In a legal gambit aimed against global warming, the attorneys general of eight states yesterday sued the five largest emitters of carbon dioxide (CO2) in the United States for creating a public nuisance. The states are asking that the electric utility companies cut emissions by 3% each year for a decade. Legal experts predict the states' case will be an uphill battle.
Carbon dioxide litigation is heating up. In 2002, environmental groups sued the Overseas Private Investment Corp. and the Export-Import Bank of the United States for not conducting environmental reviews on financing power plants. And last year, Maine, Massachusetts, and Connecticut sued the Environmental Protection Agency for not regulating CO2 as a pollutant under the Clean Air Act. Now, the states have taken the first legal action directly against CO2 emitters.
The plaintiffs--California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, and Wisconsin, along with the City of New York--claim that the CO2 utility companies release contributes to global warming, which will harm state residents. The alleged ills include increased numbers of deaths from heat waves, more asthma from smog, beach erosion, contamination of groundwater from rising sea level, and more droughts and floods. "The harm to our states is increasing daily," Eliot Spitzer, the attorney general of New York, said at a press conference.
The defendants together spew about 650 million tons of CO2 a year. Their 174 fossil-fuel-burning plants contribute roughly 10% of anthropogenic CO2 in the United States. The suit maintains that annual cuts of 3% are feasible through making plants more efficient, promoting conservation, and using wind and solar power--without substantially raising electric bills. "All that is now lacking is action," Spitzer said.
That claim irks American Electric Power of Columbus, Ohio, a defendant. Spokesperson Melissa McHenry says the company had already committed to reducing its emissions by 10% by 2006. "Filing lawsuits is not constructive," she says. "It's a global issue that can't be addressed by a small group of companies."
It will also be a tough suit to win, says Richard Brooks of the Vermont Law School, who studies the legal issues of air pollution. The fact that global warming is a planet-wide phenomenon will make it difficult to establish how much these companies are contributing to the claimed harm. And under public nuisance law, the plaintiffs must show that their citizens are suffering significantly more than the nation as a whole. "I would be totally amazed if the court gave this a serious response," Brooks says. "This makes me imagine that this is more of a symbolic suit."