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AGs vs. Utilities

State attorneys general target energy policy issues.

Fortnightly Magazine - June 2009

litigation. Whether or not a company believes a given AG is acting solely on what he or she perceives to be the concerns of citizens and in the best interests of the state, the company must have a strategy to respond in a cooperative and proactive manner. A thoughtful, well-presented message by key members of the industry can help shape AG perceptions by balancing a state’s goal to protect citizens’ health and conserve natural resources with a company’s desire to build new infrastructure and supply products to improve the state’s economy and the lives of its citizens. By formulating strategies to reach out to and partner with AGs, energy companies can work to better both the environment and their business climates.

 

Endnotes:

1. United States v. Am. Elec. Power Serv. Corp ., Nos. C2-99-1250 et al., 2007 WL 3023139 (S.D. Ohio Oct. 9, 2007) (Consent Decree).

2. North Carolina ex rel. Cooper v. Tenn. Valley Auth. , 593 F. Supp.2d 812 (W.D.N.C. Jan. 13, 2009).

3. The amount of damages to which New Jersey may be entitled has not been decided.

4. New Mexico v. Gen. Elec. Co. , 467 F.3d 1223 (10th Cir. 2006) (New Mexico AG claiming damage for lost use of ground water despite polluter’s payment of clean-up costs); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig. , 488 F.3d 112 (2d Cir. 2007) (California and New Hampshire AGs seeking damages for damages to groundwater from gasoline additive).

5. Connecticut v. Am. Elec. Power Co. , 406 F. Supp. 265, 268 (S.D.N.Y. 2005), appeal docketed No. 05-5104 (2d Cir. Sept. 22, 2005). The case is pending on appeal.

6. The Martin Act empowers the New York AG to investigate corporations doing business in the state and to issue subpoenas upon suspicion of fraudulent, deceptive, or misleading activities. N.Y. Gen. Bus. Law § 352.

7. Massachusetts v. U.S. EPA , 549 U.S. 497, 521 (2007).

8. National Association of Attorneys General, Interim Briefing Paper Prepared for: President-elect Barack Obama Transition Team, 6-7 (2009), available at: http://www.naag.org/assets/files/pdf/policy/Transition_Team_Briefing_Paper_20090110.pdf.

9. The states involved cited their quasi-sovereign interest recognized in Massachusetts v. EPA as support for their standing to reverse EPA’s decision.

10. The Clean Air Act allows California to petition the EPA to permit the state to set tighter emissions standards than federal guidelines, and other states may adopt California’s standards. 42 U.S.C. §§ 5707, 7543(b).

11. Comment, Vermont Office of Attorney General, Carbon Offset Workshop, FTC No. #533254-00051, Project No. P074207 (Jan. 25, 2008), available at: http://www.ftc.gov/os/comments/carbonworkshop/533254-00051.pdf.

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