Public Nuisance No. 1

It may have sounded like the understatement of the year when a lawsuit was filed last week against five major U.S. energy companies, alleged to be among the biggest global-warming culprits in the nation, on the legal grounds that they're causing a "public nuisance."

In reality it may have been one of the gutsiest legal maneuvers the U.S. has ever seen on climate change – and some observers say it could have the strange side effect of encouraging energy companies to ask the feds for mandatory emissions caps.

Last Wednesday, the chief lawyer for New York City and attorneys general of eight states, including New York, California, Iowa, and Wisconsin, sued industry top dogs – Cinergy Corp., Southern Company, Xcel Energy, American Electric Power Company and the Tennessee Valley Authority – for coughing up a whopping 10 percent of America's carbon-dioxide emissions.

States have in the past filed suit against the U.S. EPA for failing to take action on global warming and CO2 emissions, but this time the attorneys general stuck it directly to the polluters.

"We're the first to agree that federal action to reduce carbon emissions is in order, but that's clearly not happening, and meanwhile our states are being damaged," said Judith Enck, policy advisor to New York Attorney General Eliot Spitzer (D), who is spearheading the lawsuit effort. "We can't just sit idly by."

Spitzer and a handful of other AGs, including Connecticut's Richard Blumenthal (D) and California's Bill Lockyer (D), found legal justification for the lawsuit in a series of centuries-old "public nuisance" prohibitions that were adapted from English common law to protect the health of the commons.

The AGs are demanding no financial penalties for the climate damage done so far, but are asking that the energy companies take immediate action to begin reducing their CO2 emissions 3 percent per year for the next 10 years.

"The lawsuit itself is a huge, historic first step toward holding companies accountable for their contributions to climate change," Blumenthal said. "Moreover, the [rate of reduction] we're asking for is sensible, reasonable, achievable, and could be done at little cost to ratepayers."

Not surprisingly, the defendants are scoffing at the suit. "We provide energy to customers in 11 states – that is not a nuisance at all. I'm offended by that," said Wayne Brunetti , CEO of Xcel Energy, during a forum on July 22 sponsored by the Progress and Freedom Foundation. "When I see [the lawsuit], I'm going to find it replete with mis-facts."

"This brings new meaning to the term 'nuisance lawsuit,'" said Scott Segal, a partner at the law firm Bracewell and Patterson , which represents industry interests. "They're trying to apply some 1,000-year-old legal doctrine that was developed to deal with trivial nuisances along the lines of a neighbor throwing trash in the yard next door to this sprawling, ambiguous, and scientifically questionable notion of climate change. There's not a chance it will hold up in court."

But according to Blumenthal, the public-nuisance claim is solid: "It's not arcane or anachronistic; 'nuisance' law is still routinely used in modern court decisions." Common law develops over time through court decisions that establish principles – in this case, principles along the lines of the do-unto-others rule: "It says everyone shares a duty to avoid harming people when there are achievable ways to avoid that harm," said Blumenthal.

The decision to go forward with this suit was made after three years of research, investigations, and legal theorizing. "We have already devoted a great deal of time and a lot of resources to this effort," Blumenthal said. "We have not undertaken this action lightly, and we are fully prepared to accept the mammoth effort it would take going forward to bring this suit to trial."