Supreme Court

I have been irresponsible (especially since I brought the case up in my class this week) in not blogging about AEP v. Conn. (here’s an earlier post), the case considers whether common law nuisance can be used to abate greenhouse gas emissions.  The case was argued before the US Supreme Court this week.  So here are some resources, from bloggers more timely than I, to get my readers up to speed.

The oral argument transcript can be found here.

SCOTUSblog’s case page and Argument Recap.

Commentary at Legal Planet here and here and here (my students will be interested in this last link related to nuisance and remedies).


I can’t.  I couldn’t do it.  So regardless of what you think of Justice Thomas and his silence, it’s borderline amazing that he can go 5 (!) years without saying anything at oral argument.

Today, Vermont Law School’s Environmental Law Center launched its first annual Top 10 Environmental Watch List. Our environmental faculty and students from the Vermont Journal of Environmental Law researched more than 75 judicial, regulatory, and legislative actions before selecting what they consider the 10 most important environmental law and policy issues of 2010.   Read more at

With a student, I co-authored the article for No. 8 on the list, Supreme Court Reviews Genetically Modified Crops.

Here’s a list of blog posts discussing the Supreme Court’s decision to grant certiorari in the case of American Electric Power Co. v. Connecticut, a common law nuisance suit against large electric utility companies that emit greenhouse gases.

SCOTUS Grants Cert in AEP v. Connecticut; Why the Threat of Tort Liability Should Remain as Part of the Balance of Powers by Doug Kysar

Cert in Connecticut v. AEP: Eight Comments by Jonathan Zasloff


Global Warming Goes Back to Court by Jonathan Adler

See here and here.

(1) A Conn. v. AEP decision soon? Will SCOTUS take the case?

(2) An update on the climate meetings in Cancun.  But I don’t see how the U.S. can have such broad international goals given the current domestic politics of climate change.

The FDA now has the authority to regulate tobacco and has unveiled new warning labels (under a new 2009 law).  The graphics aren’t nearly as graphic as in other countries (like say Singapore), but it’s a start given the Supreme Court’s decision in FDA v. Brown & Williamson that thwarted the Clinton administration’s attempt to regulate tobacco under the Food, Drug, and Cosmetic Act.

Following the Supreme Court’s ruling in Mass. v. EPA and absent new federal climate legislation, the EPA has begun to create rules to regulate greenhouse gases under the Clean Air Act.  Now Greenwire is reporting that the new Congress may attempt to block EPA climate rules pursued under the Clean Air Act. The article states:

For the Republicans, the first order of business could be legislation to stop EPA from regulating greenhouse gases under the Clean Air Act.  Supporters of measures to block EPA’s climate regulations say it is a foregone conclusion that the Republican-controlled House will pass such a bill during the next session. And in the Senate, where Democrats have spent the past two years bemoaning the rule requiring 60 votes to defeat a filibuster, that threshold appears to be the only thing that could stop such a measure from passing.

The article then provides this useful table. The key question is whether the Dems have 40 votes and the intestinal fortitude to use at least 40 votes to filibuster any attempts to stop the EPA from regulating greenhouse gases.

From Greenwire:

Counting the ‘Ayes’

Based on previous stances and the results of yesterday’s election, a measure to prevent EPA from regulating greenhouse gases under the Clean Air Act would be likely garner at least 57 votes in the Senate during the next session, close observers say. That number includes the entire bloc of 47 Republican senators, the eventual winner of the Senate race in Alaska and at least 9 Democrats who have already pledged their support for one or more proposal. They are:
Voted for Murkowski resolution (4)
Mary Landrieu (D-La.)
Ben Nelson (D-Neb.)
Mark Pryor (D-Ark.)
Jay Rockefeller (D-W.Va.)
Co-sponsored Rockefeller bill (6)
Jay Rockefeller (D-W.Va.)
Kent Conrad (D-N.D.)
Tim Johnson (D-S.D.)
Claire McCaskill (D-Mo.)
Ben Nelson (D-Neb.)
Jim Webb (D-Va.)
Critical newcomers (1)
Joe Manchin (D-W.Va.)

And the NY Times lays out some of the interesting cases this term in the article “Justices’ Term Offers Hot Issues and Future Hints.”

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