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Appeals court OKs global warming nuisance suits

Posted On: Sep. 23, 2009 12:00 AM CST

NEW YORK—The 2nd U.S. Circuit Court of Appeals in New York has ruled that five of the largest U.S. coal-burning electric utilities can be sued under the federal common law of “nuisance” for their alleged contribution to global warming.

A two-judge panel of the 2nd Circuit held that a lower court erred in dismissing the complaints on political question grounds, that all of the plaintiffs have standing to bring their claims and that the federal nuisance common law governs their claims.

The Monday decision, which overturned and remanded a judgment by the U.S. District Court for the Southern District of New York in State of Connecticut et al. vs. American Electric Power Co. et al., effectively paves the way for other lawsuits against utilities alleging nuisance from carbon dioxide emissions, environmental attorneys say.

“This decision potentially enables every state and municipality in the country to bring nuisance suits against an almost limitless range of (carbon dioxide) emitters,” John Nevius, a partner in the insurance recovery group of Anderson Kill & Olick P.C. in New York, said in a statement. He was not involved in the suit.

Eight states—California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin—and New York city filed the suit in 2004 against American Electric Power Co. Inc., American Electric Power Service Corp., Southern Co., the Tennessee Valley Authority, Xcel Energy Inc. and Cinergy Corp. seeking “abatement of defendants’ ongoing contributions to a public nuisance” under federal common law, or in the alternative, under state law.

The suit, which has been returned to the district court for trial, seeks damages to compensate for a range of injuries the states and city expect to occur during the next 10 to 100 years if global warming is not abated. That includes increased illnesses and deaths caused by intensified and prolonged heat waves; increased smog, with a concomitant increase in residents’ respiratory problems; significant beach erosion; accelerated sea-level rise and the subsequent inundation of coastal land and damage to coastal infrastructure; salinization of marshes and water supplies; lowered Great Lakes water levels, and impaired shipping, recreational use and hydropower generation; more droughts and floods, resulting in property damage; increased wildfires, particularly in California; and the widespread disruption of ecosystems, which would seriously harm hardwood forests and reduce biodiversity.

“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,” Connecticut Attorney General Richard Blumenthal, who personally argued the case, said in a statement.

Lawyers for the power companies are reviewing the decision and have not decided their next course of action, a spokesman for Columbus, Ohio-based AEP said.

“It is our view that litigation is not the best way to address climate concerns. It is a public policy issue,” the spokesman said.

He added that AEP supports the American Clean Energy and Security Act of 2009 pending in Congress that would address such issues.