As climate legislation stagnates in Congress, the possibility of greenhouse gas ("GHG") regulation under the Environmental Protection Agency's ("EPA") existing Clean Air Act authority as the sole federal means of addressing climate change becomes increasingly likely.  Whether EPA has existing authority to implement a cap-and-trade program for GHGs, which many believe is the cornerstone of an effective and efficient approach to controlling emissions, has as yet no definitive answer.  The various sections of the Clean Air Act that could act as authority for such a program have their own legal ambiguities and practical limitations. One largely overlooked section-§ 115 on "International Air Pollution"-however, is potentially quite powerful in its implications for the establishment of a cap-and-trade program.

In the fall of 2009, the Second Circuit issued its long-awaited decision in Connecticut v. American Electric Power Company, a case alleging a federal common law nuisance claim based on the effects of greenhouse gases.  The Second Circuit Court of Appeals reversed a lower court dismissal of the case.  In a lengthy opinion, the Second Circuit held that plaintiffs-eight states, the City of New York, and three nonprofit entities-had standing to seek an injunction against six electrical utility companies to restrict their greenhouse gas emissions based on a public nuisance claim.  The Court also held that the claims were not barred by the political question doctrine, which forecloses courts from deciding questions that have been committed for decision to the executive and legislative branches.  Finally, the Court held that plaintiffs had stated a viable federal common law nuisance claim, which had not been displaced by congressional or regulatory action.

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.

The Columbia Journal of Environmental Law is pleased to announce the first article for its online-only publication, Field Reports.  In “Connecticut v. AEP Decision,” Nancy Milburn provides a detailed overview of a recent climate change litigation decision and how it relates to similar cases in the 5^th and 9^th Circuits.  In his essay “Connecticut v. AEP:  A Long History of Nuisance Law,” Peter Lehner provides an insightful analysis of the same decision from the perspective of one of the participating attorneys.  This decision represents one front in a rapidly evolving climate litigation field.  Together these articles provide a useful first look at this case.