Written by Michael Fico
The case in American Electric Power Co. v. Connecticut involved a group of states and citizens who were concerned about global warming. They sued the top five carbon dioxide producing power plants in the US under a federal common law public nuisance theory because they believed that the plants were infringing upon their right to a healthy environment. In 2011, the Supreme Court held that this theory could not be used because the common law theory of public nuisance was displaced by a federal statute. In its analysis, the Court took a displacement test that had been established years earlier to address a water pollution issue and interpreted it to include, along with the statute’s plain language, any agency’s delegated authority under that statute. Such an interpretation seems to create a broader, and thus stricter, displacement test. This broad use of the displacement test and the Court’s policy reasons for preferring Environmental Protection Agency (EPA) authority over judicial rulemaking may spell the end for public nuisance law, depending on how the lower federal courts interpret the holding of American Electronic Power Co. and how they consider the holding’s underlying policy concerns.
The plaintiffs in American Electronic Power Co. were states and private citizens who, instead of petitioning the EPA to begin regulating carbon dioxide emissions from power plants, sued some of those plants in federal court for injunctive relief. The district court held that the global warming issue fell under the political question doctrine, which meant that it was not allowed to rule on the issue because it was one best left to the president and congress. On appeal, the US Court of Appeals for the Second Circuit reversed; it decided that federal courts were suited to judge the issue. Its first step before ruling on the merits of the case was to decide whether federal public nuisance law had been displaced.
Federal common law is displaced or replaced when a federal statute is created that has the same function as the common law. InAmerican Electronic Power Co., the US Court of Appeals for the Second Circuit used a displacement analysis handed down in the 1981 Supreme Court decision of Milwaukee v. Illinois. In that case, which involved water pollution, the Court held that since theFederal Water Pollution Control Act did not speak directly to the particular issue, the federal nuisance law had not yet been displaced. The analysis looked specifically and only at the statutory language of the act to determine common law displacement. The Second Circuit used the Milwaukee displacement test in American Electronic Power Co. in deciding that the Clean Air Act did not speak directly to the global warming issue; therefore, a federal common law nuisance cause of action similarly had not been displaced. The Court reversed, holding that the Milwaukee test was used incorrectly by the Second Circuit.
In reaching its conclusion that the federal nuisance law’s role in combating global warming had indeed been displaced by the Clean Air Act, the Court not only looked at whether the statute spoke directly to the issue, but also looked at the agency that was responsible for carrying out the statute’s directives — the EPA. The Supreme Court pointed out that the EPA was given discretionary power under the Act to regulate carbon dioxide emissions. The Court also gave policy reasons why the EPA was better-suited to handle the issue of global warming: the EPA possesses more expertise and better resources. The Court then unanimously held that it was the delegation of authority to the federal agency under the federal statute that displaced the theory of public nuisance. As a result ofAmerican Electronic Power Co., the federal law displacement analysis might be stricter than it was when the simpler Milwaukeetest was the standard. This raises the question: what is left for federal common law nuisance?
To date, there has been only one federal court that has applied theMilwaukee and American Electronic Power Co. analysis — the US Court of Appeals for the Seven Circuit in Michigan v. Army Corps of Engineers. That case involved a public nuisance claim brought several US states to stop an invasive fish species — the Asian Carp — from entering the Great Lakes and potentially ruining its ecosystem. The states wanted waterway access to the Great Lakes from the Illinois River to be permanently closed so that Asian carp cannot enter. The Corps did something less drastic: they erected an electrical barrier to keep out the fish. The states sued the Corps in federal court under a public nuisance theory and the Seventh Circuit was called upon to decide whether that theory had yet been displaced.
The Seventh Circuit’s answer to what is left of the federal common law theory of public nuisance after American Electronic Power Co.was, essentially, “not too much.” That court used the displacement analysis according to the Milwaukee and American Electronic Power Co. decisions to find that public nuisance law had not been displaced. It found that there was neither a statute which spoke directly to the Asian Carp issue nor an agency that was delegated enough authority to have displaced common law nuisance. Rather, the Seventh Circuit displaced the public nuisance theory of law inArmy Corps of Engineers for another reason. Namely, the Seventh Circuit decided that the Great Lakes would be better served in this case if nuisance law was not used. For policy reasons, the circuit court believed that, because the Corps had limited resources and more expertise, public nuisance law would only complicate the situation. Consequently, the Seventh Circuit added a third layer to its displacement analysis — judicial scrutiny.
The Seventh Circuit and Supreme Court decisions are similar in that they were both strongly based upon policy reasoning. The difference is that the Seventh Circuit acted on its policy concerns and used them to displace common law nuisance. The Supreme Court did not; perhaps only because it, in displacing common law nuisance under its Milwaukee analysis, did not have to. More federal court decisions will better illustrate what place common law public nuisance holds in environmental law but, from just these two cases, it appears thatAmerican Electronic Power Co., with its less-inclusive displacement analysis has put federal common law public nuisance on a precipice.
And the federal courts have the power to give it a final push.
