In a decision that will add to the ongoing climate debate, and is sure to cause some worry to the nation’s utility companies, a “two-judge panel of a federal appeals court has ruled that big power companies can be sued by states and land trusts for emitting carbon dioxide.” According to Matthew L. Wald’s story for the New York Times, the ruling overturns a previous 2005 District Court decision that the fundamental issue was a political one, not a judicial one, so the court would be overstepping its constitutional boundaries by hearing the case.However, now the two-judge panel of the United States Court of Appeals for the Second Circuit, in New York ruled that California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, 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, all large coal-burning utilities.”
The case was first brought in 2004, and the plaintiffs argued that the defendants emissions, which scientist argue are partially responsible for climate change, were a “public nuisance.” To argue their points the states cited studies by the United Nations and the National Academy of Sciences that essentially said the emissions are damaging the environment.
For their part, the power companies argued, that the federal courts had never recognized an argument in common law that greenhouse gas emissions contribute to global warming, and that if action were to be taken, Congress would have to do it. The lower court agreed with the companies that the issue is ultimately legislative in nature and therefore belongs in the province of Congress.
The panel only had two judges because Sonia Sotomayor recently joined the Supreme Court, so Joseph M. McLaughlin, appointed by first President Bush, and Peter W. Hall, nominated by the second President Bush, decided the issue. Ultimately Congress is the most likely place where major climate change legislation affecting the power companies will be hammered out. However, because of the decision, now states could bring suits themselves against power companies in federal court.
Discussions on whether to appeal the decision are ongoing, but based on this ruling now all three branches of government can have a say in global warming issues. Previously, in 2007 the Supreme Court held “that global warming gases were a pollutant under the Clean Air Act, and thus could be regulated by the Environmental Protection Agency.”
To read the New York Times article click here.
To read a copy of the decision click here.
Posted: 09/23/09
