Climate Change:

Attorney Matthew Pawa targets top U.S. utilities with global warming lawsuit

Last fall, a federal judge dismissed a lawsuit against five major electric utilities which sought reductions in the companies' greenhouse gas emissions. Now the attorneys behind that lawsuit -- representing eight states and several environmental groups -- are pushing to have the case reinstated. During today's OnPoint, Matthew Pawa, an attorney representing the Open Space Institute in the case, explains why federal judges need to act ahead of Congress and the White House on global warming. He discusses the track record of other climate change cases moving in federal court, and why utilities need to move faster with carbon dioxide reductions.

Transcript

Darren Samuelsohn: Welcome to OnPoint. I'm Darren Samuelsohn. Joining us today in the E&ETV studios in Washington to talk global warming litigation is Matt Pawa, an attorney representing the Open Space Institute and the Audubon Society of New Hampshire. Mr. Pawa thanks for coming on the show.

Matthew Pawa: Thanks for having me.

Darren Samuelsohn: Now this lawsuit is against five of the nation's largest electric utilities. Explain the premise of this lawsuit.

Matthew Pawa: This lawsuit is grounded in the law of public uses, which is judge made law. It's the law that has always applied in environmental cases stretching back over 100 years. And the plaintiffs in this case, the land trust that I represent and the eight states, are seeking an injunction, a court order that would require these companies to reduce their emissions over a period of time. We're not seeking money damages. We're seeking a court order.

Darren Samuelsohn: And these five utilities are?

Matthew Pawa: American Electric Power, Southern Company, TVA, Xcel and Cinergy.

Darren Samuelsohn: And how'd you pick them?

Matthew Pawa: They are the five largest emitters of greenhouse gases in the nation. Together these five companies emit 650 million tons of carbon dioxide every year. Five companies may emit one quarter of all U.S. emissions from the power sector and 10 percent of all anthropogenic greenhouse gases in the form of carbon dioxide from United States.

Darren Samuelsohn: And now this case was brought in the Federal District Court and last summer it was tossed out, dismissed early on, before we could even really get to the merits of it. You've appealed it up now to the 2nd Circuit in New York City. Why should this case be reinstated?

Matthew Pawa: This case should be reinstated so that we could put on our approved about what's happening on global warming. Just over the last several months scientists have found that we may be approaching an irreversible tipping point on global warming. And all the emissions that we're emitting now are bringing us toward that tipping point. We want to get to the point where we can put on our evidence. We think that this case should be allowed to go forward so that we can find out what the power companies knew about global warming and when they knew it. And put that evidence, including the evidence of harms, the very real harms from global warming, in front of the court so that it can make a decision on the merits.

Darren Samuelsohn: Did you feel like the District Court actually got to look at the merits at all? Or that was pretty much off the table, right?

Matthew Pawa: No, we haven't addressed the merits at all in this case. The court dismissed it on a ground that the defendants actually did not invoke. The power companies did not invoke the political question doctrine and the district court dismissed it on that basis. And we are respectfully disagreeing and we've taken an appeal of that.

Darren Samuelsohn: And the political question doctrine, that basically says that Congress or the president of United States is the person that should be setting these policies?

Matthew Pawa: The political question doctrine would require establishing effectively exclusive control over this subject matter, in which the courts couldn't touch it at all. And we're not aware of any pollution case where the courts have ever said that this is a political question that the courts can't touch at all. Instead, what has always happened in pollution cases, regardless of the form of pollution, is that all three branches of government may be involved in it to some extent. But unless the Constitution gives exclusive control over subject matter to one of the political branches, it's fair game for judges to impose liability on individual polluters. That's the position we're taking.

Darren Samuelsohn: And you've said that there is Supreme Court precedent backing you up. Can you explain what that is?

Matthew Pawa: Sure. We have Supreme Court precedent that directly holds that political question does not encompass interstate pollution. Carbon dioxide, which causes global warming, is an interstate pollutant. And in cases like Wyandotte, the Supreme Court has said that the interstate pollution cases are cognizable. They're cases that the courts are free to adjudicate and they're not political questions. And we think that cases like Wyandotte are going to be persuasive on appeal and we'll make our arguments on the basis of that case law.

Darren Samuelsohn: Do you have to show that there is an alleged harm here from the power companies?

Matthew Pawa: In the case we ultimately do have to show that there's an alleged harm. And we have to show that the defendants, the power companies, contribute to the harm. We don't have to show that they're the sole or exclusive or even the majority contributors. What we have to show is that they contribute to the harm. And in all pollution cases that's always the law. That you have to show that the one you're suing contributes to the problem, not that they're pollution alone would cause the problem, not that they're the only ones, but that they contribute. And that's clearly the case here.

Darren Samuelsohn: And what do you show in the United States or in the world to show that they're contributing to global warming?

Matthew Pawa: Well they have to report their carbon dioxide emissions to EPA every year. They don't have to control them under any federal statute. That's why we're invoking judge made law, common law of public nuisance. But to show that they emit carbon dioxide is nothing more than to produce the reports that they submit themselves to EPA every year showing how much CO2 they emit. And it's a well-known figure.

Darren Samuelsohn: What you want the court specifically to order these power companies to do?

Matthew Pawa: In one of the complaints that was filed we asked for an order as an example to require them to reduce their emissions by about 3 percent a year for 10 years. That would be a 30 percent cut in CO2 emissions and that would be a good step towards what we need to do to solve the global warming problem. The scientists are saying we need cuts on the order of 60 or 70 percent in CO2 emissions in order to stabilize the climate of the planet. And getting halfway there in 10 years, a 30 percent cut, would be a good first step.

Darren Samuelsohn: On this point though, can a judge be an expert to really assess what you're saying, 3 percent and a judge can make that kind of a call? That that would have an effect on global warming?

Matthew Pawa: Judges make calls about scientific evidence all the time. In every case involving the environment there's technical evidence and a judge has to make a judgment about what's enough and how much of a reduction is enough. And the law is quite clear that regardless of whether or not removing your pollution solves the entire problem, courts are fully empowered to require each contributor to reduce their amount. That's fair and that's what courts have done in the past. That's what we're asking for here.

Darren Samuelsohn: Courts, on the issue of global warming, so far haven't really shown an interest in taking on this question with the federal district court decision last summer. Also in the case with Massachusetts trying to prove that carbon dioxide is a pollutant and that the EPA made a mistake when they said that it wasn't. That's a petition now before the Supreme Court. With the courts not showing an interest at this point, why not try going a different route? Why not try working with the utility companies? A couple of utility companies, including, I think, two that are involved in this case, AEP and Cinergy, have actually come out and they said that global warming is real. They've said that we need to cap carbon dioxide emissions or eventually that's going to happen. And they're planning ahead in terms of building power plants in the future that have carbon sequestration technologies available.

Matthew Pawa: These power companies' emissions are increasing every year. And they may say that they're cutting their emissions, but the fact is that they're increasing every year. And the power companies' emissions are actually increasing faster than the emissions from the economy as a whole. And so we could talk to the power companies for a long time while the planet heats up or we could take action. We decided to take action.

Darren Samuelsohn: And is potentially could set US policy on global warming if you were successful. Wouldn't it pre-empt, I guess I'm coming back to the pre-emption question, wouldn't it set U.S. foreign policy or force the president of the United States to enter into some sort of climate negotiations?

Matthew Pawa: Oh absolutely not. This is about imposing liability on particular polluters for their contribution to harms, for individual plaintiffs, for the states, for New York City, for the land trust that I represent. It's not about trying to set foreign policy. The political branches are always free to pursue their own solutions in the manner they see fit and by their own lights. And by the same time, the judicial branch needs to resolve controversies between individual litigants. And that's what we're asking for.

Darren Samuelsohn: Are you concerned, if you got a case in your favor or a decision in your favor, you might get from the conservatives out there and alarm of judicial activism I guess from the conservatives out there in Congress?

Matthew Pawa: Well, I think we probably already have heard that. There have been amicus case briefs submitted in this case by Robert Bork and John Yoo and by others who argue that it would be something akin to judicial activism. I don't know if they used that term. But the fact is that when someone is being harmed by global warming as we allege, you need a neutral arbiter, like a judge, a court, to resolve that controversy. And we don't think it's judicial activism for a judge to simply resolve a case before it, hear the evidence and make a decision on the evidence.

Darren Samuelsohn: And Congress, of course, debating this issue as well right now. We don't think that we're going to see a bill signed into law by President Bush here in the next year. It's possible, people are saying, that in 2007 the Senate might act and maybe force the House to move on climate change. How would your lawsuit, if Congress were to act would they cancel each other out or what would happen there?

Matthew Pawa: Well, it would really depend on what Congress did. And there have been a lot of hypotheticals for a long time about what Congress or the executive branch may or may not do, might do. And we intend to just go forward and make our case on the evidence. And if future events happen that have an impact on the case from other branches of government, we'll take a look at it when it happens. I'm sure that the defendants will run to the court and tell the court when other branches of government have acted and we'll sort it out at that time.

Darren Samuelsohn: And one of the defenses in the industry reply briefs that they've said is that Congress has addressed the issue of climate change and they've addressed it consistently. Going back to, I think, 1990 and before, including the energy policy act that was signed into law last year. Isn't that though the will of Congress and the extent, the furthest that they're ready to go?

Matthew Pawa: Congress has passed laws requiring the study of global warming. It's required research into the phenomenon of global warming and the technologies that could be used to solve it. And it's authorized international discussions on the topic. Congress has not occupied the field. Congress has not said there can be no lawsuits. This case, in some respects, is no different than other cases dealing with pollution where there's a lot of activity by the political branches, but the activity never gets to the point where it really addresses the problem. The key thing here is that neither Congress, nor anyone else, has required these defendants, these utilities, to reduce their emissions. And so that aspect of the case has not ever been addressed by the political branches.

Darren Samuelsohn: And take us through now, we're going to see arguments possibly this summer in the case?

Matthew Pawa: We're expecting to have oral arguments in June in New York City and then a decision could be expected within a few months I would suppose of that.

Darren Samuelsohn: If you're on the losing end do you take this thing all the way up to the Supreme Court?

Matthew Pawa: We'll cross that bridge when we come to it.

Darren Samuelsohn: Ok. Well thanks so much for coming on the program.

Matthew Pawa: Thank you Darren.

Darren Samuelsohn: Until next time, this is Darren Samuelsohn for another edition of OnPoint. Thanks for watching.

[End of Audio]

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