Supreme Court Grants Cert in Connecticut v. AEP
The Supreme Court has granted the petition for certiorari filed by the defendant-appellees in Connecticut v. Am. Elec. Power Co (“AEP”). In prior posts, we discussed the details of this litigation and its long path through the appellate process. This case was one of the first in which plaintiffs raised climate-based public nuisance claims against alleged emitters of greenhouse gases.
In AEP, The Supreme Court could determine whether companies accused of emitting greenhouse gases can be held liable under public nuisance laws or whether such claims raise non-justiciable political questions. A two-judge panel of the Second Circuit – minus then-Judge Sotomayor who did not participate in the decision after being nominated to the Supreme Court – reversed the district court ruling and held that such claims could proceed. According to today’s order list, “Justice Sotomayor took no part in the consideration or decision” of the petition for certiorari.
Some had predicted that the Supreme Court might not take this case because there is not yet a split in the Circuits. Kivalina v. Exxon Mobil awaits argument in the 9th Circuit. And the 5th Circuit panel’s decision in Comer v. Murphy Oil was vacated after the Court could not find a quorum to rehear the case en banc. In August, the Comer plaintiffs petitioned the Supreme Court for a writ of mandamus, which, if granted, would effectively reinstate the original 5th Circuit panel decision that plaintiffs’ claims could proceed past the dispositive motion stage.
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