A.G. Schneiderman Urges U.S. Supreme Court To Uphold States’ Right To Sue Carbon Dioxide Polluters

WASHINGTON – In a landmark legal challenge, Attorney General Eric T. Schneiderman filed a brief urging the U.S. Supreme Court to uphold the right of states to sue five polluting power companies to force them to reduce carbon dioxide emissions, the primary cause of global warming. Leading a coalition on behalf of New York, California, Connecticut, Iowa, Rhode Island, Vermont, and the City of New York, Attorney General Schneiderman argued that the power companies are causing a “public nuisance” by releasing greenhouse gases into the air, and can therefore be held accountable in court. The case is American Electric Power Co., Inc. v. Connecticut.

“Climate change threatens our economy, our health and our natural resources. This lawsuit protects New Yorkers and our environment from the serious harms caused by unrestrained greenhouse gas pollution,” said Attorney General Schneiderman. “As some of the biggest global warming polluters in the country, these five companies produce 10 percent of the nation’s carbon dioxide emissions. To protect our future, we must have the right to hold these polluters accountable in a court of law.”

In 2004, New York—along with several other states, New York City, and environmental groups—sued five large electric power companies in federal court in New York to force them to reduce the carbon dioxide emissions from their fossil fuel burning power plants. These corporations – American Electric Power Co., Cinergy Corp., Southern Co., the Tennessee Valley Authority and Xcel Energy Inc. – are the largest emitters of greenhouse gases in the country, accounting for approximately 10 percent of all domestic human-generated carbon dioxide. Together, they own or operate 174 fossil fuel burning power plants in 20 states that emit about 650 million tons of carbon dioxide each year – almost a quarter of the U.S. utility industry’s annual carbon dioxide emissions.

The federal Environmental Protection Agency does not currently regulate these emissions, and the power companies have, by and large, failed to voluntarily take practical, cost-effective steps that would allow them to generate electricity with lower emissions.

In 2009, the U.S. Court of Appeals for the Second Circuit upheld the states’ right to bring this lawsuit. The power companies appealed the case to the Supreme Court, which will hear arguments on April 19, and is expected to decide the case by July. Attorney General Schneiderman is vigorously defending the appeals court’s ruling to protect New Yorkers from the harms caused by climate change. These harms include causing asthma and other respiratory diseases, eroding beaches and inundating properties on Long Island, increasing heat-related deaths in New York City, lowering water levels in the Great Lakes that harm the shipping industry, and killing off hardwood forests in the Adirondacks.

This is the first case where 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. It was filed 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 defendant companies’ emissions contribute to a harm borne by all members of the public, and the states and City of New York have the right to protect their residents and properties from such widespread harm.

The brief, filed on March 11, is the most recent action Attorney General Schneiderman has taken to protect New Yorkers’ health, safety and economic security from environmental pollution. In January, Attorney General Schneiderman filed a lawsuit against a Pennsylvania-based power plant for violating the Clean Air Act and threatening New York’s air quality. Schneiderman also led a coalition of state attorneys general in calling on the U.S. House of Representatives to keep in place critical environmental regulations protecting New Yorkers from mercury and other toxic substances hazardous to human health and the environment. 

A separate brief was filed by three land trusts: Open Space Institute, Inc., Open Space Conservancy, Inc., and Audubon Society of New Hampshire.

The case is being handled in the Supreme Court by Solicitor General Barbara Underwood, Deputy Solicitor General Benjamin Gutman, Assistant Solicitor General Monica Wagner, and Assistant Attorneys General Michael Myers, Morgan Costello, and Robert Rosenthal.