American Electric Power v. Connecticut: The Dog That Did Not Bark

So, it’s that time of year again, campers. It’s the time when all the law nerds gather ’round expectantly and philosophize over the Supreme Court’s final opinions of the term.

And it’s no different here at the Appellate Record. We yield to no one in our lack of a rich inner life.

Lately, the talking heads were all agog about the American Electric Power opinion, how these global warming lawsuits were dead without an “activist court.”

It is astounding how much is written and how little is decided in some opinions. It’s as if the court gasps an audible “whoops,” and side steps the big issue, only to leave a muddy footprint there on the carpet to nevertheless show where it has been.

The recent case of American Electric Power v. Connecticut is just such a case. Like the famous dog from the Sherlock Holmes mystery, The Silver Blaze, the opinion is notable for what the Court did not say. Indeed, what the Court could not say.

American Electric Power v. Connecticut was one of a number of disputes from around the country where plaintiffs sued select emitters of greenhouse gasses for despoiling the planet with their CO2. (Query if long winded counsel could be joined as potentially responsible parties.)

Recall the prior Appellate Record post about how the Fifth Circuit got itself tied in knots and could not even review the issue of whether such a case presented a justiciable question–that is, plaintiffs picking a few corporations from among the billions of CO2 emitters on the planet and suing them for the nuisance of a warming earth to be caused in the future by omitting more CO2.

(Did you like the way I masked my own personal slant on that subject? Journalistic standards.)

So bow-tie-wearing lawyers like me everywhere were all a-quiver wondering what the Supreme Court would do with the first case that came along. Whack it on the noggin? Or stretch justiciability and allow it to proceed?

Answer: none of the above. Because eight is an even number and eight is all the judges they had.

The Second Circuit had found the case to be justiciable, and the Supreme Court deadlocked at four to four because Sonja Sotomayor, late of the Second Circuit, was recused.

Lacking a majority either way, the justiciability ruling contained in the Second Circuit’s terse little 139 page opinion was affirmed by default. And the court moved onto the question of whether there was a federal common law nuisance action given the EPA‘s move to fill the gap and regulate greenhouse gasses.

Answer: No.

But what about a state common law nuisance action?

Would it be preempted?

Who knows? That question was remanded.


Maybe. Depending upon which circuit (or state court) you ask.

Maybe not if you bring an odd number of judges next time.

So is there such a thing as a global warming nuisance claim? Ask the dog that did not bark.

Many years and many dollars from now.