The Second Circuit, in its September 21 decision in State of Connecticut v. American Electric Power Company did exactly what common law courts in America are designed to do: resolve the parties’ differences in a peaceful fashion. The issue before the court—the harms caused by the global warming pollution of the five largest power companies in the country—was a new setting for common law, but the basic approach of the court was deeply rooted in the fundamental precepts of our judicial system. While the ruling is only preliminary (the case is far from having reached the merits) and may be mooted by either Congressional or administrative action, the decision is pivotal in holding that states could bring a federal common law nuisance case seeking to require the country’s largest greenhouse gas (GHG) polluters to reduce their emissions. As such, the decision represents an encouraging reminder of the important role of the courts.
Much of the genesis of the case stems from the nature of the federal system. When states suffer from pollution caused by sources outside the state, they generally ask the federal government to step in and address the interstate pollution. Specific provisions in the Clean Air Act and the Clean Water Act, for example, allow states to seek such redress from EPA and impose a duty on EPA to respond. But at times, the national government does not act. It is part of the beauty of the federal system that in such cases the citizens of the downwind (or downstream) state are not left hopeless and helpless. If the federal government does not act, the states themselves may act.
