Global Warming Case Goes to High Court

Source: The Wall Street Journal, Brent Kendall (12/6/10)

"The plaintiffs argued the utility companies are a public nuisance."

The U.S. Supreme Court agreed Monday to hear a power industry appeal of a ruling that allowed eight states and other plaintiffs to proceed with greenhouse-gas lawsuits against several utility companies.

The plaintiffs argued the utility companies, which operate facilities in 21 states, are a public nuisance because of their carbon-dioxide emissions. They asked the courts to require the companies to cap and reduce emissions.

A New York federal judge ruled in 2005 that the plaintiffs could not proceed with the lawsuits because they raised political questions that could not be resolved by the courts, but the U.S. Circuit of Appeals subsequently ruled the case could go forward.

The Supreme Court will review that ruling.

The defendant utilities are American Electric Power Co., Southern Co., Xcel Energy Inc., the federal government-owned Tennessee Valley Authority and Cinergy Corp., which was acquired by Duke Energy Corp. in 2006.

The companies argued in a court brief that if judges can order emissions caps, such directives "could transform the way the United States produces and obtains energy, limit its supply, dramatically raise its cost and jeopardize reliable service to the public."

In a separate legal brief, the Obama administration said questions about how to regulate carbon-dioxide emissions should be addressed by the executive and legislative branches of government, not the courts. It also said recent Environmental Protection Agency efforts to regulate emissions should displace the plaintiffs' ability to sue.

The administration, however, had not urged the Supreme Court to hear the industry appeal, instead asking the justices to send the case back to the appeals court. The high court chose not to take that approach.

The plaintiffs are the states of Connecticut, New York, California, Iowa, New Jersey, Rhode Island, Vermont and Wisconsin, along with New York City and three land trusts.

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