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A standing article of Professor Bradford Mank, the James B. Helmer, Jr. Professor of Law, was cited in the Second Circuit's September 21st decision in Connecticut v. American Electric Power (AEP), which held states had standing to bring public nuisance suits against public utility companies that rely on coal-burning power plants including AEP and Cinergy (now Duke Energy).
Professor Mank's article had interpreted the Supreme Court's decision in Massachusetts v. EPA, 549 U.S. 497 (2007), to allow broad standing for states in cases involving climate change. [See Bradford Mank, Should States Have Greater Standing Rights Than Ordinary Citizens?: Massachusetts v. EPA’s New Standing Test for States, 49 Wm. & Mary L. Rev. 1701 (2008) (proposing that courts relax the immediacy and redressability prongs of the standing test when states bring parens patriae suits to protect their quasi-sovereign interests in the health, welfare, and natural resources of their citizens) ]. The original three-judge panel that heard oral arguments in the case included now Supreme Court Justice Sonia Sotomayor, but the decision was issued by the remaining two judges: Judges Joseph McLaughlin and Peter Hall, appointed by President George H.W. Bush and President George W. Bush, respectively. They issued a 139-page opinion that essentially allows the plaintiffs to return their lawsuit against the power companies to a federal district court that had earlier dismissed the case based on the political question doctrine.
The decision also stated that Congress could preempt public nuisance suits if it adopted legislation addressing climate change. Thus, the decision may encourage Congress to adopt such legislation to avoid having courts decide how much carbon utilities are allowed to emit.