Supreme Court

Climate attorney Glaser discusses arguments in AEP v. Connecticut

The Supreme Court tackled another major climate change case this week, this time seeking to determine whether states can regulate greenhouse gas emissions as a public nuisance under federal common law. During today's OnPoint, Peter Glaser, a partner at Troutman Sanders and chairman of the firm's climate change practice team, discusses the arguments in American Electric Power v. Connecticut. He explains how this case may affect future Clean Air Act and climate change litigation and gives his take on the justices' reactions during oral arguments.

Transcript

Monica Trauzzi: Hello and welcome to OnPoint. I'm Monica Trauzzi. Joining me today is Peter Glaser, a partner at Troutman Sanders and chair of the firm's Climate Change Practice Team. Peter, thanks for joining me.

Peter Glaser: Thank you, Monica, for having me.

Monica Trauzzi: Peter, the Supreme Court heard arguments earlier today in the American Electric Power v. Connecticut case. This case dates back to 2004. So let's backtrack for a moment. Explain to us who's involved in the case and what exactly the court is going to need to decide here.

Peter Glaser: Sure, Monica. The case really arises from a different era. When Massachusetts v. EPA was -- sorry, when Connecticut v. EPA was first brought, we had no global warming regulation ongoing by the Environmental Protection Agency. It looked like Congress was deadlocked. It looked like the administration was not going to act and so a group of states got together and decided to see if they could force congressional action by bringing a nuisance case in court. I think it was fairly well understood at the time that the purpose of the legal action was to try to force Congress's hand. So that's the way the case started, we're in a different era now. Obviously, we have had a Supreme Court decision in the Massachusetts v. EPA case and EPA has begun its regulatory program.

Monica Trauzzi: So, does the case even really make sense at this point and has it been mooted because of what has happened over the last seven years?

Peter Glaser: Well, that was certainly the argument that we were hearing today in court. One of the primary arguments being made was that EPA regulation of greenhouse gases under the Clean Air Act displaces the federal common law. That means that there's no need for common law. There's no need for judges and juries to get involved in deciding whether there should be some kind of remedy about global warming because Congress has delegated that authority to the Environmental Protection Agency. EPA has begun moving and so the argument was made that since EPA is addressing this problem, the courts don't have jurisdiction over it.

Monica Trauzzi: So, take us inside the room. How are the justices reacting to the public nuisance argument?

Peter Glaser: I think first we all have to understand that anybody that's been in an oral argument will tell you that you can't always tell from oral argument what's going to happen. You can speculate, but you don't know for sure. Having said that, I think we can go ahead and speculate a little bit. I thought the major thing that I heard at the oral argument today was most of the judges, I think actually all of the judges that asked questions expressed some level of discomfort about whether or not global warming was really something that should be decided by judges and juries in the context of federal nuisance law. I think they all felt like this was a great big global problem. It requires some different kind of solution. It should be dealt with by the political branches of government and not by the judiciary. And I think that was expressed in a number of different ways, in a number of different legal doctrines that were being discussed at the oral argument. But, in essence, that was the-that was the central nugget that we heard and it was really by all the judges, all the justices that asked questions, all of them.

Monica Trauzzi: Does a case like this further muddy the waters when it comes to action on climate change?

Peter Glaser: It might and it might not. I think it is very important for the way society deals with the global climate change issue, that we not deal with this issue through nuisance suits, through common-law nuisance suits. Whether or not-what the country should do about climate change, how we should address this. Should we address it internationally? What kind of action should we take? What are the benefits of action? What are the costs of action? How does that all balance out? These are quintessentially political questions, policy issues that, for better or worse, we go to the polls and we elect representatives and they address these issues.

Monica Trauzzi: You generally represent electric utilities and energy industry companies in your practice. If the court came down on the state side, how would that impact industry?

Peter Glaser: I think that there would be a concern about now having to spend a great deal of money to defend these cases. Keep in mind, the question before the court is not should these companies be liable, the question is simply do these cases get through the courthouse door and get a hearing on the facts before judges and juries? I think industry is fairly confident that if we do get these cases before judges and juries, that industry will prevail. The problem is the amount of time and effort and money that will be spent on that and that's something that I think industry would like to cut off.

Monica Trauzzi: Wisconsin and New Jersey were initially involved in the case, but they both withdrew. Why did the other states decide to stick it out?

Peter Glaser: Frankly, because I think these are political cases. As I said at the beginning, I think the reason why these cases were brought was because you had attorney generals in these states who decided that they wanted to force Congress's hand. They wanted to force action in Washington. It's no accident that if you look at the power plants that were in question that were the power plants owned by these five utilities, I think with one exception, they were not located in any of the plaintiff states. So, I think that as the politics changed in a couple of these other states, the desire of the attorney generals to pursue these cases changed.

Monica Trauzzi: Could this case shed some light on future Clean Air Act litigation?

Peter Glaser: It's possible. I think most of the lawyers in the case think that how the case is decided by the court will be important. The court has a number of different ways to decide this case, doctrines like standing, whether there is a common-law nuisance cause of action for something of this magnitude. These decisions could have impacts beyond just climate change and I think people will look at it in that fashion.

Monica Trauzzi: OK, we'll end it right there. Very interesting stuff. Thanks for coming on the show.

Peter Glaser: Thank you very much.

Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.

[End of Audio]

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