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Supreme Court hears arguments on greenhouse gas emissions and open space

April 22, 2011 — The Supreme Court heard arguments this week in a landmark case involving the Open Space Institute that attempts to reduce greenhouse gas emissions by large utilities in the absence of federal regulation on the issue.

The suit was filed in 2004 by New York City, eight states and three land trusts—including OSI and its land acquisition affiliate, the Open Space Conservancy—against five of the largest electrical utility companies in the U.S. that, combined, account for approximately 25 percent of the greenhouse gas emissions in the country. The plaintiffs allege that the companies' emissions, by contributing to climate change, have caused damage to millions of acres of publicly funded and accessible open spaces, and thereby constitute a public nuisance.

"The EPA has concluded that greenhouse gases are the primary cause of climate change, yet there is no federal legislation that limits their emissions," said OSI CEO and President Kim Elliman. "This case asks the court, as it has in the past, to establish limits that the federal government has not—to protect public health as well as the public's significant investment in open space."

A 2009 ruling by the U.S. Court of Appeals for the Second Circuit found in favor of the plaintiffs, including OSI, reversing a prior District Court dismissal and sending the case to the Supreme Court.

OSI's role in this case is unique. OSI (and OSC) own substantial amounts of property—tens of thousands of acres of natural lands in New York, much of it open to the public—that may be damaged ecologically and economically by greenhouse gas emissions. OSI is pursuing this judicial remedy at a time when other remedies (e.g., legislative or regulatory) are not available.

"The plaintiffs filed this suit," Elliman said, "because millions of acres have been protected around the country and it is important to ensure that the health of those lands and their accessibility to the public is not undermined by harmful and unchecked greenhouse emissions."

The Court is expected to issue its ruling on the case this summer.

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