by David Doniger
In a landmark ruling, the federal court of appeals in New York ruled today in favor of states and private land trusts that had sued America's largest global warming polluters to curb their emissions.
The case is called State of Connecticut v. American Electric Power Co., and the long-awaited ruling was issued today by a panel of the Second Circuit Court of Appeals. (One judge was appointed by the elder President Bush; the other by the younger.)
The appeals court ruled that five large electric power companies can be sued in federal court because the 650 million tons of carbon dioxide they emit each year are contributing to rising temperatures and a host of damaging impacts in other states, including heat waves, smog episodes, droughts and forest fires. The case was brought by the attorneys general of eight states and one city (CT, NY, CA, IA, NJ, RI, VT, WI and NYC) and by two private land trusts. The case will now go back to the federal district court in New York City for trial.
The Second Circuit held that federal courts are empowered to curb damaging carbon pollution unless and until the legislative and executive branches actually regulate that pollution, either under the existing Clean Air Act or the comprehensive new energy and climate legislation bending in Congress.
I worked closely in this case with the attorneys for the states and the land trusts. While the entire team was terrific, three deserve special credit: Connecticut Attorney General Richard Blumenthal conceived the case. Peter Lehner -- now NRDC's executive director -- took the indispensable leadership role as assistant attorney general for New York. And Matt Pawa developed the winning legal theories as lead attorney for the two land trusts, the Open Space Institute of New York and the Audubon Society of New Hampshire. All three argued the case before the Second Circuit panel.
Matt Pawa characterized today's momentous victory this way:
"The court's decision makes clear that the harms of global warming are real and need to be addressed today. For hundreds of years, courts have been there to protect citizens from harm. Today's decision opens the way for citizens to protect themselves from the polluters responsible for global warming. Power companies that release millions of tons of dangerous carbon pollution are not above the law."
Today's decision means there are three pathways open to curb dangerous carbon pollution. The best way is for the Congress to pass comprehensive clean energy and climate legislation. The House passed a bill in June. The Senate is making progress on companion legislation that could pass this fall after health care.
The second pathway is action under the current Clean Air Act. In a historic 2007 ruling, the Supreme Court held that carbon dioxide is an air pollutant and that EPA must curb air pollutants if they are dangerous to public health or welfare. The new EPA administrator, Lisa Jackson, has begun to act on the science that so clearly demonstrates the dangers of global warming.
The third pathway is through the courts. Today's decision reaffirms that people are entitled to their day in court, unless Congress or the EPA does what is needed to protect them.
The irony is that the Senate may vote as early as tomorrow on an amendment, sponsored by Senator Lisa Murkowski (R-AK), intended to block EPA from regulating power plants' carbon dioxide emissions. The amendment, she says, is to give Congress more "breathing space" to consider the new energy and climate legislation.
What it will really do is give certain Senators a further excuse to slow walk the process on new climate legislation. But today's court decision guarantees that if the Congress fails to do its job, or blocks EPA from doing its job, the biggest power companies will still be held accountable in the federal courts.