In AEP v. Connecticut (2011), the Supreme Court unanimously rejected federal common law nuisance claims brought by states and cities against companies alleged to have contributed to global warming by emitting greenhouse gases. The Court held that Congress, by enacting the Clean Air Act, had displaced the federal common law of nuisance and gave jurisdiction over these issues to the EPA. The Court declined to open up a “parallel track” to enforcing carbon emissions standards in the federal system via the federal courts. Since that time, states and municipalities in California and elsewhere have brought similar suits under state nuisance law, but judges have indicated this problem needs a national solution that “must be fixed by our [other] political branches.” At present, the First, Second, Fourth, Ninth, and Tenth Circuits are hearing arguments about whether these issues belong in the federal courts, state courts, or elsewhere.
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-- Theodore J. Boutrous Jr., Partner, Gibson, Dunn & Crutcher LLP