In a move that could have far-reaching effects on US emissions law, five electricity generators have filed motions to dismiss CO2 lawsuits brought in July 2004 by a group of state attorneys general and others.
The motions were filed by AEP, Cinergy, Xcel, Southern Company and Tennessee Valley Authority in the US District Court for the Southern District of New York. They cite a number of reasons to dismiss the complaints, primarily that ‘separation of powers’ principles prevent the creation of federal common law to address climate change. States represented by the plaintiffs collectively constitute nearly a sixth of the Senate and nearly a third of the House. The motion says that Congress and three separate administrations have repeatedly chosen to address the issue of global climate change by collecting data and analysing the problem, rather than by authorising regulation. The motion claims, therefore, that any authority that federal courts might have had in this matter using federal common law has been displaced.
The motion also claims that the plaintiffs lack standing to seek redress for global warming. It claims that the complaint alleges future harms, none of which is sufficiently imminent to create a “case or controversy” under Article III of the US Constitution. The motion states that the plaintiffs cannot show that the five utilities singled out in the litigation are the cause of the alleged future harms, or that limiting their emissions would be an effective remedy.
Michael Morris, chairman and CEO of AEP, said: “Filing lawsuits is not a constructive way to deal with the issue of climate change. Climate change is a global issue that cannot effectively be addressed by any individual company, industry sector or country … it requires co-ordinated and meaningful international action that includes developing nations, not a lawsuit against five companies that generate electricity. Including AEP in this kind of action is counterproductive. AEP is an industry leader in taking action to address climate change. As the only US utility among the founding members of the Chicago Climate Exchange, we have committed to cap and reduce our CO2 emissions by a cumulative 10% by 2006. We are investing heavily in carbon sequestration research and offset projects.
“We believe that the plaintiffs would be hard pressed to find many companies in any industry sector … as progressive as AEP.” AEP owns over 36000 MWe of generating capacity in the USA and is the nation’s largest electricity generator and one of its largest electricity utilities.
