Second Circuit ruling that states can sue power companies over emissions will cause explosion of nuisance suits

Maureen Martin [Senior Fellow for Legal Affairs, The Heartland Institute]: "Former Vice President Al Gore and White House climate change czar Carol Browner, commenting on the Second Circuit Court of Appeals decision allowing a federal nuisance case to go ahead against six major utilities for emitting carbon dioxide, said such nuisance cases can be stopped in the courts by federal regulation of greenhouse gases. They are wrong.

The Tennessee Valley Authority (TVA), one of the defendants in the Second Circuit case, knows this very well. The TVA was sued in a federal district court in North Carolina for creating a public nuisance by emitting pollutants such as ozone that are currently regulated under the federal Clean Air Act. Under this act, USEPA sets health-based limits on such emissions but doesn't totally prohibit them. TVA was in full compliance with these federal limits. Earlier this year, the district court judge nevertheless ordered the TVA to install about a billion dollars worth of air pollution controls on its coal-fired electrical power plant to limit emissions even though they are lawful under federal law. The case is now on appeal. But federal regulation did nothing to stop that lawsuit; federal climate change regulation will not stop other lawsuits like the Second Circuit one.

Such cases are beginning to proliferate, as the plaintiffs' trial bar senses blood in the water in the form of the billion dollar judgment in the TVA case. But courts are a poor forum in which to litigate climate change. The ultimate issue in such cases is whether man-made emissions of carbon dioxide and other greenhouse gases cause global warming. The science is enormously complicated, as demonstrated in a recent publication by The Heartland Institute, Climate Change Reconsidered, collecting thousands of peer-reviewed scientific studies. A judge or jury is ill-equipped to understand and carefully consider it.

Nevertheless, such cases are now the new "hot" lawsuits, and the Second Circuit case will fuel this trend. Hopefully, the Supreme Court will shut them down."

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