State of North Carolina v. Tennessee Valley Authority

Jan 31: In the U.S. Court of Appeals, Fourth Circuit, Case No. 06-2131. As explained by the Fourth Circuit, in 1933, Congress created the Tennessee Valley Authority (TVA) "in the interest of the national defense[,] for agricultural and industrial development, . . . to improve navigation in the Tennessee River[,] and to control the destructive flood waters in the Tennessee River and Mississippi River Basins." As part of its mission, the TVA operates coal-fired power plants in Tennessee, Alabama, and Kentucky.

The State of North Carolina brought a "common-law nuisance action" against the TVA, contending that these plants emit various pollutants which travel through the atmosphere into North Carolina, adversely impacting human health and environmental
quality. North Carolina seeks an injunction prohibiting the TVA from operating its plants in a harmful manner and requiring it to abate the alleged nuisance.

The TVA moved to dismiss North Carolina’s suit, arguing that it is barred by (1) the "discretionary function doctrine," (2) the Supremacy Clause, and (3) the holding of Ferris v. Wilbur, 27 F.2d 262 (4th Cir. 1928). The district court rejected each of these arguments and denied the motion to dismiss. The district court then certified its decision for immediate appeal pursuant to 28 U.S.C. § 1292(b), and the Appeals Court accepted the appeal. The Appeals Court said, "The TVA now reasserts the same arguments it raised in the district court" and affirmed the decision of the district court. The case involved 20 intervening states supporting North Carolina. Two judges affirmed the opinion and one judge wrote an opinion concurring in part and dissenting in part.

In the case, the State of North Carolina sues TVA under the North Carolina common law of nuisance to enjoin the way that the TVA operates its coal-fired power plants in other States, namely Tennessee, Alabama, and Kentucky. North Carolina alleges that the "lawful emissions" from the TVA’s power plants in other States travel downwind and reach North Carolina airspace, where they damage human health and the environment in North Carolina. "Even though such emissions are regulated by and in compliance with the federal Clean Air Act and State law at the location of the plants," North Carolina contends that the emissions, whether permitted under applicable statutory laws, nonetheless create a public nuisance under North Carolina common law.

In his concurring/dissenting opinion, Judge Niemeyer explains, "The threshold question presented to us is whether the TVA, a federal agency, is immune from such a suit. Arguing that it is not, North Carolina points to waivers of immunity contained in the TVA Act, 16 U.S.C. § 831c. . . and in the Clean Air Act, 42 U.S.C. § 7418(a). . . The majority concludes that North Carolina may proceed under either waiver, as either is sufficiently broad to authorize North Carolina’s suit against the TVA. While I agree that the language of both statutes is sufficiently broad to authorize the district court to consider the North Carolina suit on its merits, I conclude that 16 U.S.C. § 831c must be read in light of the Constitution’s separation of powers doctrine, which precludes a suit challenging a governmental agency’s exercise of its discretionary functions. . ."

North Carolina's Attorney General Roy Cooper issued a brief statement saying, "Clean air is critical to our health and our economy. This ruling clears the way for us to make TVA clean up its pollution that’s dirtying our air and making North Carolinians sick.” He said North Carolina can now move forward with its suit seeking to get TVA to clean up air pollution from its power plants. Cooper filed suit against the TVA in January of 2006 seeking to stop "dirty air from TVA coal-fired power plants that harms North Carolina’s health, environment and economy." North Carolina’s case against TVA pollution is currently pending trial in federal district court in Asheville before United States District Judge Lacy H. Thornburg.

Access the complete majority opinion and the concurring/dissenting opinion (click here). Access the statement from AG Cooper (click here).