The freedom of big power companies to pollute was curtailed this week when a New York court ruled that they can be sued to make them cut their carbon emissions.
The trail-blazing judgement by the New York Second Circuit Court of Appeals confirmed that five giant utility firms can be sued in federal courts because their carbon dioxide emissions are a public nuisance that contribute to global warming and other environmental problems including heat waves, smog, drought and forest fires.
The court said 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, which are all large coal-burning utilities.
2% of global emissions
The five companies between them own or operate 174 power plants in 20 states, producing 650 million tons of CO2 each year. They alone account for a quarter of the U.S. electric industry’s global warming emissions, 10 percent of the nation’s total CO2 pollution or two per cent of emissions worldwide.
The states quoted studies by the United Nations and the National Academy of Sciences that predicted environmental harm from carbon emissions and argued that their environments had already been damaged. The land trusts said that among other problems, an increase in sea level would inundate their properties. They asked for the utility companies to reduce their carbon emissions by three per cent a year over the next decade.
The power companies argued that the federal courts have never recognized an argument in common law that greenhouse gas emissions contribute to global warming.
But the court held that federal courts are empowered to limit damaging carbon dioxide emissions unless and until the legislative and executive branches regulate that pollution, either under the existing Clean Air Act or the comprehensive new energy and climate legislation now working its way through Congress.
A critical milestone
The Appeal court ruling was welcomed by state legal officers. California Attorney General Jerry Brown called the judgement “a critical milestone”. “It’s highly significant that the federal court has affirmed the right of states to challenge the greenhouse gas emissions generated by coal-fired power plants” he said. “It allows global warming cases to be decided by the courts, just as they decide complex water pollution, air pollution, and toxic dumping cases.”
The decision reverses an earlier judgement by a lower court in 2004, when the states and land trusts brought an identical case. At the time the New York District Court ruled that the issue was political and therefore not appropriate for judicial consideration.
Connecticut Attorney General Richard Blumenthal said it would alter the balance of power in the fight against global warming. “This ruling restoring our legal action breathes new life into our fight against greenhouse gas polluters and changes the legal landscape to impose responsibility where it belongs,” he said.
Legislation beats litigation
American Electric Power, said it has not decided whether to appeal. “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.” said a spokesman
At the Natural Resources Defense Council, an environmental group that was not a plaintiff, David Doniger, a senior lawyer, agreed that 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.”