Power Providers Feel the Heat in Global-Warming Ruling

(CN) - A global-warming case against six power companies, including the five "largest emitters of carbon dioxide in the United States and ... among the largest in the world," is back on, after the 2nd Circuit on Monday reinstated the federal public nuisance claims of eight states, New York City and three land trusts.

"This case is a critical milestone, allowing global warming cases to be decided by the courts, just as they decide complex water pollution, air pollution and toxic dumping cases," California Atty. Gen. Jerry Brown said in a statement. "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."

American Electric Power Company Inc., American Electric Power Service Corp., Southern Company, Tennessee Valley Authority, Xcel Energy and Cinergy Corp. own and operate fossil-fuel-fired power plants in 20 states.

In 2004 two lawsuits were filed - one by the states and New York City, the other by the land trusts - against the same six companies, claiming their 650 million tons per year of carbon dioxide emissions significantly contributed to global warming, threatening human health and natural resources.

Carbon dioxide acts as a greenhouse gas that traps heat in the earth's atmosphere, causing the earth's temperature to rise, the plaintiffs claimed. They asked the court to force the power companies to cap and then decrease emissions, warning that the earth's temperature "will accelerate over the coming decades unless action is taken to reduce emissions of carbon dioxide."

They filed suit under federal nuisance law or, alternatively, state nuisance law. The district court dismissed their actions as barred by the political question doctrine, explaining that the issue of global warming is best left to the political branches of government to resolve.

The plaintiffs launched a multipronged appeal, claiming that their cases aren't barred by the political question doctrine; they have standing to sue; their federal nuisance claim was properly pleaded; and the Clean Air Act doesn't displace that claim.

The power companies rebutted each of these points and urged the Manhattan-based appeals court to back the lower court's decision.

In a 139-page opinion, the 2nd Circuit found that all of the plaintiffs have standing to challenge the alleged contributions to global warming, which the court characterized as "interference with a public right in protecting natural resources."

And although the Clean Air Act addresses pollution and global climate change, the court ruled, the Environmental Protection Agency "does not currently regulate carbon dioxide under the (Act) - at least not in the sense that EPA requires control of such emissions at this time." In other words, the EPA has only proposed regulation; it hasn't imposed it.

Without specific regulation, the Clean Air Act and other federal laws "touching on" global warming don't prevent the plaintiffs from suing under federal nuisance laws, the court concluded.

The judges also rejected the power companies' claim that the lawsuit would undermine the nation's global climate-change strategy. This claim "simply reiterates their political question argument and must be rejected for similar reasons," Judge Hall wrote.

Finally, the court determined that the Tennessee Valley Authority isn't immune from suit based on its status as a federally chartered agency.

"The flaw in TVA's ... argument is that TVA is not the United States or Congress," Hall wrote, noting that the TVA has sided against the government "in a number of cases."

Judges McLaughin and Hall unanimously revived the claims and remanded. (Justice Sonia Sotomayor, the newest member of the U.S. Supreme Court, was originally the third judge on the panel.)

"The time has now come for Congress to enact long overdue climate protection legislation," Brown said.

The plaintiff states are California, New York, Connecticut, Rhode Island, New Jersey, Iowa, Wisconsin and Vermont. Plaintiff land trusts are the Open Space Institute, the Open Space Conservancy and the Audubon Society of New Hampshire.

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