Richard Blumenthal, Connecticut's attorney general, seems fairly certain that a 2nd Circuit US Court of Appeals ruling Monday is a big boost for those who want federal controls on coal-fired power plants' carbon dioxide emissions. With the carbon cap-and-trade bill facing formidable opposition in the Senate, proponents might well embrace anything that could nudge antagonists in the measure's direction.
"My hope is that the court case will provide a powerful incentive for polluters to be reasonable and come to the table and seek affordable and reasonable reductions," he told our colleague Brian Hansen. No matter what, though, Blumenthal said, "the courts are ultimately going to order the companies to stop this harm to our states."
The appeals court ruling rejected a federal district court decision that had turned down the effort by environmental groups, Connecticut and others to convict American Electric Power and other big coal-burning utilities of creating a public nuisance with their emissions. Asthma, heat-related illnesses and other harms are a result, was the argument by Connecticut, New York, California and others. Even Iowa.
The US District Court for the Southern District of New York had said it was not the courts' place to decide about ordering CO2 emission cuts; it was up to Congress or the White House. The appeals court disagreed.
Blumenthal said yesterday that the group isn't looking for money and it isn't trying to shut down the plants. "We're trying to compel measures that will stem global warming regardless of what happens" in Congress," he said. He wouldn't say how much CO2 reduction he would ask for, though earlier in the case he suggested a reduction of 30% over 10 years, at 3% a year. "We would certainly be reasonable," he said Tuesday.
Utility attorneys would not say whether the companies would appeal, but spokeswomen for AEP and Southern Company did reiterate a number of utilities' view that legislation is the better way to deal with greenhouse gases. The courts are not a good way, and the Environmental Protection Agency is not a good way. Congress, where allowances can be allocated, emission offset programs structured, timelines negotiated -- this is where companies can get the best deal. (The spokeswomen did not say it that way.)
Xcel Energy's spokeswoman reminded the Blumenthal contingent, though, that the court didn't say award Connecticut and the others anything of substance; it said only that "the plaintiffs can pursue their claims."
How long that will take is anyone's guess. But it also appears to be anyone's guess whether the Senate will vote on a cap-and-trade bill, this year or next year. There's international pressure, but are US lawmakers in a mood to bow to that? EPA is pursuing its carbon control rulemaking, and now a federal court has been told to hear a case that seeks utility carbon reductions. If enough utilities really do want Congress to pass something, can their influence get it done? Or is the bigger-picture opposition just too much?
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