New environmental cops: state attorneys general

By Ron Scherer and Alexandra Marks

NEW YORK - State attorneys general are known best for throwing mobsters in jail and trying to protect consumers from things like false advertising and Medicare fraud. But now an increasing number are taking an activist role well outside their state boundaries - challenging federal agencies, treading novel legal waters, and suing everyone from pharmaceutical companies to mutual funds.

In their latest foray, they're taking on global warming and polluters in states other than their own. Wednesday, eight attorneys general from California to Connecticut, along with officials from New York City, filed suit against five giant utilities they contend are the nation's largest emitters of carbon dioxide, a key contributor to global warming. None of the companies are located in the states that are suing.

The AGs charge that the utility companies are creating a "public nuisance" with their greenhouses gasses. But they're not asking for any financial damages, just for a court to require the companies to reduce their emissions.

Such national environmental regulation usually falls within the purview of the Environmental Protection Agency (EPA), but the AGs contend that it has failed, along with Congress and the Bush administration, to deal effectively with the threats from global warming. "This lawsuit opens a new legal frontier in the fight against global warming, a challenge that poses a serious threat...," says California Attorney General Bill Lockyer.

To supporters, the AG's aggressive move across state boundaries and into the federal regulatory territory is yet another inventive effort by state authorities to fill an important policy void left by Washington. "This reflects a broad concern among the American people about global warming," says David Sandalow, an environmental scholar at the Brookings Institution in Washington. "Polling data shows they believe it's a serious problem. They don't know what to do about it, and they're looking for elected leaders to do something."

But critics are just as adamant that this suit is farfetched - and simply grandstanding. They believe the AG's effort to extend their authority upsets the balance of powers between the federal and state governments. "It's easier to gloat about being an environmental steward if the costs are being paid by someone in a different state," says Michael Greve, an environmental expert at the American Enterprise Institute. "It's precisely because environmental laws always have these distributive effects [on different states,] that there's a place these kinds of decisions are traditionally made - it's called the US Congress."

This is not the first time the AGs have taken on the feds. Indeed it's part of a trend that began two decades ago with the advent of federal deregulation. It gathered momentum in 1998 when a group of attorneys general sued the tobacco industry to force changes in the advertising and marketing of cigarettes.

That resulted in a landmark settlement with the industry, which agreed to pay more than $200 billion over 25 years to the states as well as to change their practices. During the Clinton administration, AGs from the northeastern states also brought lawsuits against the major coal-fired utilities to reduce sulfur dioxide emissions. Several of the companies have settled, agreeing to multibillion-dollar environmental improvements. Others are still in court or mediation.

New York Attorney General Eliot Spitzer has led the latest state assaults on federal territory by taking on mutual-fund companies usually regulated by the Securities and Exchange Commission, and pharmaceutical firms usually regulated by the Food and Drug Administration. Only last week, Mr. Spitzer and six other AGs challenged the EPA's decision to exempt the ballast-water discharges from ships from federal pollution rules, which could affect the health of the Great Lakes as well as the shipping industry.

When the Bush administration took over, the EPA also tried to make it easier for utilities with older coal-burning plants to upgrade their facilities, without going through extensive environmental upgrades. But last December, the AGs got a federal judge to block implementation of the new rules until they could be challenged in court. "Thanks to the attorneys general, the rollbacks are on hold," says Frank O'Donnell of the Clean Air Trust, an environmental group. "They have shown some real clout."

The move Wednesday marks the first time a group of AGs has sued over carbon dioxide, which is not listed as a pollutant by the EPA, in part because it's a natural part of the environment. The lawsuit singles out five large Midwest power companies that burn coal, which, they say, emit about 650 tons of carbon dioxide a year. "We contend it is a pollutant in these volumes and is devastating public health," says William Sorrell, Vermont's attorney general.

Yet the utility industry, which has been battling the eastern AGs for years, disagrees. It argues that it is voluntarily reducing its emissions and says there are not enough other "clean" fuels, such as natural gas, to supply the power needed for the economy. "We think this is a misguided way to approach climate change," says Jim Owen of the Edison Electric Institute, an industry group.

Scott Segal of the Electric Reliability Coordinating Council, another utility group, calls it a "nuisance" lawsuit. "Given that every human being emits carbon dioxide every day, the next thing we anticipate from these attorneys general is a collective demand to hold our breath."

But Mr. Sorrell says if predictions of warmer temperatures come true, it will mean major changes in Vermont: "The maple forests would suffer greatly, and we'll be known for our oak and pine forest, not the world's best maple syrup."

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