A Litigious Society Can Have Its Uses. (July 22, 2004)

    Yesterday's New York Times reports, eight US states and New York City are suing five large utilities that are the United States' biggest emitters of carbon dioxide. Specifically California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin together with the City of New York are suing American Electric Power, Cinergy, the Southern Company, the Tennessee Valley Authority and Xcel Energy. They operate more than 170 power plants that burn fossil fuels and that the states and city contend emit 646 million tons of carbon dioxide a year, or 10 percent of the national total.

According to The New York Times

     Many states, including many of those involved in the new lawsuit, have already been using litigation to pressure out-of-state power plants to curtail nitrogen and sulfur emissions that travel long distances.

    Other suits have been filed by states and private organizations against the Environmental Protection Agency over carbon dioxide, contending that the agency had failed to restrict the gas as a pollutant under the Clean Air Act despite growing evidence that it posed risks.

    "But the new suit was the first state legal action taken directly against companies that discharge carbon dioxide...

 

The plaintiffs are basing the suit on US federal common law of public nuisance. The common law, they said in a news release, "provides a right of action to curb air and water pollution emanating from sources in other states."

The complaint is available online. (PDF, 2 MB).

Lawyers for the accused companies, however, claim that the the states and NYC will have a hard time making a case that carbon dioxide was a pollutant.  They point to the fact that C0₂ flowed not only from power plants, but was also in "exhaled breaths and the bubbles rising from open beer containers."

It would be surprising if the case does not wind up in the US Supreme Court and evoke world-wide interest. Whether or not Australian environmentalists or the Australian states and territories will take a cue from events in the US remains to be seen, but with a federal election in the offing it could get interesting.