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The six largest power companies in the United States make such a significant contribution to global warming that they are a public nuisance, a federal suit charges. If the case gets to trial, it would likely be the first time a court would decide whether carbon dioxide (CO2) is a major cause of the marked increase in planetary temperatures. A judge would also determine what steps, if any, these companies should take to decrease their production of CO2, a greenhouse gas, which is a byproduct of the burning of fossil fuels. A jury would not hear the case because only equitable relief, not damages, is sought. “As far as we know it will be the first time that anyone has gone to court alleging that CO2 causes global warming and that global warming constitutes a nuisance,” said William Brieger, a deputy attorney general in California. Seven other states and New York City are also plaintiffs in the suit, which seeks a cap and then a decade-long gradual reduction of CO2 emissions. State of Connecticut v. American Electric Power Co., No. 04-CV-05669 (S.D.N.Y.). Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin are also plaintiffs. The havoc theory Brought under theories of federal and state common law, and state statutory law, the suit alleges that damages from global warming are already apparent and will wreak havoc in the future if left unchecked. Globally, the 1990s were the warmest decade since atmospheric temperature record keeping began in 1861, according to the suit. The suit notes that Arctic Sea ice is shrinking; Glacier National Park in Montana has lost two-thirds of its glaciers; and coral reefs are dying. Future predictions include massive flooding of coastlines and extinction of some species of flora and fauna. “[The suit is] a joint recognition of a serious harm that’s appropriate for resolution through enforcement,” said Peter Lehner, an assistant attorney general in New York state’s Environmental Protection Bureau. “This is a pollution case and this is an enforcement case.” The lead defendant, American Electric Power (AEP), the largest U.S. power company, agrees with the premise that CO2 contributes to global warming, but asserted that the way to fix it is not a lawsuit. “Filing a lawsuit is not a constructive way to deal with climate change,” asserted Pat Hemlepp, AEP’s director of corporate media relations, who cited a litany of voluntary steps AEP has already taken to make the air cleaner. “It’s a global issue-it’s not an issue that can be addressed by one company, by one industry, or even one country. It requires a global solution that would include developing nations.” But thus far there is neither a global nor federal solution. That is when common law suits are most useful, noted Clifford Rechtschaffen, co-director of the Environmental Law and Justice Clinic at Golden Gate University in San Francisco. Noting that the filing of common law environmental suits receded after a flurry of environmental legislation was passed in the 1960s and 1970s, he asserted that “common law retains its vitality and importance-it’s potentially quite potent in plugging gaps left in the federal and state regulatory structure.” A vacuum was left in U.S. CO2 policy last summer when the U.S. Environmental Protection Agency said it did not have the authority under the Clean Air Act to regulate CO2. That decision is being challenged in a separate suit. Commonwealth of Massachusetts v. EPA, No. 03-1361 (D.C. Cir. 2003). Either the Clean Air Act covers CO2 emissions or the states have a right to bring nuisance claims, Brieger asserted. Iowa Attorney General Tom Miller asserted that global warming has already cost Iowa corn and soybean farmers about $1 billion, and threatens the state’s large elderly population with the same heatstroke-related deaths that plagued a torrid Europe last summer. AEP’s Hemlepp said that switching to less greenhouse gas-producing fossil fuels like natural gas would boost energy prices and drive more manufacturing overseas. That’s always their position, said Miller. “Horrible things are going to happen . . . .Our experts say there would be only a marginal increase in prices. Much of the rest of the world is way ahead of us on this. In the developed world, we’re about the only ones not doing anything about [greenhouse gasses].”

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