American Elec. Power Co. v. Connecticut (10-174)

argument 10-174

American Elec. Power Co. v. Connecticut

Supreme Court of the United States 1h 15m 6 speakers 8 chapters transcribed 6 days ago official recording ↗

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What is the Supreme Court case American Electric Power Co. v. Connecticut about?

John G. Roberts 0:01

We'll hear argument today in Case 10-174, American Electric Power Company v. Connecticut et al. Mr. Keisler.

Paul D. Clement 0:09

Mr. Chief Justice, and may it please the Court, this is a case in which the courts are being asked to perform a legislative and regulatory function in a matter in which the necessary balancing of contending policy interests is among the most complex, multifaceted, and consequential of any policy issue now before the country. The States ask that the courts assess liability and design a new common law remedy for contributing to climate change, and to do so by applying a general standard of reasonableness to determine for each defendant in this case and in future cases what, if any, its share of global reductions in greenhouse gas emissions ought to be. That would require the courts not to interpret and enforce the policy choices placed into law by the other branches, but to make those policy choices themselves.

Paul D. Clement 0:59

and all of our arguments here, that plaintiffs lack standing, that the Federal Common Law shouldn't be expanded to include this new cause of action, and that the case presents non-justiciable political questions, while all of them represent distinct points, all of them flow from the same basic separation of powers principles that establish, we believe, that the case ought to be dismissed.

John G. Roberts 1:19

That's exactly one thing that's concerned me. They do all flow from the same basic arguments. And I'm concerned why you think we should focus on prudential standing basically, which cuts off our jurisdiction at our own whim as opposed to dealing with this on the merits. In other cases, your argument is that this is too generalized for the Court to address.

Paul D. Clement 1:46

MR. Mr. Chief Justice, our principal argument has not been prudential standing. The government has focused on the prudential standing argument. We join that and we'd be happy to see the case resolved on that basis. But our principal argument on standing has been Article III standing. And we actually believe that the Court could resolve this case and address the issues in any order with one possible exception, which is that we do read the Court's decision in Steele Co. as holding that the Court has to address Article III standing before reaching the question of whether there's a valid cause of action.

Kathryn Hackett King 2:16

Mr. Kaiser, what good does it do you to have this Court say there is no Article III standing? The suit will just be brought in state court. Under state common law, and the state's rules of standing are not ours.

Paul D. Clement 2:31

Well, many states, Your Honor, have similar doctrines of standing, similar doctrines of political question. We only need one. Well, in any event, Your Honor, we believe we would have a very strong motion to dismiss in state court on a variety of grounds, including

Unknown 2:44

— We're not sure

Kathryn Hackett King 2:45

about

Paul D. Clement 2:45

that, are we?

Kathryn Hackett King 2:46

So we may be just spinning our wheels here. Indeed, you know, tapping the case to state judges instead of federal judges. I'd frankly rather have federal judges do it, probably.

Paul D. Clement 2:58

Well, as I said, Your Honor, I think we would be able to defeat a state common law claim on grounds of state law for lack of proximate cause, on standing and political question grounds that many states have that parallel these. But in any case, whichever ground the court resolves this case on, we think it's clear that the cause of action can't proceed.

Anthony M. Kennedy 3:15

Well, the Court — But if you had a State Court suit with a State plaintiff, wouldn't the State be able to adduce Federal common law as a ground for recovery? And then we'd get to the merits and see if there's a Federal common law cause of

Paul D. Clement 3:34

action. It's possible, Your Honor, although we think they'd be more likely to proceed under State common law. But either way, we don't think the elements of a state or federal common law cause of action under nuisance could be met here, and we're very confident we could defeat that claim in state court as well.

Anthony M. Kennedy 3:48

Well, we all know that you sometimes have to peek at the merits to see if they're standing. There's a little cheating that goes on. But in this case, it does seem to me that you're lacking any clear precedent.