The US Court of Appeals for the Second Circuit ruled on Sept. 21st that power companies can be sued based on injuries caused by climate change. Recently, eight US states, the City of New York, and three non-profit land trusts sued six power companies. The plaintiffs asserted that the power companies were willfully contributing to damages from global warming even though they have "practical, feasible, and economically viable options for reducing emissions." Defining as a "public nuisance" the various present and future costs of climate change, the plaintiffs sought to "hold Defendants jointly and severally liable for creating, contributing to, or maintaining a public nuisance."

After three years of dispute, the Court ruled that States and some non-state parties have the right to file lawsuits against the power companies for perpetuating a public nuisance. The Court said that inaction in the congressional legislature and unutilized regulatory power by the US Environmental Protection Agency resulted in regulatory authority falling to the courts. What does this all mean?

If Congress passes a climate bill that seeks to regulate US emissions, the whole issue would evaporate. Federal regulation would mean that the authority of the Courts would be displaced, and the matter would become legislative rather than judicial. This unusual twist means that industry might be asking for (weak) regulations from Congress to keep the courts out of the picture.

The Second Circuit’s ruling is a score for the environmental community, but if the utilities bring the decision to the Supreme Court, the ruling has a healthy chance of being overturned. But it might hold. Consequently, environmental advocates will likely use the ruling to urge the EPA or Congress to act quickly to regulate industry before the Courts do. Note that while the EPA recently granted itself the authority to regulate GHG’s through the Clean Air Act with its endangerment finding, the fact that it is not using its authority means the court’s authority is not presently displaced.

The EPA is nervous about bluntly regulating industry and managing climate change through endless strings of public nuisance lawsuits is good for nobody but lawyers. So the pressure really falls on Congress. To save US industry from clumsy regulation by the EPA or expensive public nuisance lawsuits, Congress must seize its opportunity and pass a climate bill that regulates emissions before someone else does.

By Jeff Beyer .(JavaScript must be enabled to view this email address)