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10-174 American Electric Power Co., Inc. v. Connecticut

By: WISCONSIN LAW JOURNAL STAFF//June 20, 2011//

10-174 American Electric Power Co., Inc. v. Connecticut

By: WISCONSIN LAW JOURNAL STAFF//June 20, 2011//

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Environmental Law
Clean Air Act

The Clean Air Act displaces state law actions to seek abatement of carbon dioxide emissions from power plants.

The Act’s prescribed order of decision-making—first by the expert agency, and then by federal judges—is yet another reason to resist setting emissions standards by judicial decree under federal tort law. The appropriate amount of regulation in a particular greenhouse gas-producing sector requires informed assessment of competing interests. The Clean Air Act entrusts such complex balancing to EPA in the first instance, in combination with state regulators. The expert agency is surely better equipped to do the job than federal judges, who lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order. The plaintiffs’ proposal to have federal judges determine, in the first instance, what amount of carbon-dioxide emissions is “unreasonable” and what level of reduction is necessary cannot be reconciled with Congress’ scheme.

582 F. 3d 309, reversed and remanded.

10-174 American Electric Power Co., Inc. v. Connecticut

Ginsburg, J.; Alito, J., concurring

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