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In American Electric Power v. Connecticut (AEP), the U.S. Supreme Court by an equally divided vote of four to four affirmed the Second Circuit’s decision finding standing and jurisdiction in the case. Even though it did not announce the identities of the justices who voted for standing and against standing, the AEP decision took the unusual step of providing some explanation for how the Court divided on the standing question, and, as a result, provided important information about the positions of the justices on the issue. While it is not binding as a decision for the lower courts except for the Second Circuit, the AEP decision’s four to four affirmance of the Second Circuit’s standing decision provides important clues to how the Court is likely to rule in future standing cases. This Article will discuss the likely identity of the justices on each side of the standing issue in AEP. Furthermore, the Article will speculate regarding how Justice Sotomayor might have voted in the case if she had not recused herself. Implicitly, the AEP decision reaffirmed and even expanded its standing analysis in Massachusetts v. EPA, which recognized that states have special standing rights when they sue as parens patriae to protect their state’s natural resources or the health of their citizens. The AEP arguably adopted an even broader standing analysis than Massachusetts by eliminating the requirement of a statutory procedural right as a basis for standing. State standing is important because state attorney generals are involved in many different kinds of suits in federal courts. In particular, state suits are likely to be significant in future climate change cases if states file state common law nuisance claims or challenges to EPA regulations relating to carbon dioxide.


Published at 46 U. Rich. L. Rev. 543 (2012).