Bradford C. Mank *
In American Electric Power Co. v. Connecticut (“AEP”), eight Justices of the U.S. Supreme Court unanimously concluded that the U.S. Environmental Protection Agency’s (the “EPA”) authority to regulate greenhouse gases (“GHGs”) pursuant to the Clean Air Act, which the Court recognized in its 2007 decision in Massachusetts v. EPA, “displace[s] any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.” Thus, the AEP decision endorsed the Massachusetts decision’s interpretation of the Clean Air Act to include regulation of GHGs, stating that it “speaks directly to emissions of carbon dioxide from the defendants’ plants.” Justice Sonia Sotomayor recused herself from hearing the AEP case because she sat on the three-judge panel of the U.S. Court of Appeals for the Second Circuit that heard the case below, although she was appointed to the Supreme Court before the Second Circuit actually decided the case. Her absence was crucial to the Supreme Court’s decision regarding standing and jurisdiction in the case. The Court, by an equally divided vote of four to four, affirmed the Second Circuit’s decision finding standing and jurisdiction in the case.
* James Helmer, Jr., Professor of Law, University of Cincinnati College. J.D., 1987, Yale University; A.B., 1983, Harvard University.