NEW YORK -- Efforts to force a stronger U.S. global warming policy through the courtroom came under sharp scrutiny yesterday as eight states, New York City and conservation groups pressed for reduced greenhouse gas emissions from the nation's five largest electric utilities.
A three-judge panel of the 2nd U.S. Circuit Court of Appeals pressed plaintiffs over why their case was necessary when other avenues exist for addressing global warming -- from Capitol Hill to state courts.
"My basic question is should we be invoking this doctrine in this very unusual case when there are many other remedies available?" asked Judge Sonia Sotomayor, the lone Democratic appointee on the 2nd Circuit's three-judge panel.
Connecticut Attorney General Richard Blumenthal (D) replied that the utilities' emissions violate federal common law by harming residents in multiple states. The utilities' emissions are creating a public nuisance and must be reduced to counteract a variety of global warming effects, including California's diminished snow pack and more intense heat waves.
Addressing Sotomayor's question, Blumenthal said his case is not unusual compared with other seminal common law challenges upheld by the Supreme Court, including suits over Illinois sewer water running into Lake Michigan and air pollution from two Tennessee smelters.
"We're dealing with a developing area of science where federal common law provides a remedy under the doctrines that exist," Blumenthal said.
Plaintiffs singled out the five companies and their subsidiaries for litigation almost two years ago because they are the largest emitters of carbon dioxide from the power sector in the United States. The companies -- -- American Electric Power, Cinergy, Southern Co., Xcel Energy Inc., and the Tennessee Valley Authority -- produce a combined 650 million metric tons of carbon dioxide a year. That's about 25 percent of the 2.6 billion tons of CO2 created annually by the electric utility industry.
Early motions in the case revealed the plaintiffs want a court injunction ordering the power plants to reduce their emissions by about 3 percent per year over the next decade.
In an interview after yesterday's oral arguments, Blumenthal said he was optimistic his side would prevail but was also ready to take the case up to the Supreme Court. "I'm prepared to fight all the way," he said. "If we lose here, we go to the supremes."
The electric utilities' defense covered some of the same ground offered successfully last summer before a federal district court, which dismissed the case on the grounds it raised political questions better left to the other two government branches. Both current and former sessions of Congress and presidents have not adopted such an aggressive climate change policy, argued Washington-based industry attorney Joseph Guerra.
Guerra also insisted federal common law has not been applied to an issue of such sweeping scale. Of the Supreme Court precedents Blumenthal cited, Guerra replied, "None of those cases could have possibly affected the entire U.S. economy."
Pushing another line of the industry's defense, Guerra cautioned the litigation would be a precursor to more global-warming nuisance claims -- with no end in sight as plaintiffs tick through other sources of greenhouse gas emissions.
But Sotomayor, who asked the bulk of the questions during the hearing, took issue with the line of industry defense. "That's the nature of every tort action," she told the utility attorney.
Sotomayor also said she had a problem with dismissing the case just because potential remedies were so large. And she said she was concerned that to adopt industry's entire argument, it could pre-empt states from issuing their own regulations to address global warming -- such as renewable energy standards or the New York-led regional cap-and-trade program for greenhouse gas emissions.
She then pressed the utility attorney for his view on the narrowest ruling the court could give the power companies. Guerra replied the lower court's decision could be upheld so that the matter was left for Capitol Hill.
"Congress is the branch of government that has to address this problem," Guerra said.
TVA's attorney, Edwin Small, told the court the quasi-federal agency did not belong in the case because of its unique status that protects it from such litigation.
'Killing the world'
Judges Joseph McLaughlin and Peter Hall, appointed by former President George H.W. Bush and the current President Bush, respectively, also presided. Both asked detailed questions during the hearing but did not engage with the lawyers as much as Sotomayor.
During one of the session's more candid moments, Sotomayor said she had personal concerns about global warming and she indicated regulations may be needed soon to counteract rising greenhouse gas concentrations. "I have absolutely no idea about the science of global warming," she said. "But if the science is right, we have relegated ourselves to killing the world in the foreseeable future. Not in centuries to come but in the very near future."
Lisa Jaeger, a utility lobbyist and former U.S. EPA general counsel, said after the hearing she expected a narrow decision dismissing the case. "The court was looking for a way to do it," she said of the questions asked during the session.
Of Sotomayor's statement about the threats of global warming, Jaeger replied, "Like most people, she recognizes the uncertainties of the issue. At the same time, she recognizes the uncertainties of the judicial system to deal with it."
David Doniger, policy director of the Natural Resources Defense Council's climate center, said it was difficult to predict an outcome based on questions asked during the arguments. But he took note of industry's defense that Congress is the proper venue for resolving global warming policy. "I'd like to hear them crying out for a legislative solution," he said.
Attorneys involved in the case said they expect the court could take several months before issuing its decision.
The eight states suing in the case are California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin. Utilities have support from industry groups such as the U.S. Chamber of Commerce, Edison Electric Institute, former Supreme Court nominee Robert Bork and Senate Environment and Public Works Committee Chairman James Inhofe (R-Okla.).
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