Remarks on Connecticut v. American Electric Power

• Date: 01 October 2010

10-2010 NEWS & ANALYSIS 40 ELR 10953

A R T I C L E S

Remarks on Connecticut v.

American Electric Power

by Hon. Peter Hall

Peter Hall is a federal judge on the U.S. Court of Appeals for the Second Circuit.

I

was told that part of the reason I was invited to speak

here was that I had given a warm welcome to par tici-

pants at a recent “takings” program held at the Vermont

Law School. e other reason was my involvement in the

recent case from my circuit t hat my chambers has been in

the habit of referring to as the “global warming” ca se, and

which I think t he legal community now knows as American

Electric Power,1 or AEP, as I see it referred to in cases from

time to time.

One thing to get ready to speak here, that I suspect any-

one would do, is look to see what relevant commentary, if

any, there is out there and also how any other courts have

treated the analysis, if at all, that we undertook in the AEP

decision. In doing so, I violated a cardinal rule I had as a trial

attorney, which was never, ever read what the media is say-

ing about you while you’re mid-trial. I was delighted to nd

that the district courts in my circuit cited it with approval.

In Central California, however, there was one case that was

perhaps due for somewhat dierent treatment if it went up

on appeal.

e problem with giving remarks like this particularly

around judicial decisions is that I’m a judge, a nd what I say

here may be held against me by someone in the future or may

cause someone legitimately, whether I intend it or not, to

question my impart iality. I know that my predecessor from

Vermont, the Hon. James Oakes, who served as Chief Judge

of the U.S. Court of Appeals for the Second Circuit, gave

remarks at this program about two decades ago out in Cali-

fornia. He had just authored an opinion that I understand

he was more than pleased to talk about. My former law rm

was on the losing side of that decision, and I had helped work

on the brief. I will note that about two-thirds of that opinion

was devoted to talk ing about Vermont state law—the won-

derful creation known as Act 250, our environmental per-

mitting law—a nd had perhaps less to do with federal law. I

think Judge Oakes, in speaking, was t herefore freer to hold

forth on Vermont law, since we all know that anything that a

federal judge says about state law amounts to dicta.

AEP, on the other hand, is a discussion purely of federal

law or federal law principles. us, given the probability that

1. Connecticut v. AEP, 582 F.3d 309, 39 ELR 20215 (2d Cir. 2009).

I will encounter some or all of these issues again, perhaps even

in AEP itself, I will be more circumspect about my remarks

and make the following disclaimer: Anything I say this after-

noon that appears to be in any way at odds with what I have

written, is not intended to be so and, thus, it is not.

I know a number of people have told me that t hey’ve

read the decision; for those who haven’t, I am going to run

through it, and then I just want to pick up on a few points

and make some brief comments.

ere were two cases that were consolidated in front of the

district court in the Southern District of New York. In one

of them, seven states and the city of New York were suing

power companies: American Electric Power and a subsidiary

and several others. ere was also a separate suit consoli-

dated with the rst before the district court (Judge Loretta

A. Preska) brought by Land Trusts against the same set of

power companies. e case was decided on a motion to dis-

miss. e complaint a lleged in part, at least as to the power

companies, that they produced one-quarter of the power sec-

tor’s carbon dioxide (CO2), that there were millions of tons

of CO2 a year produced by them going into the atmosphere,

and that that CO2 constituted 10% of those emissions in the

United States. e states asserted that there was substantial

impact from these emissions costing them billions of dollars

to x. ere was a present injury alleged with respect to t he

state of California and the already ongoing diminishment of

the snow pack and the resu lting eect. Principally, however,

the states asserted that the impact of the CO2 emissions on

global warming was something that was going to occur in

the future and would increase.

e Trusts, in a slightly dierent position, of course,

asserted that they held land for the public to enjoy, they

were the owners of those large tracts of land, and these

were being aected much in t he same way as the land that

the states were asserting wa s subject to the eects of global

warming. e Trusts also alleged—where this goes, we

won’t know for a while—that one of the eects of global

warming on the Trusts’ property was a diminishment of the

aesthetics of that property.

ere were motions to dismiss led by the power com-

panies. ey asserted a whole range of defenses, if you will,

Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.