1
BUL4310 Term Paper: Apple v. Pepper
June 28, 2020
Nila Parvathy
2
Introduction
Our world today is highly characterized by technology and its direct implications. While
this resource is revolutionary, it is also very new. When it comes to the court case Apple v.
Pepper, we are given the opportunity to gauge the realms in which technology exists and how it
should develop. Since phenomenons such as phone applications are characterized by their
novelty, it is essential that the law develops precedents surrounding such complexities. In this
day and age, the law lacks stability when it comes to understanding the digital world, as it is
growing at such a fast pace.
In the field of business law, the growth of smart technology poses a completely new set
of dilemmas that need a resolution. Some of these issues include, privacy, ownership, and
monopolization. By analyzing Apple v. Pepper, the role of monopolies in the digital world will
be specifically addressed. Currently there is still a lot of uncharted territory in terms of law when
it comes to technological platforms such as the app store. The current era of technological
emergence will serve to generate a need for more laws in relation to this growth. This specific
court case will stand as a precedent for many future matters.
Apple v. Pepper
The case of Apple v. Pepper specifically looks at whether the app store is monopolizing
the app market. With the creation of the Apple iPhone, the app store was established as a market
in which apps could be sold to consumers. While Apple has some of its own apps, the majority
are made by outsiders or third party developers. Many of these third party app makers did not
think it was fair for Apple to take 30% of the profits generated by all apps. Some consumers of
these apps also did not like the price hike associated with this rule. Due to this, multiple plaintiffs
3
decided to file a complaint against Apple. Specifically speaking, Apple was believed to be
creating a monopoly out of the app store in the eyes of the plaintiffs (Pepper). 1
A major development assessed in the case was whether app purchasers were indirect or
direct consumers of apple. Apple, as a company, pushed forth the idea that these consumers were
indirect simply because the app store is a distributor not a creator. 2 Apple also supported their
claim by referencing an older case, Illinois Brick co. v. Illinois. This court case does not allow
indirect customers to sue a corporation. The plaintiffs of the Apple v. Pepper case, on the other
hand, believe that since Apple generated a profit from the transaction, it is a direct relationship.
The holding issued agreed with the plaintiffs perspective. The final ruling held that consumers
have the right to sue Apple.3 It was made clear that one could only sue if they have evidence
proving that the high prices had a major impact on them. The supreme court ultimately ruled that
the Illinois Brick co. v. Illinois case could not be applied here because the format of the app store
was completely different than a conventional logistical network. 4 App consumers purchase apps
directly from the app store, so Apple should be held liable alongside the app developers.
Apple, even after the end of the case, strongly identifies that app consumers purchase
apps from a third party directly. Apple plays no part in the creation of most apps, they just push
forth a platform for which the apps can be sold and used. Moreover, they believe that it is unfair
1
Apple v. Pepper. (n.d). Oyez. Retrieved May 28, 2019, from https://www.oyez.org/cases/2018/17-204
2
Besada, B., & Idicula, I. (2018, November 20). Apple Inc. v. Pepper. Retrieved May 28, 2019, from
https://www.law.cornell.edu/supct/cert/17-204
3
Kifleswing. (2019, May 13). Apple failed to close off a big antitrust threat, but it probably won't feel the harm for
years. Retrieved June 30, 2019, from https://www.cnbc.com/2019/05/13/apple-v-pepper-supreme-courtloss-little-harm-now-long-term-threat.html
4
Li, E. (2019, February 04). Apple v. Pepper: Will Economic Realities or Contractual Formalities Prevail at the
Supreme Court? Retrieved May 28, 2019, from https://news.law.fordham.edu/jcfl/2019/02/04/apple-vpepper-will-economic-realities-or-contractual-formalities-prevail-at-the-supreme-court/
4
for them to be blamed for the both the prices of apps (by consumers) and the 30% charge (by
third party app makers).5 The plaintiffs, on the other hand, push forth the idea that Apple is
taking advantage of both app consumers and developers. They believe that Apple should stop its
role in price hiking apps in the app market. In a 5 to 4 ruling, the supreme court decided that
consumers could sue apple for monopolizing the app market because they are in fact direct
customers.6 This sets up a prominent precedent that can have a lasting impact on future
technological dilemmas.
Future Implications
As regarded by Stare decisis, a ruling made by the highest court must be followed as
precedent.7 This is a prevalent happening in common law nations. Since the recent growth of
smart technology has been rapid, there is still a need for new laws to help provide a guideline for
future endeavors. Certain smart technologies today exist along a frayed line of legality. For
instance, Facebook highlighted the topic of privacy recently when they were directly called out
for taking advantage of people’s information without true consent. With the growing use of
social media, privacy is something that the law must address. Cases like Apple v. Pepper serve to
remind us that the law must be constantly updated and changed to stay in tune with current
involvements.
When it comes to specific future implications in regards to Apple v. Pepper, it can be
seen even within Apple’s own platforms. In regards to the music streaming service of Apple
5
Besada, B., & Idicula, I. (2018, November 20). Apple Inc. v. Pepper. Retrieved May 28, 2019, from
https://www.law.cornell.edu/supct/cert/17-204
6
Savage, D. G., & Hussain, S. (2019, May 13). Supreme Court rules Apple can face antitrust suits from iPhone
owners over App Store sales. Retrieved June 30, 2019, from https://www.latimes.com/politics/la-na-polsupreme-court-apple-smart-phone-20190513-story.html
7
Emerson, R. W. (2015). Business law. Hauppauge, NY: Barrons.
5
music, some may argue that it creates a monopoly within the field. Spotify, a major streaming
service, has gone on to call out Apple for monopolizing the music streaming industry as a whole.
Spotify created a video addressing its complaints about Apple’s approach to restricting
competition. In the video, Spotify points out that Apple charges them a 30% tax. They claim that
Apple purposefully does this to keep Spotify from charging lower prices than them. 8 In the
video, it is specifically noted that Apple, “sets itself up as a referee and player in the world of
audio streaming.”9 This creates an inequitable playing field in the music streaming industry.
With the recent ruling of Apple v. Pepper, companies like Spotify can be pushed to consider
legal action against Apple. This case creates a narrative wherein which Apple can in fact be
limited from its power hungry tendencies. Spotify and other competitors can find this precedent
useful when standing up against this major tech giant.
As seen in Spotify’s message, Apple’s role as a technological superpower needs to be
limited. The law needs to take into consideration the effects of monopolization when it comes to
smart technology. Apple v. Pepper serves as the first major ruling in regards to prohibiting the
monopolization of technological markets. Since it found Apple at fault, it can push major
companies to become more cautious in their growth efforts. Alongside the introduction of new
platforms and inventions exists the need for regulatory laws.
Personal Analysis
When it comes to my personal take on Apple v. Pepper, I do believe that Apple was
taking advantage of the situation at hand. It is unfair for Apple to consider themselves not liable
8
Five Fast Facts about Apple’s anti-competitive behavior. (n.d.). Retrieved June 29, 2019, from
https://timetoplayfair.com/
9
Spotify. (2019, March 13). Time to Play Fair. Retrieved July 1, 2019, from
https://www.youtube.com/watch?v=l8SShgWqJvg
6
for the claims of customers simply because they believe the relationship is an indirect one. Even
though I am an avid Apple consumer myself, I would agree that the precedent of Illinois brick
co. v Illinois does not apply to the case. Since Apple takes 30% of the profits generated by all
apps, it is evident that they are attempting to have a complete sense of control. 10 The outcome of
this case prevails mainly in the sense that it serves as a precedent for future cases to come.
In the future, I can see Apple being held liable in similar terms when it comes to its other
platforms, such as Apple music. If Apple keeps using the market it created to control a
competition it partakes in, a major lawsuit is probable. The music streaming giant Spotify can
use the case of Apple v. Pepper as a reference to sue Apple for monopolizing the audio streaming
industry. With accurate evidence to prove Apple’s intention of limiting competition through the
means of their iPhone devices, Spotify can win a legal battle against this corporate giant. As
someone who has used both streaming platforms, I can say that in terms of personal aesthetics I
prefer Spotify. That being said, if Spotify was pushed to charge more than Apple music I would
switch back over in a heartbeat. Pricing in this industry has the capability to alter consumer
actions a great deal. If Apple is able to control Spotify’s pricing, it can easily eradicate its
competition. Court cases like Apple v. Pepper can be the first step to prohibit companies like
Apple from overstepping boundaries.
Perhaps the most important outcome of Apple v. Pepper is the clear emphasis on a need
for legal guidelines for smart technology. With a major rise in technological platforms comes the
need for laws that ensure safety, fairness, and opportunity. I genuinely believe that the field of
business law must evolve to better grasp the innovation of the modern era. Monopolization of
technology companies is a major issue that has barely been addressed on the national scale.
10
Apple v. Pepper. (n.d). Oyez. Retrieved May 28, 2019, from https://www.oyez.org/cases/2018/17-204
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Rules and regulations must be enforced to prohibit major corporations from reigning over entire
markets.
As seen with the social media giant , Facebook, a monopoly on social networking truly
exists. For instance, Facebook saw that WhatsApp and Instagram were growing, so they took it
upon themselves to purchase both these companies as a means to eradicate competition. 11 Instead
of finding a way to regulate Facebook’s endeavors, the government looked past these
occurrences. While Apple v. Pepper deals with a more specific and provable version of
monopolization, I believe that this case can push more people to keep up with and question the
practices of tech giants. Perhaps eventually, laws will be created to further ease the monopolistic
climate that exists.
Conclusion
Apple v. Pepper is a revolutionary case that highlights the monopolistic tendencies
associated with the introductions of new technologies. Specifically speaking, Apple was called
out for having too much power over the happenings of its app store. Whilst charging third parties
to include their apps in the store, Apple still argued that consumers of said apps were considered
indirect consumers. This put forth an aura indicating a lack of liability. Even though the supreme
court ruled that people did have the right to sue Apple for their monopolistic app market, this did
not stop Apple from still considering their customers as being indirect. Even so, Apple, as per the
case, must treat app buyers as direct purchasers even though they do not see them in that light.
While the case is complete, the effects of the case are still ongoing. Since the supreme
court established that consumers have the right to sue Apple, many lawsuits must be on the way.
11
Solman, P. (2019, January 17). Why tech industry monopolies could be a 'curse' for society. Retrieved July 1,
2019, from https://www.pbs.org/newshour/show/why-tech-industry-monopolies-could-be-a-curse-forsociety
8
Because Apple is a major company though, it has the money to get consumers to settle instead of
move forward with suits. The outcome of lawsuits can change the scope of technological
advancements around the world. Perhaps, these suits can call for the creation of more precedents
regarding this new era of innovation. With both tech giants and social media companies we see a
major deterioration of competition quickly. If the law allows companies to have such a major
sense of control over its competitors, there would be a major power problem present within the
industry in itself.
Future implications of this case can transform the way that smart technology is assessed
in the United States. Perhaps, other Apple platforms such as Apple music will be challenged in
accordance with their monopolistic intentions. Furthermore, with the constant emergence of new
innovations coincides a need for regulations to protect the fundamental rights of both people and
businesses. As the effects of the holding set in, Apple will likely have to deal with a multitude of
lawsuits which can push them to enact fairer policies. There is clearly a need for more laws to
oversee this generation of high-tech innovation. Apple v. Pepper is one of the first major cases to
address power dynamic methodology in relation to newly introduced smart platforms. Cases like
this shine a light on future conflicts of such magnitude and prioritizes finding resolutions. As the
world grows fast, the legal environment needs to make it a point to keep up with revolutionary
changes.
9
Works cited
Apple v. Pepper. (n.d). Oyez. Retrieved May 28, 2019, from https://www.oyez.org/cases/2018/17-204
Besada, B., & Idicula, I. (2018, November 20). Apple Inc. v. Pepper. Retrieved May 28, 2019, from
https://www.law.cornell.edu/supct/cert/17-204
Emerson, R. W. (2015). Business law. Hauppauge, NY: Barrons.
Five Fast Facts about Apple’s anti-competitive behavior. (n.d.). Retrieved June 29, 2019, from
https://timetoplayfair.com/
Kifleswing. (2019, May 13). Apple failed to close off a big antitrust threat, but it probably won't feel the harm for
years. Retrieved June 30, 2019, from https://www.cnbc.com/2019/05/13/apple-v-pepper-supreme-courtloss-little-harm-now-long-term-threat.html
Li, E. (2019, February 04). Apple v. Pepper: Will Economic Realities or Contractual Formalities Prevail at the
Supreme Court? Retrieved May 28, 2019, from https://news.law.fordham.edu/jcfl/2019/02/04/apple-vpepper-will-economic-realities-or-contractual-formalities-prevail-at-the-supreme-court/
Savage, D. G., & Hussain, S. (2019, May 13). Supreme Court rules Apple can face antitrust suits from iPhone
owners over App Store sales. Retrieved June 30, 2019, from https://www.latimes.com/politics/la-na-polsupreme-court-apple-smart-phone-20190513-story.html
Solman, P. (2019, January 17). Why tech industry monopolies could be a 'curse' for society. Retrieved July 1, 2019,
from https://www.pbs.org/newshour/show/why-tech-industry-monopolies-could-be-a-curse-for-society
Spotify. (2019, March 13). Time to Play Fair. Retrieved July 1, 2019, from
https://www.youtube.com/watch?v=l8SShgWqJvg
Gennaro Annunziata
Professor Emerson
BUL4310
9/10/2021
Tomasella v. Nestle USA, Inc
The business law case I am going to examine for my term outline paper is called Tomasella v.
Nestle USA, Inc. This case was heard in the state of Massachusetts. This case has to do with
advertising law and is a debating whether Nestle, one of the largest chocolate companies in the
world mislead it consumers into believing their product was made without the help of child
labor. In February of 2018, Danell Tomasella brought consumer class actions against the
company for failing to disclose on their candy wrapping that child and slave labor in west Africa
was used to produce the chocolate. Although Nestle did not include this information on the
candy wrappers themselves the company did discuss the topic through other outlets such as their
website where they said the company policy prohibited child labor. Despite the company’s
commitments against child labor resources, they still publicly acknowledged their labor abuses
and further launched corporate remedial initializes to put an end to the practice. “Tomasella
alleged that the manufacturers’ failure to disclose their labor abuses on chocolate wrappers
violated the Massachusetts Consumer Protection Act, Chapter 93A” (Harvard law review).
Tomasella claimed that the misinformation led to consumers purchasing a product they would
not have if they had known the truth and it made consumers unknowingly support child and slave
labor. The main problem for Tomasella was that she just went after Nestle for not including this
information on the candy wrapper itself. The court sided with the defendant Nestle and said that
“Although the labor abuses were “widespread, reprehensible, and tragic,” the manufacturers’
omissions on candy wrappers were neither deceptive nor unfair under the Massachusetts statute”.
Nestle never advertised anything about the labor that went into making their chocolate, therefore
there was no false or misleading advertising. This is a very interesting case that is complex in
many ways. Although it is terrible that this company would use child and slave labor what the
Tomasella had alleged in this case did not have enough substantial information to find Nestle
guilty of false adverting or misleading consumers. Maybe if Nestle was tried in court for how
they produce their chocolate specifically and not how they advertise it maybe the outcome would
have been different. This case of a great example of how consumers are protected from
companies misleading them and how companies can protect themselves in court from claims of
false advertising that don’t have solid evidence. I look forward to studying this case in further
detail and examining every aspect to get a better understanding of the laws that protect
consumers.
Sources:
https://harvardlawreview.org/2021/04/tomasella-v-nestle-usa-inc/
https://news.bloomberglaw.com/product-liability-and-toxics-law/hershey-nestle-mars-beatappeals-in-child-labor-label-suits
https://www.confectionerynews.com/Article/2018/02/28/Cocoa-child-labor-lawsuits-againstMars-and-Hershey-filed#
Analysis of
American Electric Power Company v. Connecticut, 564 U.S. 410 (2011)
Natalie Hollander
BUL4310
July 2, 2019
Word count: 2,691
Natalie Hollander
BUL 4310 Term Paper
July 2, 2019
Introduction
Global warming is a well-known concept that has gained popularity ever since the
industrial revolution due to human-induced climate change. It is a relatively well-known fact that
greenhouse gas emissions result in the expedite of the global warming process due to these gases
trapping heat within our atmosphere. One of the major greenhouse gases is carbon dioxide.
American Electric Power Company v. Connecticut was an important case that went to the
Supreme Court that assisted in clarifying if the public could successfully sue private companies
who emit greenhouse gases, specifically carbon dioxide, on the grounds of public nuisance. This
paper will focus on the history of this case, in addition to an analysis of various viewpoints on
the final ruling that was given by the Supreme Court.
American Electric Power Company v. Connecticut, 564 U.S. 410 (2011)
I.
History of the Case
The initial complaint of American Electric Power Company v. Connecticut, 564 U.S. 410
(2011) was brought to the Southern District of New York on July 21, 2004. 1 The State of
Connecticut, New York, People of the State of California, Iowa, New Jersey, Rhode Island,
Vermont, Wisconsin, and the City of New York were the “State Plaintiffs” while the Open Space
Institute, Inc., the Open Space Conservancy, Inc., and the Audubon Society of New Hampshire
were the “Private Plaintiffs” who brought action against American Electric Power Company,
Inc., American Electric Power Service Corporation, The Southern Company, Tennessee Valley
Authority, XCEL Energy Inc., and Cinergy Corporation on the grounds of public nuisance
through these five major electric power companies contributing to greenhouse gas emissions,
specifically emitting large quantities of carbon dioxide. The “State Plaintiffs” claimed to
represent the interest of over 77 million people and their related environments, natural resources,
and economies, while the “Private Plaintiffs” claimed to represent the interest of non-profit land
trusts.2
During the time this lawsuit was brought about, the five electric power companies that
composed of the Defendants were the five largest emitters of carbon dioxide in the United States
and were considered some of the largest emitters worldwide. 3 Carbon dioxide is considered one
of the primary greenhouse gases. Greenhouse gases trap atmospheric heat, which further
contributes to the overall rising global temperature. According to court documents, the five
1
Connecticut v. American Electric Power Co. - Complaint. The United States District Court for the
Southern District of New York, 21 July 2004, blogs2.law.columbia.edu/climate-change-litigation/wpcontent/uploads/sites/16/case-documents/2004/20040721_docket-04-Civ.-5669-04-Civ.5670_complaint.pdf.
2
Connecticut v. American Electric Power Co. - Opinion and Order. The United States District Court for
the Southern District of New York, 19 Sept. 2005, blogs2.law.columbia.edu/climate-changelitigation/wp-content/uploads/sites/16/case-documents/2005/20050919_docket-04-Civ.-5669-04-Civ.5670_opinion-and-order-1.pdf.
3
Connecticut v. American Electric Power Co. - Complaint. The United States District Court for the
Southern District of New York, 21 July 2004, blogs2.law.columbia.edu/climate-change-litigation/wpcontent/uploads/sites/16/case-documents/2004/20040721_docket-04-Civ.-5669-04-Civ.5670_complaint.pdf.
Natalie Hollander
BUL 4310 Term Paper
July 2, 2019
Defendants were estimated of producing 650 million tons of carbon dioxide combined annually. 4
This amount was around one-quarter of the overall United States total electric power sectors
carbon dioxide emissions, in addition to about ten percent of all carbon dioxide emissions in the
United States resulting from human activities.5 The public nuisances that were claimed by the
Plaintiffs that result from high carbon dioxide emissions were as follows: “increased heat deaths
due to intensified and prolonged heat waves; increased ground-level smog with concomitant
increases in respiratory problems like asthma; beach erosion, inundation of coastal land, and
salinization of water supplies from accelerated sea level rise; reduction of the mountain snow
pack in California that provides a critical source of water for the State; lowered Great Lakes
water levels, which impairs commercial shipping, recreational harbors and marinas, and
hydropower generation; more droughts and floods, resulting in property damage and hazard to
human safety; and widespread loss of species and biodiversity, including the disappearance of
hardwood forests from the northern United States.”6 The available methods to reduce these
companies’ carbon footprints were claimed to all be “practical, feasible and economically
viable” in the Plaintiffs opinion, such as “changing fuels, improving efficiency, increasing
generation from zero-or low-carbon energy sources such as wind, solar, and gasified coal with
emissions capture, co-firing wood or other biomass in coal plants, employing demand-side
management techniques, altering the dispatch order of their plants, and other measures.” 7
II.
Parties Arguments
The Plaintiffs were seeking judicial relief under the federal common law of public
nuisance or under the state law of public nuisance. The Plaintiffs sought to hold each of the
Defendants jointly and severally liable for contributing to the ongoing public nuisance of global
warming and enjoining each of the Defendants to lessen their contribution to the global warming
by limiting their carbon dioxide emissions, with continual reductions of those emissions by a
specified percentage each year for at least a decade.8 All of the Plaintiffs for each of the states
brought about the cause of action to protect state property and as parens patriae on behalf of its
citizens and residents to protect their health and well-being, in addition to protecting natural
resources held in trust by the State.9 Parens patriae is Latin for “parent of his or her country”,
and it is the power of the state to act as guardians for those who are unable to care for
themselves.10 The Plaintiffs wanted the unspecified reductions of carbon dioxide emission from
these five companies as they believed it would have led to a reduction in the risk and threat of
4
Connecticut v. American Electric Power Co. - Complaint. The United States District Court for the
Southern District of New York, 21 July 2004, blogs2.law.columbia.edu/climate-change-litigation/wpcontent/uploads/sites/16/case-documents/2004/20040721_docket-04-Civ.-5669-04-Civ.5670_complaint.pdf.
5
See above.
6
Connecticut v. American Electric Power Co. - Complaint. The United States District Court for the
Southern District of New York, 21 July 2004, blogs2.law.columbia.edu/climate-change-litigation/wpcontent/uploads/sites/16/case-documents/2004/20040721_docket-04-Civ.-5669-04-Civ.5670_complaint.pdf.
7
See above.
8
See above.
9
See above.
10
“Parens Patriae.” Legal Information Institute, Cornell Law School, 10 June 2015,
www.law.cornell.edu/wex/parens_patriae.
Natalie Hollander
BUL 4310 Term Paper
July 2, 2019
injury to the Plaintiffs and their citizens and residents from the negative effects of global
warming.11
The Defendants argued multiple flaws in the Plaintiff’s complaints against them. First,
the Defendants pointed out that the Plaintiffs failed to state a claim where relief can be granted,
as there was no federal common law cause of action at the time this case was open to abate
greenhouse gas emissions that contribute to global warming. 12 Therefore, the separation of
powers principles shouldn’t allow the Southern District of New York Court to judge these
actions.13 In addition, “the Defendants argued that the Southern District of New York Court lacks
jurisdiction over the Plaintiffs claims because the Plaintiffs do not have standing to sue on
account of global warming.”14 They argued that “the court must exercise their jurisdiction
appropriately and refrain from resolving questions of high policy, which hare for the political
branches.”15 The Defendants argued that with the Plaintiff asking this court to cap carbon
dioxide emissions and to mandate annual reductions of an as-yet-unspecified percentage would
require too much from the courts.16 The relief that the Plaintiffs were seeking would “require this
court to: (1) determine the appropriate level at which to cap the carbon dioxide emissions of
these Defendants; (2) determine the appropriate percentage reduction to impose upon
Defendants; (3) create a schedule to implement those reductions; (4) determine and balance the
implications of such relief on the United States ongoing negotiations with other nations
concerning global climate change; (5) assess and measure available alternative energy resources;
and (6) determine and balance the implications of such relief on the United States energy
sufficiency and this its national security--all without an ‘initial policy determination’ having been
made by the elected branches.”17
III.
Court Decisions
The Southern District of New York came to their decision on September 15, 2005. 18 The court
believed that the complaints rose non-justiciable political questions that were beyond the limits
of their court’s jurisdiction due to the separation-of-powers principles. 19 This can also be
classified as the Political Question Doctrine. The Political Question Doctrine is, “the idea that an
issue is so politically charged that federal courts, which are typically viewed as the apolitical
11
Connecticut v. American Electric Power Co. - Opinion and Order. The United States District Court for
the Southern District of New York, 19 Sept. 2005, blogs2.law.columbia.edu/climate-changelitigation/wp-content/uploads/sites/16/case-documents/2005/20050919_docket-04-Civ.-5669-04-Civ.5670_opinion-and-order-1.pdf.
12
Connecticut v. American Electric Power Co. - Opinion and Order. The United States District Court for
the Southern District of New York, 19 Sept. 2005, blogs2.law.columbia.edu/climate-changelitigation/wp-content/uploads/sites/16/case-documents/2005/20050919_docket-04-Civ.-5669-04-Civ.5670_opinion-and-order-1.pdf.
13
See above.
14
See above.
15
See above.
16
See above.
17
See above.
18
See above.
19
See above.
Natalie Hollander
BUL 4310 Term Paper
July 2, 2019
branch of government, should not hear the issue.” 20 The court documents also state that the
Defendants moved to dismiss the complaints due to “inter alia”, which is the lack of jurisdiction
and failure to state a claim upon which relief can be granted, and these motions were granted. 21
Congress has recognized that carbon dioxide emissions cause global warming and that global
warming will have severe adverse impacts in the United States, however, at the time of this
ruling, Congress declined to impose any formal limits on such emissions.22 For these reasons, the
complaint was dismissed, the actions were marked as closed, and all pending motions were
denied.23
The United States Court of Appeals for the Second Circuit reversed the Southern District
of New York Courts decision on September 21, 2009. 24 They held that the “(1) PlaintiffsAppellants’ claims do not present non-justiciable political questions; (2) Plaintiffs-Appellants
have standing to bring their claims; (3) Plaintiffs-Appellants state claims under the federal
common law of nuisance; (4) Plaintiffs-Appellants’ claims are not displaced; and 5) the
discretionary function exception does not provide Defendant-Appellee Tennessee Valley
Authority immunity from suit.”25 The United States Court of Appeals for the Second Circuit
vacated the judgment of the Southern District of New York Court and remanded for further
proceedings.26 They found that federal statutes did not displace the Plaintiffs’ nuisance claim
under federal common law and that the complaints against the Defendants may not be dismissed
on the grounds of the political question doctrine. 27 While the judgement of the district court was
vacated and the cases were remanded for further proceeding, on March 5, 2010, the Secord
District Court denied a motion for rehearing en banc concerning their September 2009
decision.28
This ruling resulted in the Defendants filing for a petition for certiorari with the United
States Supreme Court to review the Second Circuits September 2009 ruling on August 2, 2010. 29
On December 6, 2010, the certiorari was granted by the United States Supreme Court and on
June 20, 2011, the opinion was issued by the Supreme Court. 30 The Court dismissed the lawsuit
20
Hashmall, Joe. “Political Question Doctrine.” Legal Information Institute, Cornell Law School, 4 July
2017, www.law.cornell.edu/wex/political_question_doctrine.
21
Connecticut v. American Electric Power Co. - Opinion and Order. The United States District Court for
the Southern District of New York, 19 Sept. 2005, blogs2.law.columbia.edu/climate-changelitigation/wp-content/uploads/sites/16/case-documents/2005/20050919_docket-04-Civ.-5669-04-Civ.5670_opinion-and-order-1.pdf.
22
Connecticut v. American Electric Power Co. - Opinion and Order. The United States District Court for
the Southern District of New York, 19 Sept. 2005, blogs2.law.columbia.edu/climate-changelitigation/wp-content/uploads/sites/16/case-documents/2005/20050919_docket-04-Civ.-5669-04-Civ.5670_opinion-and-order-1.pdf.
23
See above.
24
Connecticut v. American Electric Power Co. - Opinion. The United States Court of Appeals for the
Second Circuit, 21 Sept. 2009, blogs2.law.columbia.edu/climate-change-litigation/wpcontent/uploads/sites/16/case-documents/2009/20090921_docket-05-5104-cv-05-5119-cv_opinion.pdf.
25
See above.
26
See above.
27
See above.
28
“American Electric Power Co. v. Connecticut.” Climate Case Chart, Sabin Center for Climate Change
Law, climatecasechart.com/case/american-electric-power-co-v-connecticut/?cn-reloaded=1.
29
See above.
30
See above.
Natalie Hollander
BUL 4310 Term Paper
July 2, 2019
on the grounds of federal common law that applies to this case, which was Massachusetts v.
EPA, 549 U. S. 497, which held that “the Clean Air Act authorizes federal regulation of
emissions of carbon dioxide and other greenhouse gases.” 31 The Supreme Court established that
Congress had entrusted the Environmental Protection Agency to decide how greenhouse gases
should be regulated and that it was not up to the federal courts to issue their own rules. 32
Opinion and Impact of Case
This case has had multiple impacts and has been cited in multiple court cases since its
final decision. Some cases where American Electric Power Company v. Connecticut have had
influence in the courts’ decision include Amigos Bravos v. US Bureau of Land Management, 816
F. Supp. 2d 1118 (D.N.M. 2011), Michigan v. US Army Corps of Engineers, 667 F.3d 765 (7th
Cir. 2011), Robert Masterson, Mark Brown, George Butler, Charles Westbrook, Richey Oliver,
Craig Porter, Sharon Weber, June Smith, Rita Baker, Stephanie Peddy, Billie Ruth Hodges,
Dallas Christian, and the Episcopal Church of the Good Shepherd v. the Diocese of Northwest
Texas, the Rev. Celia Ellery, Don Griffis, and Michael Ryan, 11-0332 (Tex. 2013), and Mark
Parsons v. DOJ, 14-1848 (6th Cir. 2015).33 It has had a great impact on being used as precedent
and guidance for federal common law of public nuisance and related pollution cases.
The Wall Street Journal provided their opinion on American Electric Power Company v.
Connecticut in an article that was written after the Second Circuits Court of Appeals issued their
decision but before the Supreme Court’s decision. They stated that consequences could be severe
for private utility companies if judges can order emissions caps. 34 If the Supreme Court ruled in
favor of the Plaintiffs, that could have resulted in the possibility of transforming, “the way the
United States produces and obtains energy, limits its supply, dramatically raise its cost and
jeopardize reliable service to the public.” 35 In the same article, the Obama administration offered
their opinion and stated, “the executive and legislative branches of government should handle
carbon-dioxide regulation, not the courts.” 36 Beginning January 2, 2011, the Environmental
Protection Agency began to “force power plants, oil refineries and other major emitters of
greenhouse gases to obtain permits when making major modifications to their facilities or
building new ones.”37
As an environmental science major, I found this case particularly interesting. While I
tend to favor environmental advocate groups over large corporations, I do agree with the
Supreme Court’s decision on this case and the opinions stated above. In my opinion, I do not
believe that the Plaintiffs had standing to be suing on grounds of public nuisance on behalf of
31
“American Elec. Power Co. v. Connecticut.” Legal Information Institute, Cornell University Law
School, 20 June 2011, www.law.cornell.edu/supct/html/10-174.ZS.html.
32
“American Electric Power Co. v. Connecticut.” Climate Case Chart, Sabin Center for Climate Change
Law, climatecasechart.com/case/american-electric-power-co-v-connecticut/?cn-reloaded=1.
33
“American Elec. Power Co. v. Connecticut, 564 U.S. 410, 131 S. Ct. 2527, 180 L. Ed. 2d 435, 2011
U.S. LEXIS 4565.” Court Listener, www.courtlistener.com/opinion/219098/american-elec-power-co-vconnecticut/.
34
Kendall, Brent, and Tennille Tracy. “Supreme Court Set to Review CO2 Suits.” The Wall Street
Journal, Dow Jones & Company Inc., 7 Dec. 2010,
www.wsj.com/articles/SB10001424052748704156304576003323338816658.
35
See above.
36
See above.
37
See above.
Natalie Hollander
BUL 4310 Term Paper
July 2, 2019
their land, citizens and, residents. I believe that this case exemplifies a slippery slope argument. 38
If the Supreme Court ruled in favor of the Plaintiffs argument, it could lead to an increased
number of suits with no real standing over various major companies emitting airborne pollutants
and greenhouse gases, as anybody could be able to file suit on the matter and all lower courts
would have to abide by the Supreme Court’s ruling due to the doctrine of stare decisis, which is
the common law doctrine that courts of lower jurisdictions follow the precedents of courts above
them.39 I believe that while emitting mass amounts of greenhouse gases and expediting global
warming should be avoided as much as possible, it is also important to take into consideration
the environmental-economic tradeoffs of the private companies, as all five of these private
companies’ played a big role in the electricity sector of the United States economy. The Plaintiffs
could’ve potentially made more progress going to the Environmental Protection Agency to
persuade them to stricken their standards on greenhouse gas emissions, as under the Clean Air
Act they set the regulations for greenhouse gas emissions.
Conclusion
American Electric Power Company v. Connecticut established a precedent that lower
courts throughout the United States can refer to when a suit is brought about involving private
companies, greenhouse gas emissions, and a public nuisance claim. The final ruling by the
Supreme Court on this matter solidified that the power of regulation in regards to greenhouse gas
emission, specifically carbon dioxide, lies within the legislative branch, not the judicial branch.
This allows for a more equal balance of powers between the branches of government, as the
Environmental Protection Agency can regulate the greenhouse gas emissions from private
companies through the Clean Air Act.
38
39
Emerson, Robert W. Law, Society, and Business. 2018. p. 38
Emerson, Robert W. Law, Society, and Business. 2018. p. 15
Natalie Hollander
BUL 4310 Term Paper
July 2, 2019
Works Cited
“American Elec. Power Co. v. Connecticut, 564 U.S. 410, 131 S. Ct. 2527, 180 L. Ed. 2d 435,
2011 U.S. LEXIS 4565.” Court Listener,
www.courtlistener.com/opinion/219098/american-elec-power-co-v-connecticut/.
“American Elec. Power Co. v. Connecticut.” Legal Information Institute, Cornell University Law
School, 20 June 2011, www.law.cornell.edu/supct/html/10-174.ZS.html.
“American Electric Power Co. v. Connecticut.” Climate Case Chart, Sabin Center for Climate
Change Law, climatecasechart.com/case/american-electric-power-co-v-connecticut/?cnreloaded=1.
Connecticut v. American Electric Power Co. - Complaint. The United States District Court for
the Southern District of New York, 21 July 2004, blogs2.law.columbia.edu/climatechange-litigation/wp-content/uploads/sites/16/case-documents/2004/20040721_docket04-Civ.-5669-04-Civ.-5670_complaint.pdf.
Connecticut v. American Electric Power Co. - Opinion. The United States Court of Appeals for
the Second Circuit, 21 Sept. 2009, blogs2.law.columbia.edu/climate-changelitigation/wp-content/uploads/sites/16/case-documents/2009/20090921_docket-05-5104cv-05-5119-cv_opinion.pdf.
Connecticut v. American Electric Power Co. - Opinion and Order. The United States District
Court for the Southern District of New York, 19 Sept. 2005,
blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/casedocuments/2005/20050919_docket-04-Civ.-5669-04-Civ.-5670_opinion-and-order-1.pdf.
Emerson, Robert W. Law, Society, and Business. 2018.
Hashmall, Joe. “Political Question Doctrine.” Legal Information Institute, Cornell Law School, 4
July 2017, www.law.cornell.edu/wex/political_question_doctrine.
Kendall, Brent, and Tennille Tracy. “Supreme Court Set to Review CO2 Suits.” The Wall Street
Journal, Dow Jones & Company Inc., 7 Dec. 2010,
www.wsj.com/articles/SB10001424052748704156304576003323338816658.
“Parens Patriae.” Legal Information Institute, Cornell Law School, 10 June 2015,
www.law.cornell.edu/wex/parens_patriae.
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