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In this piece, Michael B. Gerrard comments on an article by Thomas D. Peterson, Robert B. McKinstry Jr., and John C. Dernbach which held two central insights: (1) Any serious national effort to control emissions of greenhouse gases must continue to leave important roles to the states; and (2) It would be a mistake to put too many eggs in the cap-and-trade basket. Although Gerrard agrees with these insights, he has reservations about the authors' proposal to use the mechanism of national ambient air quality standards and state implementation plans as a way to give states the vital roles they deserve. In discussing alternative methods to this, Gerrard delves into the topics of state action, the national ambient air quality standards, state implementation plans, and lastly, alternative approaches to state roles.
On June 20, 2011 the U.S. Supreme Court issued its much-anticipated decision in "American Electric Power v. Connecticut." This is the second climate change case to be decided by that court and the first to concern common law claims, where the plaintiffs claimed that the greenhouse gases from power plants constitute a common law nuisance, and asked the court to issue an injunction requiring the plants to reduce their emissions. The Supreme Court ruled that these kinds of disputes do not belong in the courts, and that the problems of climate change are so diffuse and nonspecific that no one has standing to go to court to challenge any governmental failure to act. This decision resolves a few issues but left many others open including: 1) whether the Supreme Court's decision bars all federal common law nuisance claims, or only those that sought injunctive relief and 2) whether the Clean Air Act preempts state public nuisance litigation over GHGs. The Supreme Court ruling along with the ensuing climate change litigations, such as challenges to federal regulations, state regulations, coal plants, and environmental impact reviews, are the subject of this report.
On June 20, 2011, the U.S. Supreme court issued its much-anticipated decision in 'American Electric Power v. Connecticut,' the second climate change case to be decided by that Court and the first to concern common law claims. The decision resolves a few issues but leaves many others open. In this article, Michael B. Gerrard explains this Supreme Court decision where it was ruled that federal common law nuisance claims could not proceed as the EPA has ultimate authority on the regulation of carbon-dioxide emissions from power plants. From this decision, the author describes various questions that were left unanswered, including whether or not the Clean Air Act preempts state public nuisance litigation over GHGs in addition to whether the Supreme Court's decision bars all federal common law nuisance claims, or only those that sought injunctive relief.