contributions to the public nuisance of global warming from fossil-fuel-fired power plants in twenty states.

  10. Climate change litigation remains in state courts (for now)

    Eversheds Sutherland (US) LLPJames OrrJune 10, 2020

    (While the Supreme Court has held that the Clean Air Act and associated regulations displace the federal common-law right to bring a nuisance claim, it has not held that the Act preempted state-law nuisance claims. See Am. Elec. Power Co. v. Connecticut, 564 US 410, 424 (2011); Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 856-58 (9th Cir. 2012).) The Ninth Circuit therefore held that the district court did not have jurisdiction at the time of removal.