* Greenhouse gas emissions case brought in 2004
* Judge erred in dismissing suit -- appeals court
(Adds comments from utilities, adds LOS ANGELES dateline)
By Grant McCool
NEW YORK/LOS ANGELES, Sept 21 (Reuters) - A U.S. Appeals
Court reinstated on Monday a 2004 lawsuit by eight states and
the city of New York against five of the largest U.S. utilities
over their carbon dioxide emissions.
The lawsuit was dismissed in October 2005 by U.S. District
Court Judge Loretta Preska, who said the issue was a political
question for Congress or the President, not the judiciary.
Monday's ruling by the U.S. Court of Appeals for the 2nd
Circuit in New York said the judge "erred in dismissing two
complaints on the ground that they presented non-justiciable
political questions."
The lawsuit against American Electric Power Co Inc (AEP.N),
Southern Co (SO.N), Xcel Energy Inc (XEL.N), Cinergy Corp and
the Tennessee Valley Authority (TVC.N) public power system,
argued that greenhouse gas emissions from their plants were a
public nuisance and would cause irreparable harm to property.
The utilities are five of the largest carbon dioxide
emitters in the United States. Around 40 percent of U.S. carbon
dioxide emissions come from fossil-fueled power plants.
Lawyers or representatives of the companies were either not
immediately available to comment or could not immediately be
reached for comment on the decision.
The top legal officers for Connecticut and New York
welcomed the decision.
"Our goal is not money damages, but a change in company
practices to stem the pollution and safeguard our environment
and economy," Connecticut Attorney General Richard Blumenthal
said in a statement.
New York Attorney General Andrew Cuomo said: "Today's
decision allows us to press this crucial case forward and
address the dangers posed by these coal-burning power plants."
Xcel Energy, the Tennessee Valley Authority and Duke Energy
Corp (DUK.N), which has acquired Cinergy since the original
lawsuit, declined to comment, citing the need to review the
decision.
American Electric Power repeated the position it took when
the suit was first filed.
"Litigation is not the best way to address climate issues,"
said Pat Hemlepp, a spokesman for the utility.
"It is a public policy issue. Climate concerns should be
addressed through legislation. That's happening now," Hemlepp
said, referring to climate change legislation working its way
through Congress. He said AEP supports the legislation.
The states that sued were California, Connecticut, Iowa,
New Jersey, New York, Rhode Island, Vermont and Wisconsin.
Three land trusts -- Open Space Institute Inc, Open Space
Conservancy Inc and the Audubon Society of New Hampshire --
joined the case.
"We hold that the district court erred in dismissing the
complaints on political question grounds; that all of the
Plaintiffs have standing; that the federal common law of
nuisance governs their claims," said the ruling by two judges
on the appeals court panel.
The panel originally included Sonia Sotomayor, who was
elevated to the U.S. Supreme Court on Aug. 8.
"We vacate the judgment of the district court and remand
for further proceedings," the ruling said.
Coal-fired power plants emit roughly twice as much carbon
dioxide as natural gas-fired plants. Nuclear power plants emit
virtually no greenhouse gases.
Scientists say greenhouse gases such as carbon dioxide warm
the Earth by trapping solar heat in the atmosphere, which could
have catastrophic consequences, including raising sea levels
and strengthening extreme weather.
The case is State of Connecticut et al v American Electric
Power Company Inc et al 04-05669 in U.S. District Court for the
Southern District of New York (Manhattan)
(Reporting by Grant McCool and Laura Isensee; editing by Andre
Grenon and Matthew Lewis)
