Waiting for Connecticut v. AEP

This One Will Show Up

I like New York in June.  The Supreme Court, not so much.

June is when the Court finishes up its term and releases any decisions still pending.  This year, that means we will soon get a ruling on Connecticut v. AEP, the public nuisance climate case, which was argued in April.  Just so you can keep score at home, here are the possibilities:

1)  Affirmance.  Great on policy, but questionable on the law.  (The displacement claim, in my view, is quite strong).

2)  Dismissal on displacement grounds.  Worse on policy, but probably right on the law.

3)  Dismissal on standing grounds.  Worse on law and policy, because it would indicate that standing for states under Massachusetts v. EPA  is very narrow; it would represent a retreat from that decision, and probably cause other mischief, as right-wing lower courts use it to slam the courthouse door on more claimants.

4)  Dismissal on displacement grounds and providing guidance on how to handle state common law claims.  This would handle the problem presented in Int’l Paper Co. v. Ouellette, the 1987 Supreme Court decision that held that the Clean Water Act did not displace state common-law nuisance claims.  Ouellette also held, however, that such state claims must be decided under the sending state’s common law, a bizarre result that should not be replicated here.  In any event, because the displacement of federal common law would resuscitate state common law and raise statutory pre-emption questions, the Court could rule on this matter even if it has not been briefed.

5) Dismissal on displacement grounds and a ruling holding that state common law actions are also pre-empted.  In my view, this would be the worst both on law and policy, although a couple of justices appeared to discuss it at oral argument.  The state law pre-emption issue was not briefed, and in any event, it would be a seriously flawed reading of the Clean Air Act.  This sort of reactionary activism, however, is just the sort of thing that Chief Justice Roberts loves.

And after all of this, the Blue Plate Special, which could occur no matter what the end result:

Plurality games.  Because Justice Sotomayor heard this case while on the Second Circuit even though she did not participate in the decision, she has taken the high road and recused herself from the case (a road that Justice Thomas has refuses to take for challenges to health reform despite a far more egregious conflict-of-interest).  But an 8-person court missing one of the sane justices means that the Four Horseman can write a horrific opinion that might not gain a majority, but could technically be considered a plurality if there is not a unified opinion on the other side.  This occurred in Stop the Beach Renourishment v. Florida Dept. of Environmental Protection, last term’s major takings case (with Stevens recusing himself there), and we can expect more mischief here. 

Any predictions?

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Reader Comments

2 Replies to “Waiting for Connecticut v. AEP”

  1. I don’t get your recusal comment. Justice Sotomayor has recused from every case that was before the Second circuit while she was a judge there, just as Chief Justice Roberts recused from equivalent D.C. Circuit cases, Alito from Third Circuit cases, and so on. Her recusal was no surprise, and it wasn’t even a close call as she was on the panel that heard the case (and sat on it for several years). You’re the only person I’ve ever seen who’s even suggested her recusal was not a no brainer.

    There may be grounds for Justice Thomas to recuse, but the Daily Kos item to which you link does not provide any basis for recusal. Perhaps the rule should be different, but there’s no precedent for requiring recusal because a spouse works for an organization or entity that prefers a given outcome in a case. So it’s not clear why Thomas has to recuse here, any more than Justice Ginsburg had to recuse in tax cases before her husband died, or any more than Judge Rienhardt had to recuse in the Prop. 8 litigation because of his wife’s work with the ACLU. It seems to me all these cases go together, and I see no reason why the conventional practice is the wrong approach. And as for Thomas’ speeches before conservative groups, Justice Ginsburg has done much the same with the ACLU, and even accepted a prestigious award from the group, but doesn’t recuse in their cases. Again, holding Justice Thomas to the same standard that has been applied to everyone else means no recusal. (I’d also add that, if anything, it’s probably in Virginia Thomas’ interest for the federal government to prevail, as that would lead to more consulting and lobbying fees.)


  2. Jon, let’s think about it this way. Sotomayor did not participate in the decision in AEP in the Second Circuit. She never expressed an opinion. She has no inside information. She has no conflict-of-interest. Yet she is supposed to recuse herself (this would apply to Roberts and Alito as well).

    The organization that pays Virginia Thomas’ salary is devoted to the proposition that the Affordable Care Act is an infringement on basic freedoms and runs afoul of the Constitution. She is on record as saying as much. Yet somehow this in no way reflects any sort of conflict-of-interest, or even an appearance of a conflict of interest, on her husband’s part. (This would apply to Reinhardt as well).

    My point is similar to that of Michael Kinsley’s on campaign finance: it’s what’s legal that’s the scandal.

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About Jonathan

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…

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About Jonathan

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…

READ more

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