The Yale Law Journal’s new “Summary Judgment” online series features a set of essays on the Supreme Court’s decision in American Electric Power v. Connecticut, in which the Court held unanimously that suits against utilities alleging their emissions of greenhouse gases contribute to the “public nuisance” of global warming under federal common law were displaced by the Clean Air Act. Contributors to the online symposium include Hari Osofsky, Daniel Farber, James May, Maxine Burkett, Michael Gerrard, and yours truly. My contribution, “A Tale of Two Cases” (PDF), discusses how the outcome in AEP was predetermined by the Court’s prior holding in Massachusetts v. EPA that greenhouse gases were pollutants subject to regulation under the Clean Air Act. The essay is based on a longer article forthcoming in the Cato Supreme Court Review that I will discuss at the Cato Constitution Day event on Thursday.
Originally posted at The Volokh Conspiracy.A Tale of Two Cases
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PERC Reports Magazine, Summer 2026
A special issue exploring American conservation history as the nation turns 250.
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Thomas Jefferson: The Lost Founding Father of American Conservation
Two years before he authored the Declaration of Independence, Thomas Jefferson set out on the lifelong project of conserving Virginia’s Natural Bridge. Michaelle Browers has described the effort as “perhaps the first major act of nature preservation in the new republic.” The man who would be Governor of Virginia and President of the United StatesContinue reading "A Tale of Two Cases"
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How the Eagle Came Back
As we celebrate the nation’s 250th anniversary, it is heartening that America’s national symbol, the bald eagle, is no longer imperiled. Although once at risk of extinction throughout much of its historical range, this majestic species rebounded in the late 20th century, and populations are now in good health. At the time of the nation’sContinue reading "A Tale of Two Cases"