Connecticut v. AEP - The End Is Very Near

Connecticut v. AEP - The End Is Very Near

September 21, 2011 20:38
by J. Wylie Donald

Not with a bang, but with a whimper. So (we predict) will be the resolution of Connecticut v. American Electric Power, of Supreme Court provenance and now remanded to the Second Circuit. And it is not because we have inside information. Rather, it is because the plaintiffs have asked to be dismissed.

On September 2 counsel for the State of New York, on behalf of all of the governmental and public interest group plaintiffs, wrote the clerk of the Second Circuit and requested: 

"These appellants have decided to withdraw their complaints, ... and would like to request that the Court remand this case to the United States District Court for the Southern District of New York that they may do so."

Plaintiffs assert that they may do so "as of right" because Defendants have not answered. Somehow, we do not think Defendants will raise an objection.
 
This result was not difficult to foresee (although, to be candid, we did not). Combatting climate change is no longer a top priority with the public or with government. In a time of pinched government budgets, and where regulation of CO2 emissions is proceeding, plaintiffs could abandon their claims and declare victory.

Defendants will claim victory on the merits, which is accurate but not the complete story.  The federal common law of nuisance will not be a basis for a successful climate change suit (notwithstanding creative arguments by the Kivalina plaintiffs before the Ninth Circuit that the Supreme Court's decision should be limited only to cases where injunctive relief is sought, not to damages cases). However, state public nuisance claims were not foreclosed, and the Second Circuit's ruling that the political question doctrine does not bar these claims still stands.  Remember also that while the Fifth Circuit Comer decision was vacated, that was on procedural grounds.  In other words, there is no merits based decision declaring that the appellate panel was wrong.

It is anybody's guess where the next climate change liability damages suit will be filed, by whom, and under what theories.  Notwithstanding two climate change decisions by the Supreme Court, the legal landscape is not even close to finished.

20110902 Letter withdrawing by plaintiffs in AEP v Connecticut (American Electric Power).PDF (45.20 kb)

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