COURTS States Can Sue Utilities Over Emissions; September 22, 2009, NY Times

[RI Interfaith Power and Light]

>
> ====================
>
> September 22, 2009, NY Times
>
> States Can Sue Utilities Over Emissions
>
> By MATTHEW L. WALD
> A two-judge panel of a federal appeals court has ruled that big power
> companies can be sued by states and land trusts for emitting carbon
dioxide.
> The decision, issued Monday, overturns a 2005 District Court decision that
> the question was political, not judicial.
>
> A panel of the United States Court of Appeals for the Second Circuit, in
New
> York, ruled that eight states - California, Connecticut, Iowa, New Jersey,
> New York, Rhode Island, Vermont and Wisconsin - as well as New York City
and
> three land trusts could proceed with a suit against American Electric
Power,
> Southern Corporation, the Tennessee Valley Authority, Xcel Energy and
Cinergy
> Corporation, all large coal-burning utilities.
>
> The case, brought in 2004, said the defendants were creating a "public
> nuisance" and sought reductions in emissions that scientists say are
changing
> the climate. The states cited studies from the United Nations and the
> National Academy of Sciences that predicted damage and said in fact that
> their environments had already been damaged. The land trusts said that an
> increase in sea level would inundate their properties, among other
problems.
>
> The power companies said that the federal courts had never recognized an
> argument in common law that greenhouse gas emissions contribute to global
> warming, and that if action were to be taken, Congress would have to do
it.
>
> The lower court agreed that the issues demonstrated the "transcendently
> legislative nature of this litigation," and that if they found in favor of
> the states and the land trusts, the courts would have to figure out how to
> cap emissions, set reduction goals and a schedule for achieving them, and
> take other steps that would seem to require legislation.
>
> The appeal was heard by a three-judge panel, but one of the judges, Sonia
> Sotomayor, was elevated to the Supreme Court in August. The case was
decided
> by Joseph M. McLaughlin, who was appointed to the court in 1990 by the
first
> President George Bush, and Peter W. Hall, nominated in 2003 by the second
> President Bush.
>
> Matt Pawa, the lead lawyer for the Open Space Institute and the Audubon
> Society of New Hampshire, both plaintiffs, said in a statement that "for
> hundreds of years, courts have been there to protect citizens from harm,"
and
> could do so again now.
>
> At the Natural Resources Defense Council, an environmental group that was
not
> a plaintiff, David Doniger, a senior lawyer, said the best way to fight
> global warming was to have Congress act. But he added, "The court's
decision
> guarantees that if the Congress fails to do its job, or blocks the E.P.A.
> from doing its job, the biggest power companies will still be held
> accountable in the federal courts."
>
> At American Electric Power, Pat D. Hemlepp, a spokesman, said the
company's
> lawyers had not decided whether to appeal. But he added: "We don't feel
that
> litigation is a proper avenue to address climate concerns. In our view,
it's
> a policy issue."
>
> "Legislation would be the best approach, and that's happening now," Mr.
> Hemlepp said, referring to a bill that has passed the House and that the
> Senate may take up this year.
>
> Many participants in the global warming debate appear to prefer a decision
by
> the Congress, because it could balance competing interests, between and
among
> regions and industries, to cut emissions of global warming gases.
>
> But Monday's decision means that all three branches of the federal
government
> could have a role. In addition to the possibility that Congress will act,
the
> Supreme Court held in April 2007, that global warming gases were a
pollutant
> under the Clean Air Act, and thus could be regulated by the Environmental
> Protection Agency.
>