Tuesday, July 27, 2010

State of North Carolina v. Tennessee Valley Authority

Jul 26: In the U.S. Court of Appeals, Fourth Circuit, Case No. 09-1623. This is a high profile case involving some states and business groups supporting the TVA and many states and environmental organizations supporting the State of North Carolina. The Appeals Court explains that the Tennessee Valley Authority (TVA) appealed an injunction requiring immediate installation of emissions controls at four TVA electricity generating plants in Alabama and Tennessee. The injunction was based on the district court's determination that the TVA plants' emissions constitute a public nuisance in North Carolina. As a result, the court imposed specific emissions caps and emissions control technologies that must be completed by 2013.
    The Appeals Court said the ruling was flawed for several reasons. The Justices said, "If allowed to stand, the injunction would encourage courts to use vague public nuisance standards to scuttle the nation's carefully created system for accommodating the need for energy production and the need for clean air. The result would be a balkanization of clean air regulations and a confused patchwork of standards, to the detriment of industry and the environment alike. Moreover, the injunction improperly applied home state law extraterritorially, in direct contradiction to the Supreme Court's decision in International Paper Co. v. Ouellette, 479 U.S. 481 (1987). Finally, even if it could be assumed that the North Carolina district court did apply Alabama and Tennessee law, it is difficult to understand how an activity expressly permitted and extensively regulated by both federal and state government could somehow constitute a public nuisance. For these reasons, the judgment must be reversed."
    In making its decision, the Appeals Court listed a number of remedies that North Carolina could pursue and said, "This list of possible remedies does not even include private law remedies that may be available to North Carolina. Indeed, if North Carolina believes that TVA is not complying with its permits, the Clean Air Act provides for suits "against any person . . . who is alleged to have violated . . . or to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation." 42 U.S.C. § 7604(a)(1). The statute further grants a cause of action against the EPA if it fails to perform any non-discretionary responsibility, 42 U.S.C. § 7604(a)(2), and also allows suit against any entity that constructs a source of emissions without securing the requisite permits. 42 U.S.C. § 7604(a)(3). If North Carolina believes that any of these violations have occurred, it remains free to pursue such avenues as well.
    "As this non-exclusive discussion of remedies demonstrates, North Carolina has a number of possible paths to pursue in its entirely laudable quest to guarantee pure air to its citizens. Seeking public nuisance injunctions against TVA, however, is not an appropriate course. The laws in place have been designed by Congress to protect our air and water. Plaintiff would replace them with an unknown and uncertain litigative future. As the Supreme Court has emphasized, the legal difficulties with this approach are legion. No matter how lofty the goal, we are unwilling to sanction the least predictable and the most problematic method for resolving interstate emissions disputes, a method which would chaotically upend an entire body of clean air law and could all too easily redound to the detriment of the environment itself. . . For the foregoing reasons, we reverse the judgment of the district court and remand with directions to dismiss the action."
    Access the complete opinion (click here).

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