In a move that could significantly impact the US approach to fighting climate change, the top court in the coming months will consider a lower ruling that allows states and environmental groups to sue utility companies under federal public nuisance law to make them reduce their greenhouse gas emissions.

US federal law already provides a system to regulate greenhouse gases, but the appeals court ruling in favor of the lawsuit filed by environmentalists, eight states and New York City would allow an additional avenue to pursue emitters.

The power companies lobbying for an overruling contend the lower court created a "regime for setting caps on greenhouse gas emissions based on 'vague and indeterminate nuisance concepts.'"

The potential compensation, the companies argue, for the impact of climate change impacts "would make the tobacco pay-outs look like peanuts."

In their view the move would allow an individual court's assessment "of what is 'reasonable'" compensation to the potential damage their output caused.

According to one of the environmental groups that brought the case, Open Space Institute, the appeals court's ruling set a "major precedent in that it gives citizens -- in the absence of climate change legislation -- the right to take action against big business pollution."

The lawsuit was brought by the groups, New York City, and the states of Connecticut, California, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin.

earlier related report
Guarded hope at UN climate talks
Cancun, Mexico (AFP) Dec 6, 2010 - Negotiators on climate change were raising their hopes Monday after signs of modest progress in Mexico, but a dispute over the future of the Kyoto Protocol threatened to derail momentum.

The 194-nation talks at the Caribbean resort city of Cancun were trying to finalize a general statement on the world's long-term action against climate change as envoys arrived for the main thrust of talks starting Tuesday.

But with few expecting a full-fledged climate treaty anytime soon, the UN-led negotiations were considering extending the Kyoto Protocol beyond 2012 -- setting off sharp disagreements.

The United Nations and host Mexico are mindful of widespread disappointment over last year's summit in Copenhagen and have tried to keep expectations in check by discouraging heads of state from coming and highlighting progress.

"We must continue working with a new sense of urgency," Mexican Foreign Minister Patricia Espinosa said. "I am optimistic that we will move forward very quickly in the next two days."

But the climate negotiator for the European Union, which champions action against global warming, said that advances during Cancun's first week of lower-level talks had been insufficient.

"Texts currently on the table are not ready to be used by ministers to finalize a deal," EU Climate Commissioner Connie Hedegaard said.

"A robust and balanced outcome is in reach here in Cancun, but it requires us to step up the pace of negotiations. We have come here to negotiate, not restate national positions."

Talks are taking place on two tracks. Organizers released a draft agreement on one of them -- the part covering long-term action by the world against global warming.

The draft would reconfirm a key part of the Copenhagen accord -- that the world needs to make "deep cuts" in industrial emissions to keep warming in check at two degrees Celsius above pre-industrial levels.

The draft also calls for a review on whether the goal should be strengthened to 1.5 degrees Celsius in light of warnings by scientists that the world faces growing natural disasters and extinction of species due to climate change.

The agreement would recommit developed countries to mobilize 100 billion dollars a year by 2020 to help the poorest nations adapt to climate change.

Wendel Trio, international climate policy director for environmental group Greenpeace, said that the atmosphere in climate diplomacy had "vastly improved" in the past year but that Cancun "can still go both ways."

"We can leave with an agreement that has substance on a pathway to a legally binding deal, or have one with very little substance. It's hard to predict, but at least there's a positive sign," he said.

Momentum in several key developed nations has shifted away from climate action. The United States is unlikely to approve nationwide cuts on emissions anytime soon after the November election victory of the Republican Party, some of whose members doubt the scientific basis of climate change.

Faced with the growing view that a new global treaty is far away, the European Union has led calls to extend the Kyoto Protocol. Its requirements for developed nations to cut emissions run out at the end of 2012.

Japan has adamantly rejected the idea, saying that the Kyoto Protocol -- negotiated in its ancient capital in 1997 -- is unfair and that it will not sign up for a second round of pledges under the treaty.

The Kyoto Protocol makes no demands of developing nations such as China, which is now the world's top emitter. The United States, the number two emitter, also is free of requirements as it rejected the treaty in 2001.

"We must dispel the clouds over the Kyoto Protocol because we do not want to handicap the Cancun outcomes," said Indian negotiator Vijai Sharma.

India has joined China in balking at US-led demands that the next treaty legally bind them to cut emissions.

Sharma said that the issue was premature, saying: "Unless we know the substance, how can we speculate about the form?"

The consequences of climate change were evident even in the Mayan community of Tabi, around 200 kilometers (120 miles) southwest of Cancun, where farmers said changes in the weather are forcing them to change their lives.

These days rain is increasingly unpredictable in a region where the wet season had come like clockwork since the times of the ancient Maya.

Now drought, floods and hurricanes alternate -- extreme conditions that devastate crops.

"Even if you plant crops, the soil only gets drier with all the sun and if there is no water, how do we water it? So even if we are doing our part, if the soil doesn't produce, what else can we do?" farmer Eunice Be Chuc told AFP.

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