AEP v. Connecticut (Climate Change)


U.S. Supreme Court

NAHB Involvement


Several states and land trusts sued five electric utilities for emitting carbon dioxide and contributing to global climate change. The plaintiff states and trusts sued the utilities in federal district court, claiming they were contributing to a "public nuisance" and injuring the plaintiffs. Instead of relying on a statute, the plaintiffs based their claims on federal common law. The plaintiffs asked the district court to impose an emissions limit on the utilities and to monitor their compliance with this limit for at least 10 years.

The district court dismissed the states and trusts' lawsuit on the grounds that the claims presented non-justiciable "political questions," outside of the court's jurisdiction. The Second Circuit overturned the district court's opinion, finding instead that there were no political questions and that the plaintiffs had standing.

NAHB is concerned that if the court allows a federal nuisance claim for carbon greenhouse gas emissions that contribute to climate change, any industry, including residential construction, could find itself the subject of a lawsuit brought by environmental organizations or interested citizens. Additionally, the Second Circuit's decision would likely make it easier for entities that are not directly regulated by an agency action to bring lawsuits.

The utilities filed a petition for certiorari with the Supreme Court of the United States, which was granted on Dec. 6, 2010. NAHB wrote an amicus brief in support of the petitioners, arguing that the Second Circuit applied the wrong set of standing considerations to this case. NAHB's brief was filed Feb. 7, 2011. Oral argument was held April 19, 2011.

On June 20, 2011, the Supreme Court held that the Clean Air Act and the EPA action that the Act authorizes displace any federal common-law right to seek abatement of carbon dioxide emissions from fossil-fuel fired power plants. NAHB's participation in this case is now complete.