An "oops" from the Wall Street Journal


Author:  Damien M. Schiff

Yesterday I reported on the Supreme Court's decision in American Electric Power Co. v. Connecticut, in which the high court held that the plaintiffs' federal common law public nuisance lawsuits based on the defendants' greenhouse gas emissions were statutorily "displaced" by Congress's enactment of the Clean Air Act and delegation of emission regulatory authority to the Environmental Protection Agency.  Today's Journal has an oped from the editorial board applauding the decision, but incorrectly stating that the decision was based on the "political question doctrine."  It is true that the defendants, as well as PLF as amicus, argued that the doctrine precluded the adjudication of the plaintiffs' tort claims, because those claims boiled down to a political, not a legal, issue.  But the Court rejected that objection 4 to 4 (along with a related objection based on standing), and instead dismissed the plaintiffs' suits on the abovementioned "displacement" grounds.  Also, the Journal is wrong to conclude that, had the Supreme Court rejected the lawsuits on standing grounds, the plaintiffs would have been absolutely barred from litigating public nuisance claims against the defendants.  Nothing in the federal doctrine of standing would have precluded these same plaintiffs from bringing state law public nuisance claims in state court.  Finally, the Journal gets it wrong when it observes that, if EPA should choose not to regulate greenhouse gases at some point under the Clean Air Act, the plaintiffs' claims might be revived.  As I read the Court's opinion, the "displacement" of federal common law happened when Congress enacted the Clean Air Act and remains so whether or not EPA excercises its authority to regulate greenhouse gases under the Act.