September 21, 2009 / 9:09 PM / 10 years ago

U.S. court reinstates emissions suit vs. utilities

NEW YORK/LOS ANGELES (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.

A layer of smog can be seen above Manhattan through the Verrazano-Narrows Bridge in New York May 21, 2009. REUTERS/Lucas Jackson

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, Southern Co, Xcel Energy Inc, Cinergy Corp and the Tennessee Valley Authority 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, 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 August 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

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