Fossil fuel plants are the target of a new multi-state lawsuit. Image: FPL Energy (not one of the defendents in this case)

"Our lawsuit simply demands that these five worst polluters feasibly, economically, and flexibly abate their fair share of these greenhouse gas emissions, and employ already available options for doing so."

- Wisconsin Attorney General Peg Lautenschlager said

New York, New York - July 22, 2004 [SolarAccess.com] Lawsuits could be a means to convince major power companies they need to make a real effort toward lowering greenhouse gas emissions. Developing renewable energy projects is chief among the possible remedial actions. The states of California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin, along with the City of New York, filed a lawsuit against the five largest global warming polluters in the United States. It is the first time state and local governments have sued private companies to require reductions in the heat-trapping carbon dioxide emissions that scientists say pose serious threats to our health, economy and environment. The plaintiffs specifically cited increased use of renewable energy as a solution to greenhouse gas emissions.

"There is no dispute that global warming is upon us and that these defendants' carbon dioxide pollution is a major contributor," New York Attorney General Eliot Spitzer said. "Others are taking action to reduce emissions and these companies could also do so by building cleaner energy sources."

Companies sued in this action include: American Electric Power Company; the Southern Company; Tennessee Valley Authority; Xcel Energy Inc.; and Cinergy Corporation. Together, these companies own or operate 174 fossil fuel burning power plants in 20 states, and emit some 650 million tons of carbon dioxide each year. That is almost a quarter of the U.S. utility industry's annual carbon dioxide emissions and about 10 percent of the nation's total. The action calls on the companies to reduce their pollution, but does not seek monetary damages.

The case was filed in New York's federal district court under the federal common law of public nuisance, which provides a right of action to curb air and water pollution emanating from sources in other states. Public nuisance is a well-established legal doctrine that is commonly invoked in environmental cases and forms the basis for much of today's modern environmental law. The plaintiffs said the defendant companies' emissions contribute to a harm borne by all members of the public. The states, as sovereign governments, and the City of New York have the right to protect their residents and properties from such widespread harm.

The plaintiffs said they are bringing suit because global warming is a serious threat to communities and the environment in the states. These impacts will become increasingly severe if emissions are not reduced. Damages from global warming include asthma and other respiratory diseases; increased heatstroke and heat-related mortality; loss of beaches, tidal wetlands, salt marshes, coastal property, fisheries and costly impacts to coastal and urban infrastructure due to rising sea levels; loss of mountain snowpack, a major fresh water source in California; property damage and human safety risks due to drought and floods; loss of Northeast hardwood forests; and widespread harm to wildlife.

Some U.S. utilities have willingly invested in renewable energy projects, but, more often than not, it has taken state mandatory measures for them to commit in any real fashion. Fourteen states across the U.S. now have Renewable Portfolio Standard (RPS) legislation that require major power producers in the state to source a certain, and often very small, percentage of their power from renewable energies such as solar and wind. In nearly every case, RPS legislation has come under direct assault in the law-making process from utilities that do not want to steer away from cheaper, but polluting, sources of energy like coal. This lawsuit could act as another front to push the utilities for increased interest in renewable energy projects.

"Our lawsuit simply demands that these five worst polluters feasibly, economically, and flexibly abate their fair share of these greenhouse gas emissions, and employ already available options for doing so," Wisconsin Attorney General Peg Lautenschlager said. "If others in the industry can already meet these goals, these industry giants should do the same."

A report prepared by the National Academy of Sciences at the request of President Bush in 2001 reaffirmed the widespread consensus that carbon dioxide and other heat-trapping emissions are responsible for the problem. Experts say that if nothing is done to cut emissions, average global temperatures will rise between 3 and 10 degrees Fahrenheit by the end of the century. By comparison, the difference in global average temperature between now and the last ice age was only 7-11 degrees Fahrenheit. The most recent data from the National Oceanic and Atmospheric Administration shows that 2003 tied 2002 as the second hottest year on record, following 1998. The five hottest years in U.S. history have all occurred since 1997, and the 10 hottest since 1990.

Readily available solutions to reduce carbon dioxide pollution include increased efficiency of coal-burning plants; switching from coal to cleaner- burning fuels; greater use of biomass energy derived from plants; investment in energy conservation; and use of clean energy sources like wind and solar power. 'Clean coal' technologies also are emerging that may possibly allow carbon dioxide to be partially removed from coal-fired power plant smokestacks.

Federal studies indicate that electric power producers are the largest global warming polluters, and decreasing their fossil fuel consumption presents the best opportunity for significant and cost- effective reductions of carbon dioxide pollution.

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