Connecticut v. AEP
Ninth Circuit Rules Against Indian Tribe’s Climate Change Suit
Not much of a surprise here; a Ninth Circuit panel “has ruled against the northwest Alaska village of Kivalina, which sued energy companies over claims that greenhouse emissions contributed to global warming that is threatening the community’s existence.” The village brought a common-law public nuisance claim against the oil companies, but the panel held that …
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CONTINUE READINGLegal Planet Takes Over the Yale Law Journal
Along with Dan, I also have a response to the Ewing/Kysar paper at YLJ Online. (For those of your keeping score at home, two out of three commissioned responses were Legal Planet bloggers: we win!). It should surprise no one that while Dan’s is elegant and technical, mine is cranky and dyspeptic. Here’s the abstract: This …
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CONTINUE READINGConn. v. AEP: Never Underestimate Congressional Power to Do Damage
Dan’s and Rick’s posts very helpfully summarize the impacts of the Court’s decision today. (They were also probably written at the same time: great minds think alike). But I’m a little more pessimistic than Dan is concerning Congressional action. He suggests that the decision makes it more complex for Congress to repeal EPA jurisdiction since …
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CONTINUE READINGWaiting for Connecticut v. AEP
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, …
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CONTINUE READINGGlobalizing Public Nuisance
Let’s assume, as most of us on this blog do, that the Supreme Court will get rid of the public nuisance climate change when it decides Connecticut v. AEP a few weeks from now. Does that get rid of public nuisance climate cases? Not necessarily. Whatever one may think of the Clean Air Act’s displacement …
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CONTINUE READINGSolicitor General Katyal Flunks Supreme Court History
At least he did at the oral argument in Connecticut v. AEP yesterday: [Lawyer for the state plaintiffs Barbara] Underwood, pressed to cite past court cases that might show this particular lawsuit could work in court, had no close parallels to rely upon. Chief Justice John G. Roberts, Jr., had pressed her to come up …
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CONTINUE READINGSaving Public Nuisance
I agree with Rick’s take on the oral argument in Connecticut v. AEP — in fact, so much so that I predicted it three years ago! But if the Supreme Court overturns the Second Circuit on the viability of a federal common law claim, that actually makes the viability of state common law claims stronger. …
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CONTINUE READINGConnecticut v. AEP: The Judicial Power of the Purse
That’s not my phrase: it’s Jerry Frug’s. But it applies here. Rhead reports that in the Connecticut v. AEP argument, Justice Breyer, setting up one of his classic hypotheticals, wanted to know why a judge should not impose a $20-a-ton carbon tax as a judicial remedy. (Answer: because he can’t.) It’s not clear to me …
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CONTINUE READINGCert in Connecticut v. AEP: Eight Comments
1) Well, Obama got what he wanted. And it’s a good thing, too: by attempting to short-circuit public nuisance suits, he established his good faith on climate change and paved the way for bipartisan cooperation. 2) It is absurd to argue that a common-law tort claim runs afoul of the political question doctrine. I’m not …
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CONTINUE READINGConnecticut v. AEP Cert Decision Soon?
A reporter just called me for background on the climate change public nuisance case from the Second Circuit, Connecticut v. AEP. She said, “As you probably know, the Supreme Court will announce on Monday whether it will take the case.” Um, no, actually: I didn’t know that. The Supremes make their decisions throughout the year, …
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