September 5, 2010

Kansas joins case to head off federal carbon regulation

Attorney General Steve Six has joined Kansas with 10 other states in an effort to head off federal regulation of greenhouse gases.

Attorney General Steve Six has joined Kansas with 10 other states in an effort to head off federal regulation of greenhouse gases.

They seek to block federal courts from proceeding with a trial that Six says could lead to more restrictions on carbon emissions by utilities and other industries.

Six announced late last week that he has joined the state to a friend-of-the-court brief filed by Indiana in the case Connecticut v. American Electric Power Co.

The brief asks the U.S. Supreme Court to overturn an appellate decision to allow a trial in a lawsuit in which eight states sued six major power producers, alleging that their emissions of carbon dioxide and other gases were a public nuisance.

Carbon emissions have been linked by scientists to global climate change.

In a statement, Six said he decided to add Kansas to the Supreme Court brief because he believes decisions on carbon emissions should be made by legislators.

"Like most Kansans, I am weary of lawsuits which attempt to bypass our legislative process and ask the courts to set public policy," Six said.

He called the appellate court ruling "an intrusion on the policy making authority of the legislative and executive branches."

"The proper place for a debate over greenhouse gas regulation is among policy makers, not in the court system," Six said.

War between states

A federal district court in New York had dismissed the Connecticut case, but the Second District Court of Appeals reinstated it.

The appeals court acknowledged that a broad solution to global warming "arguably falls within the purview of the political branches," in essence, Congress and the White House.

However, the court ruled that wasn't what the plaintiff states were asking for.

"Instead, they seek to limit emissions from six domestic coal-fired electricity plants on the ground that such emissions constitute a public nuisance that they allege has caused, is causing, and will continue to cause them injury," the appellate ruling said.

The court also said the effect of a trial on Connecticut's complaint would

not be as far-reaching as its opponents claim.

"A decision by a single federal court concerning a common law of nuisance cause of action... does not establish a national or international emissions policy," the court said. "Nor could a court set across-the-board domestic emissions standards or require any unilateral, mandatory emissions reductions over entities not party to the suit."

Indiana's brief seeking to overturn the appellate decision argues that it would lead to more litigation that could eventually apply to any businesses that emit carbon gases.

"The theory of liability being advanced here has no limiting principle," Indiana's brief said. "It would permit federal courts to impose CO2 (carbon dioxide) emission limits on any entity in the country, and one might reasonably expect that the major economic actors of each state, not to mention state government entities themselves, would be on a list of potential defendants."

In addition to Connecticut, the states suing to limit the power plants' emissions are New York, New Jersey, California, Iowa, Vermont, Rhode Island and Wisconsin.

With Indiana and Kansas, states urging the Supreme Court to dismiss the suit include Arkansas, Nebraska, Kentucky, Ohio, Pennsylvania, Utah, Hawaii, North Dakota and Wyoming.

Dire predictions

In Kansas, such regulation could fall particularly hard on energy, oil and gas, aircraft manufacturing and agriculture industries, the Attorney General's Office said.

"Allowing the courts to short circuit our political process could subject Kansas industry to unforeseen liability through lawsuits, and those lawsuits could be brought in courts outside of Kansas," Six said.

Six's opponent in the upcoming attorney general election, state Sen. Derek Schmidt, R-Independence, said he agreed with Six's decision to join the litigation, although he questioned whether Six's actions have been aggressive enough.

"I've been following it (the Connecticut case) closely for weeks," he said. "This should have been a no-brainer for Kansas. Clearly, Kansas interests require our state to aggressively object to efforts to regulate greenhouse gases by regulatory fiat."

He also said the Attorney General's Office should pursue other avenues to fight greenhouse gas regulation, including opposing the Environmental Protection Agency.

The EPA is considering regulating greenhouse gases, following a Supreme Court decision that ruled the agency has authority to do that under the federal Clean Air Act.

But not everyone in Kansas wants to fight limits on carbon emissions.

"I think the attorney general is looking short-term and the long-term effect is going to be continuing to emit these gases," said Tom Kneil, air quality chairman for the Southwind Group of the Kansas chapter of the Sierra Club.

He said it is doubtful that Congress will pass any emission standards in the current political environment.

The House has passed cap-and-trade legislation that would encourage reduction by requiring companies to buy credits for excess emissions, but the legislation has been blocked by Republicans and some Democrats in the Senate.

"Too many legislators are beholden to large industries and the major polluters from energy companies on down," Kneil said.

He said the consequences of global climate change will be worse the longer the nation puts off reducing emissions.

"There's no question that the evidence coming day-by-day, from a majority of scientists, continues to show global warming is going to create problems down the road for us all," Kneil said. "In the long term, we're going to have to make these adjustments to save the planet — well, not the planet, but our lifestyle on it. The planet will go on."

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