Greenhouse Gas Nuisance Suit Reactivated

By Published On: September 25, 2009

A federal appellate court upheld California and others seeking to force large emitters of coal-fired power to curb their emissions. The September 21 ruling by the Second District Court of Appeals in New York found that complaints by California, seven other states, and three land trusts, filed in July 2004 against American Electric Power and four other generators with plants in 20 states were not exclusive political matters and were properly before the court. “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.” stated California Attorney General Jerry Brown. He urged Congress to enact climate protection legislation. The ruling targets AES, Cinegy, Southern Power, the Tennessee Valley Authority, and Xcel. The suing parties assert these companies together emit 650 million tons of carbon dioxide a year and are responsible for 10 percent of the U.S. greenhouse gases. California and the others’ legal arguments warn of current and future harm from climate change exacerbated by rising emissions from the targeted coal plans. The defendants seek to force the power companies under federal and state nuisance laws to reduce emissions at their coal-generated electric facilities by a set amount every year for ten years. The two-judge federal panel in its 139-page decision stated although the claimed injuries from increasing carbon emissions are part of a worldwide problem it does not foreclose the problem from being addressed through “principled adjudication.” The opinion continues that California et al. need not wait for an “initial policy decision in order to proceed on this federal common law of nuisance, as such claims have been adjudicated in federal courts for over a century.” (The third appellate judge originally on the case, Sonia Sotomayer, now sits on the U.S. Supreme Court). In addition to California, the defendants include the states of Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin. The federal appellate ruling both vacated the lower court’s decision and laid out a framework for it to evaluate the merits of the case.

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