Siding with the defendants, the Obama administration has urged the U.S. Supreme Court to vacate the 2nd U.S. Circuit Court of Appeals' decision in American Electric Power v. Connecticut (AEP), which allowed Connecticut and several other states to seek greenhouse gas reductions under federal common law nuisance claims. (American Electric Power Co. v. Connecticut, No. 10-174, brief filed 8/24/10). Representing the Tennessee Valley Authority (TVA), a quasi-government agency, acting Solicitor General Neal Katyal asked the court to remand the case back to the 2nd Circuit to consider whether allowing the case to proceed would undermine recent greenhouse gas regulatory actions by the EPA. Even though TVA is a party in the case, the solicitor general's voice is pretty powerful with the Supreme Court.

The 2nd Circuit decision is considered by many to be the most significant decision currently before the Supreme Court. As discussed below, Gardere filed an amicus brief in the U.S. Supreme Court in support of a petition for certiorari.