States may sue utilities over climate, court says

updated 6:40 p.m. ET Sept. 21, 2009

NEW YORK - 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.

The 2nd U.S. Circuit Court of Appeals in Manhattan reinstated the lawsuits after a lower court judge tossed out the actions brought in 2004 by eight states, New York City and three land trusts.

The lawsuits had accuse the companies of being among the largest emitters of carbon dioxide in the world and sought to force them to reduce their carbon dioxide emissions.

The appeals court said the lower court judge erred in ruling that the issue was a political one that was not meant to be decided by the courts.

The court said that not every case with political overtones has to be kept out of the courts.

"It is error to equate a political question with a political case," the court wrote. "Given the checks and balances among the three branches of our government, the judiciary can no more usurp executive and legislative prerogatives than it can decline to decide matters within its jurisdiction simply because such matters may have political ramifications."

The appeals court noted that the legislative branch was free to amend the Clean Air Act to regulate carbon dioxide emissions, and the executive branch can regulate emissions through the Environmental Protection Agency.

It also rejected arguments by the companies that any pollutants must be "poisonous" or "noxious," local in nature and capable of producing immediate harm to be challenged in a lawsuit.

"The touchstone of a common law public nuisance action is that the harm is widespread, unreasonably interfering with a right common to the general public," the court wrote.

The ruling was made by two judges rather than the usual three because the third judge was supposed to be Sonia Sotomayor, who is now a Supreme Court justice.

The states bringing the lawsuit are California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin. New York City and three nonprofit land trusts also are part of the litigation.

The states want the courts to order the companies to reduce carbon dioxide emissions 3 percent annually for 10 years. They say the greenhouse gas is one of the chief causes of global warming. The gas is produced when coal, gasoline and other fossil fuels burn.

The lawsuits seek to force a reduction of carbon dioxide emissions by American Electric Power Co. Inc., Cinergy Co., Southern Co. Inc. of Georgia, Xcel Energy Inc. of Minnesota, and the federal Tennessee Valley Authority.

A lawyer for the companies did not immediately return a phone call seeking comment.

Connecticut Attorney General Richard Blumenthal said in a statement that the ruling "breathes new life into our fight against greenhouse gas polluters and changes the legal landscape to impose responsibility where it belongs."

He added: "This ruling vindicates our tenacious and tireless battle on behalf of a powerful coalition of states and environmental advocates — a battle that will now have its day in court."

Blumenthal compared the effort with the fight against tobacco companies, saying the states were seeking to save lives and the planet from global warming.

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