By Patrick Berry - 09/30/09 09:25 PM EDT
Other federal nuisance cases are pending before different appellate courts. But the 2nd Circuit’s decision is significant because so many businesses are located in New York and Connecticut and are now subject to it. Faced with this prospect, the business community may now become more willing than ever to support comprehensive GHG legislation. In fact, many informed corporate leaders, including ones affiliated with some of the largest GHG-emitting companies in the world, already recognize that comprehensive legislation is the only workable solution. They had embraced that position even before the Connecticut decision was announced because they feared implementation of expensive and unworkable direct regulation by the Environmental Protection Agency, which has announced its intention to use its existing authority under the Clean Air Act.
If leaders on both sides of the aisle in the Senate conclude that the Connecticut case has made the business community more open to comprehensive legislation, then the necessary serious work between the Senate Democrats and Senate Republicans can now begin.
Surely it would be much better if all the effort (and money) slated to be spent on nuisance lawsuits would be devoted instead to helping the Congress and the administration fashion comprehensive climate change legislation. The time to act is now, before other federal courts follow the lead of the 2nd Circuit.
Berry is a partner in the law firm of Baker Botts LLP and specializes in environmental law. Baker Botts was not involved in the Connecticut case, and the firm states that it has no clients facing exposure from the ruling. The views expressed are the author’s and not necessarily those of the firm or its clients.