Document Type

Article

Publication Date

2012

Center/Program

Sabin Center for Climate Change Law

Abstract

In American Electric Power Co. : Connecticut (AEP),1 the Supreme Court explicitly left ajar the door to litigation under state (as opposed to federal) common law for greenhouse gas (GHG) emissions. Some plaintiffs' lawyers are also arguing that the decision leaves room for seeking money damages (rather than injunctive relief) even in a federal common law case.

For purposes of this Article, let's imagine a world in which the courthouse doors are swung open to common law claims for damages for GHG emissions, and the courts have rejected all defenses based on displacement, preemption, political question, and standing. In other words, the plaintiffs finally are able to litigate the merits. What would that litigation look like?

Because I have spent thirty years as a practicing environmental litigator (sometimes acting for plaintiffs, sometimes for defendants)2 prior to entering academia, my head swims with the challenges such a case would pose. Most of the voluminous commentary on the common law GHG cases looks at the threshold issues; let's now peer across the threshold and see what's on the other side. What we'll find is an extraordinary number of open questions that would face the parties and the courts; in this Article I attempt to enumerate them, without undertaking the daunting task of answering them.

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