Supreme Court Roundup: No Federal Nuisance for Climate Change, and Saher and Saleh Will Stand

Home / Blog / Supreme Court Roundup: No Federal Nuisance for Climate Change, and Saher and Saleh Will Stand

In the past week, the Supreme Court has issued several orders in cases of interest to ERI.  Last Monday, the Court decided American Electric Power v. Connecticut, in which several states sued power companies on a theory of public nuisance under federal law.  Its decision is a loss for the plaintiffs, but one that does not prohibit further climate change litigation.

A longer analysis can be found at the Climate Law Blog; in brief, the court decided that, because the EPA had authority to regulate greenhouse gases, this authority preempted any federal claim for public nuisance.  But the court rejected the idea that the plaintiffs did not have standing to bring the case, or that the case presented a “political question” that could not be litigated.  So further cases that do not involve federal common law claims–including the Connecticut case itself, which also presents state-law nuisance claims–might still proceed.

Today, the Court decided not to hear two significant transnational cases.  In von Saher v. Norton Simon Museum, the Ninth Circuit Court of Appeals struck down a California statute allowing owners of art looted during the Holocaust to file claims in California, reasoning that it interfered with exclusive federal foreign policy powers.  (ERI filed an amicus brief asking the Ninth Circuit to rehear the case.)  In Saleh v. Titan, the D.C. Circuit ruled that a U.S. contractor could not be sued over abuses arising out of the Iraq war, based on a previously unknown “battlefield preemption” doctrine.

A decision not to take a case usually doesn’t signify much about the Supreme Court’s views on the issues in the case–the justices often wait for additional appellate decisions to clarify the issues.  Notably, in both cases the US government had recommended against the Supreme Court hearing them; in Saher, the government suggested that the case could be heard later because other claims in the case were not dismissed.  So the issues in these cases may yet come back to the Court another day.

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Protesting the Belo Monte dam, photo courtesy of Amazon Watch