Cases & Deals

Xcel Energy and other energy utilities obtain unanimous Supreme Court ruling blocking attempts by states and private land trusts to battle climate change through federal common law public nuisance lawsuit

Clients Xcel Energy Inc.

Jones Day represented Xcel Energy, Inc. in connection with a global warming lawsuit brought by the Attorneys General of eight states and the city of New York and two private citizen groups against American Electric Power Co., Inc., Cinergy Corp., Southern Co., Xcel Energy Inc., and the Tennessee Valley Authority. The suit, filed in the Southern District of New York in July 2004, alleged that the utilities' carbon dioxide emissions from coal-fired electric power plants contributed to global warming and sought an injunctive order limiting the amount of CO2 emissions from the utilities' plants.

The primary issue in the case concerned whether the authority to regulate greenhouse gas emissions is vested solely in the U.S. Environmental Protection Agency, or whether a party can assert a federal common law claim challenging a company's carbon dioxide emissions as a public nuisance. The United States District Court for the Southern District of New York dismissed the complaint on the grounds that plaintiffs' claim raised a non-justiciable political question. In September 2009, the Second Circuit Court of Appeals reversed the District Court, holding that the plaintiffs' federal common law claims were not barred on political question or standing grounds.

The unanimous U.S. Supreme Court decision, issued in June 2011, held that the federal Clean Air Act and U.S. Environmental Protection Agency "displace" any federal common law claim that CO2 emissions from fossil fuel power plants allegedly cause injuries as a result of global climate change.

Connecticut, et al. v. American Elec. Power, et al., 406 F. Supp. 2d 265 (S.D.N.Y. 2005), rev'd, 582 F.3d 309 (2d Cir. 2009), rev'd, No. 10-174 (S.Ct. 2011)

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