I've been on the road this week, so I have just now had a chance to digest the transcript of the oral argument in American Electric Power v. Connecticut. While questions and comments at oral argument are no sure guide to the decision, in this case it seems fairly evident that the Court is searching for the best way to get this problem out of the judiciary and into the political branches of government. My sense is that the first divide is between a ruling on a threshold matter -- standing, political question -- and the next issue is whether a merits decision should be rooted in 1) displacement of federal common law by the existence of the Clean Air Act or 2) displacement plus preemption of state law claims as well by the Clean Air Act.
Because this case is brought by a state, the unusual standing rules of Mass v. EPA apply. A conclusion that the plaintiffs have standing does not extend the ambit of Article III standing -- it is just another application of the "special solicitude" that states receive when they bring parens patriae claims. The political question doctrine does not fully divest courts of the issue because it has no application to state law nuisance claims asserted in state courts. On the merits, the displacement-only claim terminates the federal common law nuisance claim but leaves analogous state claims alive. So, the only way to rid these claims from the judicial system is a ruling that the Clean Air Act, as interpreted by Mass v. EPA, both displaces federal common law and preempts state nuisance claims.
We shall see.
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