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Breaking: Federal court says states may sue utilities over GHGs. NY AG Cuomo: “This is a game-changing decision for New York and other states, reaffirming our right to take direct action against global warming pollution from power plants.”

By Joe Romm  

"Breaking: Federal court says states may sue utilities over GHGs. NY AG Cuomo: “This is a game-changing decision for New York and other states, reaffirming our right to take direct action against global warming pollution from power plants.”"

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A federal appeals court ruled Monday that states trying to combat global warming can sue six electric utilities to force them to cut the greenhouse gases emitted by their power plants in 20 states.

You can read the full ruling here.  David Hawkins, director of the Natural Resources Defense Council’s climate programs, told Greenwire (subs. req’d) tonight,

Hawkins added, “The import of this ruling is that failure of Congress or EPA to act on GHG will not immunize emitters from legal action to compel reductions in emissions.”

Take that, delayers!

Again, a federal climate bill would be the best strategy for the country — and the world.  But if Congress fails to act — and if fiddlers like Sen. Lisa Murkowski of Alaska block EPA action, then the only place left for recourse will be the courts.

Here are more details on the case from Reuters:

The lawsuit against American Electric Power Co Inc, Southern Co, Xcel Energy Inc, Cinergy Corp and the Tennessee Valley Authority public power system, argued that greenhouse gas emissions from their plants were a public nuisance and would cause irreparable harm to property.

The utilities are five of the largest carbon dioxide emitters in the United States. Around 40 percent of U.S. carbon dioxide emissions come from fossil-fueled power plants.

Lawyers or representatives of the companies were either not immediately available to comment or could not immediately be reached for comment on the decision.

The top legal officers for Connecticut and New York welcomed the decision.

“Our goal is not money damages, but a change in company practices to stem the pollution and safeguard our environment and economy,” Connecticut Attorney General Richard Blumenthal said in a statement.

New York Attorney General Andrew Cuomo said: “Today’s decision allows us to press this crucial case forward and address the dangers posed by these coal-burning power plants.”

… The states that sued were California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin. Three land trusts — Open Space Institute Inc, Open Space Conservancy Inc and the Audubon Society of New Hampshire — joined the case.

As Greenwire explains:

The power companies also insisted that federal common law had not been applied to an issue of such sweeping scale that covered all aspects of the U.S. economy. And they warned that the litigation would be a precursor to more global warming nuisance claims — with no end in sight as plaintiffs ticked through other sources of greenhouse gas emissions.

But the 2nd Circuit rejected all lines of the industry’s defense with an opinion that cites the closing lines of a 1972 Supreme Court decision that dealt with similar common law questions concerning air pollution that crossed state lines.

It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance,” the Supreme Court wrote in Illinois v. Milwaukee. “But until that time comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance.”

After the 2nd Circuit judges finished quoting the Supreme Court decision, they inserted the words “by greenhouse gases.”

Kudos to the states who brought the suit and the federal court who decided the case.

Illinois v. Milwaukee.

‹ Looks like I’ll be covering the G20 meeting in Pittsburgh

Boxer (D-CA) readies for climate bill introduction, Mid-Oct. markup. Carper (D-DE): “The fact we’ve slowed down on health care I think gives us a chance to do a better job on the clean energy front.” ›

15 Responses to Breaking: Federal court says states may sue utilities over GHGs. NY AG Cuomo: “This is a game-changing decision for New York and other states, reaffirming our right to take direct action against global warming pollution from power plants.”

  1. David B. Benson says:

    Wowzer!

  2. Brent says:

    I don’t think it will be lost on the coal industry that complying with a single set of Federal rules could be cheaper than a patchwork of lawsuits and differing state regulations. We could end up having the coal industry backing a climate bill! If I recall correctly, the tobacco companies came under similar pressures, and eventually welcomed a uniform settlement.

  3. LAC says:

    It’s remarkable and encouraging that the two judges who issued this landmark ruling were both Republican appointees (the third panel member had been Sotomayor). Hall, the opinion’s author, was appointed by George W. Bush. McLaughlin, who joined Hall, was appointed by George H.W. Bush, and prior to that was appointed to a district judgeship by Reagan. It will be tough for opponents to decry this decision as liberal judicial activism, though I’m sure it won’t stop them from trying.

  4. LAC says:

    Big coal and the utility holdouts should not count on the Supreme Court to reverse this decision: remember that Kennedy, the likely swing vote, joined the 2007 opinion holding that EPA had the authority to regulate greenhouse gas emissions. Who will be the first industry holdout to realize that the certainty of the clean energy bill is preferable to the new status quo without it: either new EPA rules under the Clean Air Act (Murkowski’s bill won’t pass the House), or a host of federal court orders and injunctions following costly litigation.

  5. JoshKaplowitz says:

    I agree that the likely consequence of this decision is to propel climate legislation. The opinion closes by quoting a similar Supreme Court case that preceded the Clean Water Act: “’It may happen that new federal laws and new federal regulations may in time pre-empt the field of federal common law of nuisance. But until that comes to pass, federal courts will be empowered to appraise the equities of the suits alleging creation of a public nuisance’ by greenhouse gases.” Hard to imagine a clearer statement of purpose.

  6. Sasparilla says:

    I second Mr. Benson’s wonderful articulation on this. The battle has been joined on another front. I hope this carries weight.

  7. paulm says:

    Why bother with court action.

    Why don’t they nationalize the coal and oil companies and implement a de-carbonizing plan now.

    Whats so difficult about that.

    If the dangers of climate change can be proven in a court of law backed by the current scientific facts and observation, then because of the overwhelming scope of the catastrophe of climate change I think the US and other governments have the mandate to do what is necessary.

    Lets start converting the coal plants natural gas now.

  8. Great news! Legislators have really done so little, now maybe the Judiciary can make change.

  9. Bob Wright says:

    Would state governments be able to control outsourcing from coal plants in other states, Canada and Mexico? If not, no real difference will be made. There is already controversy that a proposed green power transmission line to California will be used to carry power from Mexico, and the utility won’t deny the possibility.

  10. Mike#22 says:

    Let’s hope other states follow this lead and go for the money. Not that the coal companies’ net worth is equal to even 1% of the harm their defective product is causing, but going after their assets will make their operations financially untenable.

  11. Tim r says:

    This is further proof that strong action at EPA using the Clean Air Act is a highly important tool for addressing the issue. Federal judges are not always subject to the same political pressures as elected officials. When disaster is staring them in the face, they will even go against the political positions of the party that appointed them. The endangerment finding needs to be expanded for all relevant CAA sections and regulations for all sectors need to be proposed ASAP. Then watch the deniers beg for a climate bill.

  12. ecostew says:

    Great news.

  13. Spock says:

    The Earth is on the precipice of disaster, so why are you in a room with the lights on, using a computer, adding to electricity demand? Come on, now. Stop being hypocritical. Walk the walk.

    [JR: Nice try. Try reading this blog before you post your nonsensical reductio ad absurdum comments. Who every said people have to stop using electricity -- other than folks like you?]

  14. Spock says:

    My post didn’t advocate stopping your electricity use. I merely inquired why you are adding to demand. Why not turn the lights off? Just flip the switch. You’re unwilling to do that? Why?

    [JR: Your comments have already descended from mildly amusing in an unintentional way to outright nonsense. The only way I could not add to electricity demand is to stop my electricity use. Find a denier website to comment on, please.]

  15. BBHY says:

    Spock, my solar panels are supplying enough power to keep my PC running. charge my electric car, and still export the excess to the grid.

    Why don’t you stop assuming you know what everybody else is doing, and mind your own business.