When John Wood ’11 decided to follow the federal environmental case American Electric Power Co., Inc. v. Connecticut, he pursued it all the way. Not only did Wood publish his substantial writing requirement paper about the case in the Environmental Law Reporter, a top journal in the field, but he also traveled to Washington to witness the oral argument for himself, seeing the issues raised in his article play out at the Supreme Court level.
AEP v. Connecticut involves the allegation that utility companies generating power with coal are emitting levels of carbon dioxide that contribute to global warming, with resulting damage to human health and natural resources. Asserting common-law nuisance claims, Connecticut and five other states are seeking injunctions against a group of major companies first to cap and then to reduce those greenhouse gas emissions.
Wood’s article, “Easier Said Than Done: Displacing Public Nuisance When States Sue for Climate Change Damages,” discusses the separation-of-powers issues that arise when all three federal government branches grapple with climate change simultaneously. The research for the article was supervised by Adjunct Professor Michael Livermore ’06, executive director of the Institute for Policy Integrity.
“I took a risk in writing about AEP, because my analysis could have been preempted at any time by action on climate change from Congress or the executive branch,” said Wood. “However, in the interim, Congress failed to pass climate change legislation, and the executive branch and Congress fell into an intractable power struggle over the EPA's authority to regulate greenhouse gases under the Clean Air Act. As I finalized my article, the Supreme Court granted certiorari to AEP.”
Wood attended the April 19 oral argument with Adjunct Professor Nancy Marks, the Natural Resources Defense Council senior attorney who co-teaches the Environmental Law Clinic that Wood is currently taking. He noted that the justices grappled with the distinction between preemption and displacement. Unlike the preemption of state law by federal law, displacement occurs when a federal statute knocks out the federal common law.
In his article, Wood analyzes various standards used to determine if displacement has occurred. He argues that there is a strong case to be made against displacing the federal common law when the plaintiffs are states. If the states lose public nuisance lawsuits, Wood asserts, they should lose on the merits rather than by having the courthouse doors barred to them at this preliminary stage in the litigation. He is crossing his fingers that a Supreme Court clerk will come across his article before the justices rule.
Wood came away from the argument with the sense that the plaintiffs had an uphill battle in swaying the justices. But whichever way the majority opinion goes, Wood is grateful to have been so close to the proceedings. “I am still blown away at how comprehensive and nuanced the justices' understanding was of climate change and the regulatory apparatus of the EPA,” he said. “No matter how the case comes out, I hope it galvanizes an affirmative federal response to climate change. This was a highlight of my Law School experience that I will never forget.”
Posted on April 29, 2011