Climate Change Attorney Blog

On Monday the Second Circuit Court of Appeals reinstated an action by eight states, the City of New York and three land trusts challenging the levels of carbon dioxide emissions by coal burning power plants under a theory of nuisance. In State of Connecticut v. American Electric Power Company, Inc. the plaintiffs claim that the carbon dioxide emissions from these coal burning plants contribute to global warming and should be ultimately reduced.

The basis for the claims was stated by the Court as:

"Plaintiffs claim that global warming, to which Defendants contribute as the “five largest emitters of carbon dioxide in the United States and . . . among the largest in the world,” Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265, 268 (S.D.N.Y.2005), by emitting 650 million tons per year of carbon dioxide, is causing and will continue to cause serious harms affecting human health and natural resources. They explain that carbon dioxide acts as a greenhouse gas that traps heat in the earth’s atmosphere, and that as a result of this trapped heat, the earth’s temperature has risen over the years and will continue to rise in the future."

Reversing the lower court the Circuit Court found:

" We hold that: (1) Plaintiffs-Appellants’claims do not present non-justiciable political questions; (2) Plaintiffs-Appellants have standing to bring their claims; (3) Plaintiffs-Appellants state claims under the federal common law of nuisance; (4) Plaintiffs-Appellants’ claims are not displaced; and (5) the discretionary function exception does not provide Defendant-Appellee Tennessee Valley Authority with immunity from suit. Accordingly, we VACATE the judgment of the district court and REMAND for further proceedings."

New York’s Appellate Division (Fourth Department) issued a decision in early February, 2009 upholding a denial by the Town of Ellicottville of site plan and special permit approval to construct a cogeneration plant using wood chips as fuel, as part of a larger development proposal. In Matter of Laidlaw Energy and Environmental Inc. v Town of Ellicottville, the court found that the conclusion contained in the New York State Environmental Quality Review Act (SEQRA) findings that "serious increases in harmful emissions" from the plant would result in an "unacceptable adverse impact" was not arbitrary and should be upheld.

In what appears to be one of, if not, the first decision in New York to deny a land use approval due to concern over carbon emissions, the court has found that this is a proper consideration under SEQRA. Unfortunately, the decision goes into little detail about the findings or the issues posed. However, thanks to Daniel Spitzer, Esq. the partner at Hodgson Russ LLP, who successfully defended the decision, we were able to obtain a copy of the Town’s detailed SEQRA findings.

The findings focused on a number of issues but Greenhouse Gases (GHGs) and Carbon Dioxide were a focus in the analysis of the cogeneration plant, noting in part: “the issue of carbon neutrality is far more complicated, and while biomass plants can be carbon neutral, the Laidlaw proposal is neither carbon neutral when viewed locally or regionally, because the Laidlaw proposal is not coupled with a sustainable agricultural management program….Laidlaw is not planting new trees to take up the carbon. It is burning the dead or trimmed mature trees, meaning the fuel source will not absorb the carbon released in equal portions.” The findings also discuss attempts to have Laidlaw put together a sustainable agricultural management program in conjunction with the plant and the refusal of Laidlaw to implement such a plan.

The findings also reviewed related impacts: “proponents for sustainable biomass plants note the importance of local fuel sources. Here, where the travel routes are up to 100 miles, the carbon dioxide released by the transporting trucks unbalances the equation, even if the facility were otherwise carbon neutral. Conservatively estimating that each truckload will come from an average distance of 50 miles away, it is expected each truck delivering chips will travel 100 miles roundtrip per delivery. Using an average fuel economy of 5 miles per gallon of diesel fuel, each delivery of chips would require the burning of 20 gallons of diesel fuel. Based on EPA estimates. Some of this will occur in Ellicottville, and all will occur in the region. Thus, Laidlaw’s project is not carbon neutral on a regional level, and because it will concentrate in Ellicottville carbon sequestered over a large area, it is not neutral on a local level.”

After noting the other potential impacts of the proposal the Town concluded that other aspects of the project could move forward, subject to conditions, but “[a]s to the new biomass plant, the Planning Board has reviewed the Alternatives discussed in the DEIS, and additional comments in the FEIS, and, for the most part believes that Laidlaw is correct, that size, technology or other alternatives are unfeasible. The exception is the No Action Alternative, which the Town believes is the required route for the biomass plant based on the record….The proposed Biomass Cogeneration Facility will have unavoidable adverse impacts on the community at unacceptable levels; is inconsistent with and will have a negative impact on the neighborhood character; presents a use inconsistent with the goals of the community as stated in the Town Comprehensive Plan and Zoning Ordinance; will create unacceptable noise levels; and significant air pollution emissions; all of which are significant, unmitigable environmental detriments; and therefore, for each of these reasons individually and collectively, as well as the others stated in this Statement of Findings and Decision, the Site Plan is denied.”

In a challenge to attempts by several north Texas cities to address climate change issues, cement manufacturer Ash Grove LLP has brought an action in the U.S. District Court for the Northern District of Texas. The lawsuit, which was filed on November 26, 2008, alleges that the local resolutions, favoring purchasing cement which is produced through a process which releases less pollution, violates both Texas contract bidding requirements and the constitutional rights of Ash Grove LLP.

According to the Dallas Morning News, Ash Grove is the only one of several cement manufacturers in the area which does not operate any “dry process kiln” for the manufacturing of cement, which is claimed to release less pollution. The attorneys for Ash Grove maintain that the resolutions adopted by Dallas, Plano, Arlington and Fort Worth “stifled competition.”

The potential impact of this suit on attempts by local governments to regulate purchasing in a manner which considers the effects of manufacturing processes on global warming are not yet clear.