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Does the Judiciary Have the Tools for Regulating Greenhouse Gas Emissions?

Does the Judiciary Have the Tools for Regulating Greenhouse Gas Emissions?

Full Title:  Does the Judiciary Have the Tools for Regulating Greenhouse Gas Emissions?
Author(s):  Victor E. Schwartz, Phil Goldberg, Christopher E. Appel
Publisher(s):  Valparaiso University Law Review
Publication Date: January 1, 2012
Full Text: Download Resource
Description (excerpt):

In American Electric Power Co. v. Connecticut, the Supreme Court of the United States spoke for the first time regarding the propriety of using common law tort actions to regulate greenhouse gas (“GHG”) emissions in the United States. Eight state attorneys general, the City of New York, and several land trusts claimed a federal common law right of action against private and public energy companies to remedy alleged injuries associated with the “public nuisance” of global climate change. A unanimous Court rejected the claim. It held that the appropriate path for regulating GHG emissions is through the Environmental Protection Agency (“EPA”) acting pursuant to congressional authority and that, through the Clean Air Act (“CAA”), Congress had displaced any federal common law action seeking to limit GHG emissions. The Court did not stop there. It also stated that there is “no room for a parallel track” of tort litigation and issued a broad warning against global climate change litigation. It said the judiciary, given its limited tools, does not have the institutional competence to determine “[t]he appropriate amount of regulation” for sources of carbon dioxide given the impact such a decision would have on the “energy needs” of the American people.

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