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Wednesday, July 21, 2004

Litigation lunacy
Written by: Beck

Attorneys General from eight different states are suing five of the nation's largest electric utilities over carbon dioxide emissions. This assault on common sense suffers from a whole host of flaws.

First of all, have a look at the litigants: California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin, along with New York City's corporation counsel. The only people on this list who would even have a shred of hope of keeping the lights on during the summer without coal generation are Iowa and Wisconsin. New Jersey could probably pull it off by bringing power from the south, but they would pay a huge premium for it as the power would have to come from Virginia which is already a net power importer.

Next, have a look at who's being sued: American Electric Power Co., Southern Co., Xcel Energy Inc., Cinergy Corp. and the federal Tennessee Valley Authority. Xcel was on the brink of bankruptcy a few years ago--indeed, Xcel unit NRG spent the better part of 2002 and 2003 reorganizing under Chapter 11 protection. TVA is a relic of FDR's administration, and their hands are entirely tied by federal regulations. The other three are some of the largest coal burning utilities in the US, although Cinergy is awash in relatively clean combined cycle natural gas generation for which the state AGs should be happy.

More bizarre, however, is that these utilities for the most part don't serve the states which are filing the lawsuits. TVA serves, surprise, Tennessee. Southern Company is a sprawling utility centered on Georgia. Cinergy serves parts of Ohio, as does AEP--which also supplies power to seven neighboring states, as well as operating generators in parts of the southwest and elsewhere.

Translation: the only reason these law suits exist is to use the courts to create carbon dioxide regulation which the normal process of legislation hasn't seen fit to enact. And no, none of these people has ever heard of checks & balances. These AGs have taken it upon themselves to solve the world's global warming problems, and it's an outrage that such a cabal would attempt something like this. What's more, on the outside chance that they were to succeed, none of the 5 companies named could really afford the massive new expenditures which would be required to bring them within a level of compliance sought by the AGs. Also, the new level of compliance would be such a tiny drop in the bucket of carbon dioxide production that the impact on the environment would be nil.

A press release from the National Center for Public Policy Research takes a swing at the pseudo-science involved and lands a resounding hit:

"Global warming" -- the theory that behavior by human beings is causing the Earth to warm significantly -- is highly contested scientific issue, one on which many climate scientists disagree. Even those scientists who believe human behavior is causing the planet to warm disagree significantly about causes and degree.

Scientists furthermore differ on the impact global warming would have on the Earth. Some expect global warming would cause sea levels to rise. Others believe it could cause sea levels to lower -- as increased amounts of water vapor in the air result in more snow congregating at the still-frozen poles.

Some global warming debaters stress the possibility that global warming could hurt plants, while others note the beneficial effect of increased carbon dioxide levels on plant life (carbon dioxide is, roughly speaking, to plants what oxygen is to human beings).
What's more, they expose the flaw in attempting to use the courts to force policy which elected legislatures have rejected.
Court decisions are blunt instruments and ill-suited for determining policies on such matters as global warming, where opinions are constantly undergoing change as new scientific knowledge is gained. The judicial branch, unlike the legislative, is not designed to accommodate the easy repeal or amendment of flawed policies.

Trials are by nature a debate between two parties -- the plaintiff and the defendant. Legislatures convene hearings, hear from witnesses, review testimony and debate at length, with many voices and perspectives considered. The public, furthermore, is aware of the proceedings of legislatures and is easily able to communicate desires to lawmakers.
One bit of good news: NRO's Jonathan Adler doesn't think this case has a chance of succeeding.
If the draft press release circulating around is accurate, this suit is particularly outrageous. It seeks a court order to require the relevant utilities to reduce their emissions under the federal common law of public nuisance -- an ambitious claim, to say the least. Unless the state AGs have come up with a particularly ingenious legal theory, this suit is nothing more than a publicity stunt. Even if the AGs could win, and managed to shut down the targeted utilities completely, this would not abate the alleged nuisance, as atmospheric concentrations of carbon dioxide and predicted climate change would scarcely be affected at all.
(Hat tip: Protein Wisdom)

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