California sues utilities over damages from global warming

Attorney General Lockyer Files lawsuit to reduce global warming emissions from five largest polluters. California joins seven other states, New York City in groundbreaking action

July 21, 2004

(LOS ANGELES) – Attorney General Bill Lockyer today filed a groundbreaking lawsuit against five major utilities, alleging global warming constitutes a public nuisance that threatens California with widespread harm, that the defendants have contributed to the nuisance as the nation’s largest emitters of carbon dioxide, and seeking reductions in the companies’ global warming pollution.

“This lawsuit opens a new legal frontier in the fight against global warming,” said Lockyer. “Global warming poses a serious threat to our environment, our natural resources, our public health and safety, and our economy. A head-in-the-sand response is not an option. For the sake of our people and their future, we must act now. Requiring these major polluters to do their part is crucial to successfully fighting the threat.”

The lawsuit was filed jointly by Lockyer, and Attorneys General Richard Blumenthal of Connecticut, Tom Miller of Iowa, Peter C. Harvey of New Jersey, Eliot Spitzer of New York, Patrick C. Lynch of Rhode Island, William H. Sorrell of Vermont and Peg Lautenschlager of Wisconsin. New York City also joined the action, filed in U.S. District Court for the Southern District of New York.

The utilities named in the complaint together own approximately 174 power plants. The companies include: American Electric Power Company, Inc. (AEP); AEP Service Corporation (wholly-owned AEP subsidiary); Southern Company; Xcel Energy; Cinergy Corporation; and Tennessee Valley Authority (TVA).
Combined, the defendants pollute the air annually with about 652 million tons of carbon dioxide, a leading cause of global warming. That is more than the total emitted by one-and-one-half Californias, and 358 percent more than the total produced by all the motor vehicle gas combustion in California.

Brought under the federal common law of public nuisance, the lawsuit does not seek damages or other monetary remedies. Instead, it asks the court to order the defendants to abate their contribution to the public nuisance of global warming by reducing their carbon dioxide emissions.

The lawsuit marks the first use of public nuisance law to fight global warming and the first time government officials have sued private companies to reduce carbon dioxide emissions. The unprecedented legal action has deep roots in U.S. Supreme Court rulings that have long recognized public nuisance law allows states to seek remedies for harm caused by pollution generated in other states.

“There is a clear scientific consensus that global warming has begun, is altering the natural world, and that global warming will accelerate in this century unless action is taken to reduce emissions of carbon dioxide,” the lawsuit states. “This complaint seeks a court order requiring defendants to reduce their emissions of carbon dioxide, thereby abating their contribution to global warming, a public nuisance.”

Left unchecked, global warming will cause serious injuries to the states, the complaint alleges. It adds the injuries “are more than a collection of disparate harms. Together, they constitute a threat of fundamental transformation.” Unless carbon dioxide emissions are reduced, the complaint alleges, the states and their residents will suffer widespread damage to public health, coastal resources, forests, wildlife, water supplies, property, infrastructure and key economic sectors.

In California, the complaint alleges, global warming could: cause heat-related deaths to double in Los Angeles, with the poor and elderly at most risk; worsen smog and, as a result, increase the incidence of asthma and other respiratory diseases; produce rising sea levels, and inundate low-lying property and damage infrastructure along the state’s 1,100-mile coastline; cause San Francisco to suffer a 100-year storm every 10 years; cause billions of dollars of property damage due to increased flooding; and threaten to inundate tidal marshes in the San Francisco Bay estuary, the largest on the West Coast.

Additionally, according to the complaint, global warming could: contaminate the water supply for 20 million Californians by increasing salinity in the San Francisco Bay and San Joaquin Delta; substantially reduce the Sierra snow pack, and cause resulting water shortages that would harm residents, hurt agriculture, disrupt other businesses and cut the source of hydroelectric power; and significantly increase the damage caused by wildfires.

Carbon dioxide emissions must be reduced to effectively fight the danger posed by global warming, according to the complaint. “The risks of injury to the plaintiffs and their citizens and residents from global warming increase with the speed and magnitude of global warming,” the complaint states. “The speed and magnitude of global warming is primarily dependent, in turn, upon the level of carbon dioxide emissions.”

As the nation’s five largest emitters of carbon dioxide, the complaint alleges, the defendants account for 24 percent of such emissions from the electric power industry. Additionally, they produce 10 percent of the country’s total carbon dioxide emissions, according to the complaint. Specifically, AEP and AEP Service emit 226 million tons of carbon dioxide annually, Southern 171 million tons, TVA 110 million tons, Xcel 75 million tons and Cinergy 70 million tons.

Lockyer and his fellow Attorneys General stressed their objective is to have the companies do their fair share to help reduce global warming. Further, the Attorneys General contend the defendants, by using available means and technologies, can lower their carbon dioxide emissions at relatively little cost.

“Defendants have available to them practical, feasible and economically viable options for reducing carbon dioxide emissions without significantly increasing the cost of electricity to their customers,” the complaint states. The options, according to the complaint, include: switching fuels, improving efficiency, increasing generation from non-carbon sources such as wind and solar, and better managing demand, among other measures.

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IJHC - WHR Observations

This is a revolutionary, groundbreaking lawsuit that begins to put the responsibilities for global warming where they belong - with the polluters who emit carbon dioxide and other gasses that contribute to this problem.

In a more general way, this is also important in setting the precedent for charging polluters of all varieties for cleaning up their mess.

The better way, of course, is to prevent the pollution in the first place. This applies to manufacturing, as well, where planning for recycling in the manufacture of products reduces the proportion of unusable parts at the end of a product's life.  

See excellent discussions of these problems, with suggestions for sustainable solutions in

Paul Hawken. The Ecology of Commerce: A Declaration of Sustainability, NY: HarperCollins 1993.

Book review:

Our planet is threatened on the one side by pressures of overpopulation and on the other side by pressures of nearly exhausted natural resources and pollution that are threatening to make our world uninhabitable. Paul Hawken does a masterful job of explaining the problems we face and suggesting creative solutions to these problems.

Hawken points out that our pursuit of material gain has grown to be such an accepted goal and one that has been so successful for the industrial nations of the world, that it is difficult for most people to realize that the western standard of living cannot be sustained much longer. Writing in 1993, he observes that in North America we have used up 97 percent of the original forests and are consuming more wood and wood products than we can produce domestically. Our farmers and ranchers pump out an excess of 20 billion gallons of water daily from underground reservoirs than can be replaced through rainfall.
Whatever possibilities business once represented, whatever dreams and glories corporate success once offered, the time has come to acknowledge that business as we know it is over. Over because it failed in one critical and thoughtless way: It did not honor the myriad forms of life that secure and connect its own breath and skin and heart to the breath and skin and heart of our earth. (p. 6)
Limits of sustainability have been reached and in most of the world have been exceeded…
    (See more in IJHC January, 2006  Volume 6, Number 1)

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