Eight states and the City of New York have filed the nation's first lawsuit against private companies to require reductions in carbon dioxide emissions. California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont, Wisconsin and New York city on July 21 sued American Electric Power Co., Columbus, Ohio; Southern Co., Atlanta; Tennessee Valley Authority, Knoxville; Xcel Energy Inc., Minneapolis, and Cinergy Corp., Cincinnati. Together, they own or operate 174 fossil-fueled powerplants in 20 states that emit about 650 million tons of CO2 per year. The suit seeks to order the defendant companies to reduce their emissions under the federal common law of public nuisance, which provides a right of action to curb pollution emanating from sources in other states. New York State Attorney General Eliot Spitzer says CO2 reductions of 1% to 3% are achievable, and that cuts at that level would not have a noticeable impact on retail electricity rates.

"The solution isn't going to be switching to natural gas," says Robert McIlvaine, principal of The McIlvaine Co., Northfield, Ill., an air-pollution consultant. Gas is promoted as clean-burning fuel, but North American production is declining, and new incremental growth must come from liquefied natural gas imported from overseas. The energy required to liquefy, transport and vaporize the LNG adds 30% to the ostensible emissions of greenhouse gas produced by combustion of the regasified LNG, he notes, largely nullifying the advantage of gas over coal. More likely, emissions will be reduced through boiler modifications that allow gasified biomass and other wastes to be injected for co-firing with coal. McIlvaine informally estimates the cost of modifications at $3 billion, relatively little considering that "AEP is spending $7 billion just on air-pollution control equipment," he says.

Opponents blasted the effort. "If Congress wanted the EPA to regulate CO2, it would pass legislation requiring the EPA to regulate CO2," says Jeffrey Marks, National Association of Manufacturers director of air quality. "This is classic 'regulation by litigation,' trying to substitute the inexpert views of one judge for decisions our democratic society has already made through duly elected representatives," adds Quentin Riegel, NAM vice president for litigation.

"The (attorneys general) are engaging in irresponsible political grandstanding," says Myron Ebell, director of global warming and international environmental policy at the Competitive Enterprise Institute. Noting that the Senate last fall rejected the "Climate Stewardship Act," he accuses the AGs of "seeking to take over setting national policy from the Congress and the president."