Public Nuisance No. 1

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http://www.alternet.org/envirohealth/19442/

 

Public Nuisance No. 1

By Amanda Griscom, Grist Magazine

 

Posted on August 3, 2004,

http://www.alternet.org/story/19442/

 

It may have sounded like the understatement of the

year when a lawsuit was filed last week against five

major U.S. energy companies, alleged to be among the

biggest global-warming culprits in the nation, on the

legal grounds that they're causing a " public

nuisance. "

 

In reality it may have been one of the gutsiest legal

maneuvers the U.S. has ever seen on climate change –

and some observers say it could have the strange side

effect of encouraging energy companies to ask the feds

for mandatory emissions caps.

 

Last Wednesday, the chief lawyer for New York City and

attorneys general of eight states, including New York,

California, Iowa, and Wisconsin, sued industry top

dogs – Cinergy Corp., Southern Company, Xcel Energy,

American Electric Power Company and the Tennessee

Valley Authority – for coughing up a whopping 10

percent of America's carbon-dioxide emissions.

 

States have in the past filed suit against the U.S.

EPA for failing to take action on global warming and

CO2 emissions, but this time the attorneys general

stuck it directly to the polluters.

 

" We're the first to agree that federal action to

reduce carbon emissions is in order, but that's

clearly not happening, and meanwhile our states are

being damaged, " said Judith Enck, policy advisor to

New York Attorney General Eliot Spitzer (D), who is

spearheading the lawsuit effort. " We can't just sit

idly by. "

 

Spitzer and a handful of other AGs, including

Connecticut's Richard Blumenthal (D) and California's

Bill Lockyer (D), found legal justification for the

lawsuit in a series of centuries-old " public nuisance "

prohibitions that were adapted from English common law

to protect the health of the commons.

 

The AGs are demanding no financial penalties for the

climate damage done so far, but are asking that the

energy companies take immediate action to begin

reducing their CO2 emissions 3 percent per year for

the next 10 years.

 

" The lawsuit itself is a huge, historic first step

toward holding companies accountable for their

contributions to climate change, " Blumenthal said.

" Moreover, the [rate of reduction] we're asking for is

sensible, reasonable, achievable, and could be done at

little cost to ratepayers. "

 

Not surprisingly, the defendants are scoffing at the

suit. " We provide energy to customers in 11 states –

that is not a nuisance at all. I'm offended by that, "

said Wayne Brunetti , CEO of Xcel Energy, during a

forum on July 22 sponsored by the Progress and Freedom

Foundation. " When I see [the lawsuit], I'm going to

find it replete with mis-facts. "

 

" This brings new meaning to the term 'nuisance

lawsuit,' " said Scott Segal, a partner at the law firm

Bracewell and Patterson , which represents industry

interests. " They're trying to apply some

1,000-year-old legal doctrine that was developed to

deal with trivial nuisances along the lines of a

neighbor throwing trash in the yard next door to this

sprawling, ambiguous, and scientifically questionable

notion of climate change. There's not a chance it will

hold up in court. "

 

But according to Blumenthal, the public-nuisance claim

is solid: " It's not arcane or anachronistic;

'nuisance' law is still routinely used in modern court

decisions. " Common law develops over time through

court decisions that establish principles – in this

case, principles along the lines of the do-unto-others

rule: " It says everyone shares a duty to avoid harming

people when there are achievable ways to avoid that

harm, " said Blumenthal.

 

The decision to go forward with this suit was made

after three years of research, investigations, and

legal theorizing. " We have already devoted a great

deal of time and a lot of resources to this effort, "

Blumenthal said. " We have not undertaken this action

lightly, and we are fully prepared to accept the

mammoth effort it would take going forward to bring

this suit to trial. "

 

Mammoth indeed. The power companies in question

operate 174 power plants in 20 states. Simply

investigating the carbon emissions of these facilities

would take years of further research and mountains –

quite literally – of documents.

 

" We have an entire hallway of our office filled with

boxes of research documents on the emissions of one

coal plant, " Enck said. " So to investigate the nearly

200 plants in this case, we'd probably have to build

an entire warehouse to house the documents. But don't

think we're not willing to do it. "

 

Blumenthal expects the coalition pressing the case to

grow considerably as the lawsuit progresses; some AGs

hesitated to get involved during an election year. " We

considered waiting until after November to try and

bring in more bipartisan support, but decided that

others can always join in, " he said. " We hope and

expect they will. "

 

As of now, any way you slice it, victory is hardly a

sure bet. The unusual application of public-nuisance

provisions could be deemed a stretch, and the

resources necessary to reach a successful outcome

could dry up along the way if the coalition doesn't

grow as expected.

 

But even a failed case could bring about

paradigm-shifting results. Given that this is the

first lawsuit over the issue of global warming that

goes after individual companies, it sends a clarion

call to industry to wake up and smell the massive

economic liabilities of global warming.

 

" There is already rising concern among shareholders

about the impact [of global warming] on the value of

their investments. If the companies react too slowly

to global warming, they could get slammed with hefty

fines, either by strict new regulations or by

liabilities that come through litigation, " said David

Doniger, policy director of the Climate Center at the

Natural Resources Defense Council.

 

This lawsuit makes the prospect of economic

liabilities all the more immediate, and that could

provoke companies' shareholders to put increasing

pressure on top management to devise strategies to

mitigate their impact on the climate.

 

" If a company came to the table and said, 'We are

committed to reducing our emissions by this amount and

date,' we will be happy to negotiate and carve them

out of the lawsuit, " said Enck. " We'd be thrilled if

they decided for themselves that it's time to take

initiative. "

 

Blumenthal compares this litigation to the famous

tobacco lawsuits pioneered by a similar small group of

attorneys general in the mid-to-late 1990s, which

ultimately garnered widespread support from other AGs

and led to the five largest tobacco companies settling

with all 50 states – fessing up to their substantial

public-health impact and paying billions of dollars in

penalties.

 

" Think of this as the tobacco scenario, without the

monetary penalties, " Blumenthal said. " Here we don't

want money. All we're asking is to curb the

pollution. "

 

But it's only a matter of time before lawsuits will

start going after serious monetary penalties, some

analysts predict. Increasing asthma and heat-related

illnesses, eroding shorelines, drought, floods,

thawing permafrost, and loss of forests all have real

economic impacts. " The costs of global warming will be

deeper and higher the longer we wait to take action, "

said Blumenthal. " In that sense you could say we're

doing them a favor, taking action to spare them

[ever-increasing] degrees of liability down the line. "

 

The hope, too, is that as a result of this case, the

defendant companies – which have put considerable

resources into lobbying against greenhouse-gas

regulations – will realize that, ultimately,

regulations are a far better prospect for their bottom

line than remaining vulnerable to liability suits.

 

" This lawsuit would force them to clean up their act

while their competitors go scot-free, " said Frank

O'Donnell, director of Clean Air Trust . " Mandatory

CO2 regulations are ultimately a much better option

for them because everyone would be required to comply,

not just the five biggest companies. "

 

In the long run, a consistent set of federal

regulations would ensure a stable, level playing field

for utilities, sheltering them from the volatility of

public opinion and continuous litigation. If the

states' lawsuit prompts companies to reevaluate their

unstinting, well-funded opposition to emission

regulations, it would be a historic case indeed,

regardless of the verdict.

© 2004 Independent Media Institute. All rights

reserved.

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