Regulation of major greenhouse gas emitters appears increasingly inevitable. The latest news comes out of the U.S. Second Circuit Court of Appeals, where two federal judges ruled that state and local governments can sue power companies over greenhouse gas emissions and their contribution to global warming.

Eight states, the city of New York, and three public land trusts had sued five major coal utilities, according to The New York Times:

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 states cited studies from the United Nations and the National Academy of Sciences that predicted damage and said in fact that their environments had already been damaged. The land trusts said that an increase in sea level would inundate their properties, among other problems. 

Meanwhile, the Obama administration is plodding ahead with its plans to cap greenhouse gas emissions from stationary sources. Yesterday, the White House Office of Information and Regulation Affairs (OIRA), the clearinghouse for federal regulations, approved a proposed rule titled, “Prevention of Significant Deterioration/Title V Greenhouse Gas Tailoring Rule.”

Although the administration has yet to provide the public with any information on the rule, Frank O’Donnell of Clean Air Watch surmises its intent:

“Tailoring,” in this context, probably refers to an attempt to limit the requirements to very large sources of greenhouse gas emissions such as coal-burning electric power plants. (Limiting the requirements to big pollution sources would counter the scaremongering charges by the US Chamber of Commerce, which has alleged that EPA would regulate mom-and-pop stores, donut shops, etc.)

As we understand it, this proposal would be an attempt to put requirements on facilities that emit 25,000 tons or more a year of carbon dioxide. It would require new and modified sources of pollution at that size or greater to use the best available control technology to limit greenhouse gases. 

Action on both the regulatory and judicial fronts puts Congress at a crossroads. Cap-and-trade legislation narrowly passed the House, and fight will be even tougher in the Senate. Congress has also considered undercutting EPA’s regulatory authority. Most recently, Sen. Lisa Murkowski proposed an amendment to a FY 2010 spending bill that would prohibit the agency from spending any money on regulations that would limit greenhouse gas emissions from stationary sources. The provision, if passed, would halt the EPA ruled just approved by OIRA.

But with the Second Circuit’s ruling in place (and, of course, it could be reviewed by the Supreme Court), advocates for emissions limits seem to have the issue surrounded. Can Congress continue to hold a position of non-engagement?

David Doniger of NRDC summed up the significance of the court ruling:

“The best way to fight global warming is for the Senate to pass comprehensive clean energy and climate legislation. However, the court’s decision guarantees that if the Congress fails to do its job, or blocks EPA from doing its job, the biggest power companies will still be held accountable in the federal courts.”