From The New York Times, “States Can Sue Utilities Over Emission“:

A panel of the United States Court of Appeals for the Second Circuit, in New York, ruled that eight states — California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin — as well as New York City and three land trusts could proceed with a suit against American Electric Power, Southern Corporation, the Tennessee Valley Authority, Xcel Energy and Cinergy Corporation, all large coal-burning utilities.

The case, brought in 2004, said the defendants were creating a “public nuisance” and sought reductions in emissions that scientists say are changing the climate.

The opinion from the Second Circuit in the case, Connecticut v. American Electric Power Co.,is available here. The National Association of Manufacturers had joined other business associations in filing an amicus brief in support of the utilities, which is available here.

This is a horrible decision, encouraging litigation to define activities essential to U.S. economic growth, jobs and government revenues as public nuisances. The ruling again places the judiciary in the constitutionally improper and anti-democratic role of policymaker.

As the brief argues:

Plaintiffs allege that emissions of CO2 contribute to global warming. CO2 is emitted principally from the combustion of fossil fuel to produce energy. Thus, if global warming nuisance suits were allowed, any human activity that involves combustion of fossil fuel would become a potential target of nuisance suits. Moreover, under plaintiffs’ theory, it would not matter where the emissions occur, because CO2 emissions from any location allegedly mix in the upper atmosphere with other CO2 emissions and allegedly contribute to warming worldwide. The result of plaintiffs’ theory would be that any person or organization alleging damage from global warming would be able bring a nuisance suit against any person, company, municipality or other entity, wherever located, that plaintiffs believe is using energy in an inefficient or excessive manner, or that plaintiffs believe to be capable of using a less carbon-intensive fuel or of reducing CO2 emissions in some other manner. The range of possible litigation targets is virtually endless, because combustion of fossil fuels, for both personal and business purposes, pervades American life.

Basically, what plaintiffs seek is nothing less than to have the judiciary decide how fossil fuel energy should be used in this country—a venture that would draw the judiciary deeply into difficult and contentious issues of national and international energy policy. The District Court correctly held that these issues of energy policy are political questions beyond the jurisdiction of the judiciary—questions that should be decided only after the kind of full debate and public participation that the political, legislative and administrative processes can provide. Congress and the President have recognized that global warming and energy policy are inextricably intertwined and should be addressed on a national and international basis. To address these issues in case-by-case litigation of nuisance suits can only lead to an unworkable patchwork of inconsistent and uncertain results, where no user of fossil fuel could be assured that its operation, even though compliant with existing law, could continue given the ever-present threat of a lawsuit—or perhaps multiple suits—seeking to control emissions.

The United States is only right now at the start of an economic recovery — perhaps. That recovery will require expanded energy production and business investment. But if you’re the head of a company that wants to invest for the future — in the process creating jobs and wealth — and you find that self-aggrandizing attorneys general and anti-growth environmentalists can simply litigate you into paralysis, well, the hell with it.

Yet that’s the situation as now exists in the states that comprise the Second Circuit.

• Reuters, “U.S. court reinstates emissions suit vs. utilities“
• Point of Law, Michael Krauss, “2nd Circuit Revives ‘Federal Common Law of Nuisance’ Suit”. Krauss, a professor of law at George Mason, had the same reaction as we did (or vice versa, as he wrote first): “If this Circuit ruling stands, why should investors have confidence in industrial projects that have received all necessary legal permits to be built? A ‘federal nuisance suit’ filed by a ‘land trust’ or a state other than the permitting state could destroy profitability. Presumably investors would need all 50 states’ approval plus that of the ‘land trusts.’ Talk about a chill to job creation.”

The Consumer Product Safety Commission’s Scott Wolfson reports yesterday via Twitter, “#CPSC officially now a Commission of 5 - agency welcomed new Commissioners Bob Adler and Anne Northup today.”

Congratulations to all.

Elsewhere, an interesting and optimistic blog post from Sarah Natividad of Tooele, Utah, detecting a CPSC trying to carve out a fair treatment of manufacturers from an unfair law, the Consumer Product Safety Improvement Act.  At issue is the CPSC’s final rule (and commissioner statements) on the lead content limits in certain products. Sarah writes at Organic Baby Farm, “Sending a Message“:

[You] might wonder, what is the message CPSC is sending out now, in between the lines? It’s pretty close to “La la la la la, we’re not listening!”– only it’s not addressed at small business, it’s addressed at the law.

CPSC had a choice of interpretations of the law when it came to exempting things like textiles and wood. They could have taken a strict view of the law. This view is represented by the positions of Commissioner Nancy Nord (although I know she takes these positions reluctantly, knowing and caring how much it hurts businesses, in hopes that Congress will see how ridiculous their law is and change its mind). You see, there have been cases where textiles have been shown to have violative amounts of lead, so CPSC could have easily adhered to the letter of the law and not exempted textiles from third party lead testing. Instead, they went with “All textiles/wood/rocks/etc. are lead-free! …except when they’re not.” This, I think, reflects the new leadership of Chairman Inez Tenenbaum. And while that’s a confusing and maddeningly tautological statement, the selection of it as the official position speaks volumes.

Is it really something to applaud, a regulatory agency that finds ways to circumvent the full impact of badly written law? In reality, yes, but then, does it help fix the law? We’re getting lost in the dialectic of the tautology.

In other lead news, we have a release from all-seeing, all-powerful Attorney General Jerry Brown of California, “Brown Creates Nation’s First Enforceable Lead Standards for Artificial Turf.” He has that power, to create a national lead standard? (Update: Upon closer reading, we see it’s the nation’s first standard, not a national standard.) The first paragraph is a classic of the “politician running for higher office” form, that is, populist AND hubristic:

OAKLAND-Fighting to ensure the safety of children’s playgrounds and ball fields, Attorney General Edmund G. Brown Jr. today signed off on an agreement requiring Georgia-based AstroTurf, LLC to virtually eliminate lead from its artificial grass, creating the country’s first enforceable lead standards for artificial turf products.

The agreement requires AstroTurf* to reformulate its products so that they contain less than 100 parts per million (ppm), and to further reduce lead levels to 50 ppm by June 2010.

So what’s the lead content of regular old footballs fields made from soil and turf? (For point of reference: The White House’s vegetable garden’s lead content is 93 ppm.)

In any case, now that Jerry Brown has weighed in, we know that it’s safe to make children’s products from reformulated Astro Turf. Granted, those cute little Lederhosen will chafe.

* No criticism of Astro Turf implied, either. The power of an ambitious attorney general is nothing to scoff at.

Sure seems like the goal, at least in California. And since California’s policies are setting the model for the entire United States…

From The Chico Enterprise Record, “Global warming, housing density hot topics at Friday seminar“:

RED BLUFF — North state officials remain concerned about the relationship between sprawl and California’s global warming laws after a presentation Friday.

Dan Zack, downtown development coordinator for Redwood City, told the group that combined with insulation that saves on energy costs, urban, multi-family homes are responsible for about half as many greenhouse gas emissions as suburban homes.

And…

But high-density planning is not a safeguard against lawsuits citing environmental impacts. In May, Cottonwood resident Gary Catlin enlisted the support of the Sierra Club in a lawsuit accusing Tehama County of failing to take into account the effects of the areas, which could lead to increased development near his 5-acre Country Hills property.

From The Wall Street Journal, 2008, an op-ed by Joel Kotkin, a presidential fellow in urban futures at Chapman University, “Jerry Brown’s War on California Suburbs.”

Alas. This item is not on the website, so for historical purposes, we’ll post it.

The Post also solicits input:

We welcome reader feedback on these changes. Please call 202-334-7320, e-mail businesscomments@washpost.com or write to: Business Section, The Washington Post, 1150 15th Street, NW, Washington, D.C. 20071.

Continued thoughts….(8:45 a.m.):

Don’t worry. We’ll always have Steven Pearlstein. His column today, “California’s Wipeout Economy,” addresses a favorite topic around here, which we cast as California’s hostility to business as evidenced by high taxes, ever-increasing regulations, rampacious unions, environmental utopians and the apotheosis of these all, Jerry Brown.

Following  a trip to California, Pearlstein identifies the macroeconomic trends that have laid the state low:

It is hard to overstate how reliant the Southern California economy has always been on population growth to drive its economic growth — in oversimplified terms, building houses for the next wave of home builders. In the beginning, the early developers could be pretty confident that if they built it, they would come — from the Northeast and Midwest, and then from all corners of the globe. But in recent years, this perpetual growth machine has pretty much run out of steam as residents old and new confronted the realities of two-hour commutes, bad air, a shortage of water and a backlash against illegal immigration.

Moreover, without the steady growth in tax revenue that came with population growth, the Ponzi scheme that passes for public finance in California was suddenly and painfully revealed. Much of the blame lies with public employee unions and a handful of other special-interest groups that have essentially hijacked political control of state and local governments. Now, despite decades of high taxes and rapid growth, state and local governments find that they not only don’t have the revenue to provide even basic services, but are saddled with hundreds of billions of dollars in unfunded pension liabilities and infrastructure needs.

It’s “the backlash against illegal immigration” that people are reacting to? The backlash? What a strange comment.

Investor’s Business Daily also examines California’s woes today in its editorial, “California’s Hefty Union Dues“: “Organized Labor: The state that led the way in giving labor push-button power to organize against private-sector taxpayers now stands — if you can call it standing — as a cautionary tale.”

Ah…to end on at least one positive note about California, here’s John Doe singing “Golden State” from last year’s South by Southwest festival.

Funny observation in Jay Nordlinger’s “Impromptus” column today:

More on language: A friend wrote (not in text), “Have you noticed the fashion of calling attorneys general by their adjective? I was reminded just now when Geraldo called Jerry Brown ‘General Brown.’”

We don’t cite Nordlinger around here much except when he’s at Davos; he writes mostly about culture with a dose of foreign policy. But his column yesterday at National Review Online, “My Kingdom for a Safe Zone,” was a joy to read, albeit a depressing joy, and it warrants a plug. Nordlinger chronicled the incessant inclusion of left-wing political commentary and snobbery in what should be apolitical cultural events like symphonies. We see the same phenomenon in rock ‘n roll acts, of course: OK, Elvis, we get it, you’re against the war. Now shut up and sing.

Anyway, outstanding column.

From Legal Newsline, “Nestle cancels bottling contract in seek of ‘clean slate’“:

McCLOUD, Calif. (Legal Newsline)-The largest distributor of bottled water has cancelled its contract with the McCloud Community Services District to build a manufacturing plant on the banks of the pristine McCloud River.

In a letter sent via overnight courier to the city on Friday, Nestle’s Executive Vice President and General Counsel Mark Evans wrote that recent changes in the scope and size of the project has led to the decision in the hopes that both sides can “start with a clean slate and build an agreement that reflects the current circumstances.

“We believe that is best that we step out of the existing contract and start a new,” Evans wrote.

The news follows a threat by Attorney General Jerry Brown to sue the bottled water company because of its potential environmental impact on the McCloud River, the amount of fossil fuels required to produce and ship plastic bottles, and the amount of water the existing contract allowed the company to remove from the river each year.

An environmental scold with unlimited ambition and unfettered powers. Jerry Brown knows better than you.

Or anything else that offends the globally attuned sensitivities of California’s attorney general. Get in Jerry Brown’s way, you will be sued!

State Attorney General Jerry Brown today warned Siskiyou County officials that they’ll face legal challenges if Nestle doesn’t address global warming in its plans to build a bottling plant in McCloud.

Citing environmental and global warming concerns in a letter to the Siskiyou County planning department, Brown said that Nestle Waters North America needs to revise its contract with the county to bottle water, even though the firm recently announced it would downsize its original plans.

“It takes massive quantities of oil to produce plastic water bottles and to ship them in diesel trucks across the United States,” Brown said in a statement. “Nestle will face swift legal challenge if it does not fully evaluate the environmental impact of diverting millions of gallons of spring water from the McCloud River into billions of plastic water bottles.”

So you can see where business might be leery of expanded authority for attorneys general in legislation, like, oh, the new CPSC bill.