2nd UPDATE: US Appeals Court Reinstates Carbon Emissions Suit
September 21 2009 - 5:37PM
Dow Jones News
A U.S. appeals court on Monday reinstated global-warming
lawsuits brought by eight states, New York City and three land
trusts against several large utility companies, seeking to limit
their carbon-dioxide emissions.
In an order Monday, the Second Circuit Court of Appeals vacated
a district judge's 2005 ruling tossing out the cases, saying the
lower court erred in dismissing the complaints against utilities
that operate fossil-fuel-fired electricity plants in 22 states.
The utilities had argued, in part, that allowing a court to
unilaterally order emissions reductions would interfere with the
President's efforts to induce other nations to reduce their
emissions.
"A decision by a single federal court concerning a common law of
nuisance cause of action, brought by domestic plaintiffs against
domestic companies, does not establish a national or international
emissions policy," U.S. Circuit Judge Peter W. Hall wrote. "Nor
could a court set across-the-board domestic emissions standards or
require any unilateral, mandatory emissions reductions over
entities not party to the suit."
The cases were seeking to limit and ultimately reduce carbon
emissions at six domestic coal-fired electricity plants, rather
than ask the court to "fashion a comprehensive and far-reaching
solution to global climate change," Judge Hall wrote.
U.S. District Judge Loretta Preska in Manhattan dismissed the
cases in 2005, saying the question of whether carbon-dioxide
emissions should be reduced laid with Congress, not the courts.
The utilities are American Electric Power Co. (AEP), Southern
Co. (SO), Xcel Energy Inc. (XEL), the federal government-owned
Tennessee Valley Authority and Cinergy Corp., which was acquired by
Duke Energy Corp. (DUK) in 2006.
One of lawsuits reinstated was brought by the states of New
York, Connecticut, California, Iowa, New Jersey, Rhode Island,
Vermont, Wisconsin plus New York City. The other was brought by
land trusts Open Space Institute Inc., Open Space Conservancy Inc.
and the Audubon Society of New Hampshire.
"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," said
Connecticut Attorney General Richard Blumenthal in a statement.
"Our legal fight is against power companies that emit a huge share
of our nation's CO2 contamination, but it will set a precedent for
all who threaten our planet with such pernicious pollution."
In a statement, New York Attorney General Andrew Cuomo said,
"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. Today's decision allows us to press
this crucial case forward and address the dangers posed by these
coal-burning power plants. My office will continue to be a leader
in the fight to tackle the risks global warming poses to our
environment, public health and economy."
The cases were remanded to Judge Preska for further
proceedings.
New U.S. Supreme Court Justice Sonia Sotomayor was on the
three-judge panel that heard arguments in the case in 2006.
However, Sotomayor wasn't involved in the decision as a result of
her elevation to the high court.
Representatives at AEP, Southern, Xcel and Duke said employees
at their companies were still reviewing the decision and wouldn't
comment until they had had a chance to read the entire 139-page
document. A TVA spokeswoman said TVA had just received the decision
and will review it in its entirety.
- By Chad Bray, Dow Jones Newswires; 212-227-2017;
chad.bray@dowjones.com