Eight states, New York City to consider landmark emissions lawsuit

23 July 2004 - When a rendering plant persists in stinking up the neighborhood or a dump keeps fouling area drinking-water wells, the victims have a centuries-old friend they can tap to haul the offender into court: the common law of public nuisance.

Now, California and seven other states and New York City are trying to stretch this doctrine to cover emissions neither odorous nor toxic from power plants far outside the neighborhood.

In an unprecedented lawsuit filed Wednesday, the governments' lawyers invoked the federal and state common laws of public nuisance in asking the Manhattan federal District Court to order the nation's five largest electricity suppliers to curb power plant emissions of gases linked to global warming.

"This is a pioneering effort in lawyering," California Attorney General Bill Lockyer said Wednesday in announcing the legal action at a Los Angeles press conference.

It also is the first time government has sued businesses under any grounds over emissions of the climate-altering or greenhouse gases, Lockyer said.

Unlike carbon monoxide and smog-forming nitrogen oxides in auto exhaust, the greenhouse gases - mainly carbon dioxide - are not hazardous to breathe.

The increasing buildup of these gases in the atmosphere, however, can alter Earth's temperature and lead to catastrophic changes in sea levels, water supplies, crop production, disease and wildfires. Like the glass panels of a greenhouse, the gases trap some of the sun's radiation reflected by Earth, raising the atmospheric temperature.

The global warming lawsuit asserts that the electric power industry is the largest contributor in the United States to global climate change, responsible for ten per cent of all carbon dioxide emissions from human activity in the country. And the five power companies named as defendants - American Electric Power Co., Southern Co., Xcel Energy, Cinergy Corp. and Tennessee Valley Authority - generate about 25 per cent of the carbon dioxide from power plants in the nation, the suit states.

The companies own about 175 plants in 20 states, mainly in the South and Midwest, that together emit about 652m t of carbon dioxide every year, according to the suit.

"That's three and one-half times what (carbon dioxide) from California auto emissions are," Lockyer said.

Public nuisance laws borrowed from England have been used since the founding of the United States to remedy local and interstate pollution ranging from sewage to acid rain and even tobacco smoke.

The multistate global warming suit is unprecedented in extending the doctrine to remedy a planetary environmental problem. But the gist of the complaint basically is no different from the neighborhood fight with the smelly hog farm, said James Tierney, a former attorney general of Maine who teaches at Columbia University's law school.

In California, public nuisance cases have ranged from complaints over gold-mining wastes in the 1880s to a lawsuit brought by the South Tahoe Public Utility District against major oil companies for making gasoline containing the chemical MTBE, which has contaminated wells.

"Defendants' emissions of carbon dioxide, by contributing to global warming, constitute a substantial and unreasonable interference with public rights... the right to use, enjoy and preserve the aesthetic and ecological values of the natural world," the lawsuit states.

The power industry Wednesday called the suit irresponsible. "Although the lawsuit alleges harm to the public, the real harm is not the utility companies... but this lawsuit," said Myron Ebell, a spokesman at the Competitive Enterprise Institute, an industry-funded think tank.

"It would force consumers in other states to pay much higher prices for electricity," Ebell said. "The attorneys general are engaging in irresponsible political grandstanding."

The gist of the global-warming complaint basically is no different than the neighborhood fight with the smelly hog farm, Columbia University's Tierney said.

But Columbia University's Tierney countered: "You have a pretty clear harm and you have states coming in to fill the vacuum left by the federal government. It was a courageous thing for the states to do. This is not an easy case. It's too bad we're going around the federal government to do this."

Common-law remedies are at their strongest when the laws enacted by government are either nonexistent or ineffectively enforced, said Clifford Rechtschaffen, a professor of environmental law at Golden Gate University.

"These remedies have receded in visibility and importance with the advent of environmental laws in the 1960s and '70s, but they still remain viable and potentially very powerful tools, especially to fill the gaps in statutory protection," Rechtschaffen said.

With the filing of the global-warming lawsuit, he said, "We are seeing people resorting to common law because of an egregious gap."

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