The United States Supreme Court decided yesterday to take up the case of American Electric Power v. Connecticut. This case represents one of a few around the country that asks the question, are states able to regulate greenhouse gas emissions as a public nuisance under federal law?
The plaintiffs will argue that American Electric Power, and other power companies, are causing a public nuisance by releasing greenhouse gas emissions into the air. They hope that the court sees it their way and will allow the regulation of greenhouse gas emissions under federal common law. American Electric Power will argue that the Clean Air Act supersedes federal common law.
Of note in this case, Justice Sotomayor recused herself from the case due to the fact she was involved with the case when serving on the 2nd U.S. Circuit Court of Appeals. This makes the prospect of a 4-4 split in the case possible. If a split does result that would mean the 2nd Circuit ruling would stand. On September 21, 2009 the 2nd Circuit ruled that the eight states, New York city and other environmental groups were permitted to bring a public nuisance suit against the power companies.