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Copyright (c) 2011 Harvard Law Review Association
Harvard Law Review

THE SUPREME COURT 2010 TERM: LEADING CASES: I. Constitutional Law: F. Separation of Powers: Displacement of Federal Common Law

November, 2011

Harvard Law Review

125 Harv. L. Rev. 271


American Electric Power Co. v. Connecticut


F. Separation of Powers
Displacement of Federal Common Law. - Although "there is no federal general common law," 1 Article III courts have long asserted their prerogative to fashion federal common law in certain circumstances, 2 such as when it is deemed necessary "to effectuate congressional policy" 3 or "to protect ... federal interests." 4 One example is environmental pollution. 5 As the scientific consensus over the causes and effects of climate change has solidified in recent decades, 6 several states, political subdivisions, and private parties have sought to invoke this federal jurisdiction to reduce the levels of greenhouse gases that companies emit into the atmosphere. 7 Last Term, in American Electric Power Co. v. Connecticut, 8 the Supreme Court held that federal legislation empowering the Environmental Protection Agency (EPA) to regulate carbon dioxide emissions displaced any federal common law right to seek abatement of such emissions from power plants. 9 American Electric clarified the Court's incoherent displacement precedent in favor of agency decisionmaking by concluding that Congress displaces federal common law simply by delegating authority to an agency. But in reasoning that agencies are better positioned than the judiciary to analyze and enforce public policy, the Court failed to consider substantial theoretical and practical limitations on agency action, thereby setting unrealistic expectations for agencies going forward.

On July 21, 2004, several states, the City of New York, and two nonprofit land trusts sued five electric power companies in federal district court. 10 The plaintiffs ...
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