2nd Circuit Allows State’s Lawsuit on Global Warming to Move Forward

Attorney General Patrick Lynch heralded yesterday’s ruling by the Federal Court of Appeals in New York as another significant victory to force America’s five biggest global warming polluters to curb their emissions.

The ruling by the Second Circuit Court of Appeals represents another win in a lawsuit filed by Lynch and seven other state attorneys general almost six years ago against the nation’s highest-emitting electric power companies. The lawsuit is the first ever brought by state attorneys general against private companies to force reductions in heat-trapping carbon dioxide emissions.

The multi-state global warming case is now headed for a major trial in US District Court in New York unless the power industry is successful in first obtaining a ruling from the United States Supreme Court. If the case goes to trial, Lynch said, the theory of man-made climate change could be tested in a battle of experts.

“We can avoid a lengthy court battle if the profit-driven energy industry giants cease fighting change in the halls of Congress and support new regulations that are so crucial to the sustainability of our environment and our planet,” Lynch said. “The emissions from the defendant companies amount to nearly a quarter of emissions from the electric utility industry in our nation, and approximately 10 percent of all emissions in the entire United States. The federal lawsuit we filed in 2004, using nuisance law to force carbon reductions, does not seek monetary damages but calls on the companies to reduce their pollution. The nuisance created by carbon dioxide directly threatens Rhode Island’s public health and safety, economy, coastline, fisheries and tourism – indeed our very way of life. It’s time for reason, and respect for our fragile environment, to prevail.”

In September 2009, in a victory at the frontiers of the law, Lynch and his seven colleagues obtained a decision against the power industry in the fight to reduce greenhouse gases contributing to global warming. Last September’s ruling in favor of the states from a two-judge panel of the Second Circuit Court of Appeals was a sweeping reversal of a previous ruling by a trial court that dismissed the case at the outset. That ruling by the Second Circuit determined that a federal lawsuit can proceed unless and until there is action directly regulating greenhouse gases under the current Clean Air Act or new climate legislation. Yesterday, the full panel of 21 judges affirmed the September 2009 ruling in an order refusing to rehear the case.

The companies named in the lawsuit are American Electric Power Company, the Southern company, Tennessee Valley Authority, Xcel Energy Inc. and Cinergy Corporation. At the time the suit was filed in 2004, these entities owned or operated 174 fossil fuel-burning power plants in 20 states and emitted 650 million tons of carbon dioxide every year.

The plaintiff states, in addition to Rhode Island, are California, Connecticut, Iowa, New Jersey, New York, Vermont and Wisconsin. The City of New York also is a plaintiff.

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