New York Solicitor General Barbara Underwood Makes Her 20th Argument Before the U.S. Supreme Court

WASHINGTON – In oral arguments today, the New York State Attorney General’s Office -- represented by state Solicitor General Barbara Underwood -- urged the U.S. Supreme Court to uphold the right of states to sue five polluting power companies to force them to reduce carbon dioxide emissions, the primary cause of climate change. Leading a coalition on behalf of New York, California, Connecticut, Iowa, Rhode Island, Vermont, and the City of New York, Attorney General Eric T. Schneiderman’s office argued that the power companies are causing a “public nuisance” by releasing greenhouse gases into the air, and can therefore be held accountable in court.

American Electric Power Co., Inc. v. Connecticut marks Solicitor General Underwood’s 20th argument before the Supreme Court.

“This lawsuit seeks to protect our States from climate change that threatens our economy, our health and our natural resources. In the absence of federal action limiting carbon dioxide pollution from fossil-fuel power plants -- by far the largest source of greenhouse gases in the country -- States must have the right to ask a federal court for relief from these dangerous emissions. We trust that the Supreme Court will recognize and respect that interest when ruling in this important case,” said Attorney General Schneiderman.

In 2004, New York—along with several other states, New York City, and environmental groups—sued five large electric power companies in federal court in New York to force them to reduce the carbon dioxide emissions from their fossil fuel burning power plants. These corporations – American Electric Power Co., Cinergy Corp., Southern Co., the Tennessee Valley Authority and Xcel Energy Inc. – are the largest emitters of greenhouse gases in the country, accounting for approximately 10 percent of all domestic human-generated carbon dioxide. Together, they own or operate 174 fossil fuel burning power plants in 20 states that emit about 650 million tons of carbon dioxide each year – almost a quarter of the U.S. utility industry’s annual carbon dioxide emissions.

The federal Environmental Protection Agency does not currently regulate these emissions, and the power companies have, by and large, failed to voluntarily take practical, cost-effective steps that would allow them to generate electricity with lower emissions.

In 2009, the U.S. Court of Appeals for the Second Circuit upheld the states’ right to bring this lawsuit. The power companies appealed the case to the Supreme Court, which is expected to decide the case by July. Attorney General Schneiderman's office is vigorously defending the appeals court’s ruling to protect New Yorkers from the harms caused by climate change. These harms include causing asthma and other respiratory diseases, eroding beaches and inundating properties on Long Island, increasing heat-related deaths in New York City, lowering water levels in the Great Lakes that harm the shipping industry, and killing off hardwood forests in the Adirondacks.

This is the first case where state and local governments have sued private companies to require reductions in the heat-trapping carbon dioxide emissions that scientists say pose serious threats to our health, economy and environment. It was filed under the federal common law of public nuisance, which provides a right of action to curb air and water pollution emanating from sources in other states. Public nuisance is a well-established legal doctrine that is commonly invoked in environmental cases and forms the basis for much of today’s modern environmental law. The defendant companies’ emissions contribute to a harm borne by all members of the public, and the states and City of New York have the right to protect their residents and properties from such widespread harm.

In recent weeks, Attorney General Schneiderman has taken action to protect the air New Yorkers breathe, by filing a lawsuit against a Pennsylvania power plant emitting dangerous sulphur dioxide in violation of the federal Clean Air Act; leading a coalition of attorneys general from Connecticut, Delaware, Maryland, and Massachusetts, against efforts in the U.S. House of Representatives to remove critical environmental regulations that protect New York communities from toxic pollution; and calling on the EPA to protect New York's air by implementing a proposed rule that would slash the amount of air pollution currently allowed to cross state lines.

A separate brief was filed by three land trusts: Open Space Institute, Inc., Open Space Conservancy, Inc., and Audubon Society of New Hampshire.

The case is being handled in the Supreme Court by Solicitor General Underwood, Deputy Solicitor General Benjamin Gutman, Assistant Solicitor General Monica Wagner, and Assistant Attorneys General Michael Myers, Morgan Costello, and Robert Rosenthal.

A copy of the Attorney General’s brief is available at:


  1. My guess is that she lost. I was there. The Justices squeezed her pretty hard.


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