King will argue 'extraterritorial regulation' in N.C. public nuisance suit

John O'Brien Aug. 13, 2009, 12:34pm


ASHEVILLE, N.C. (Legal Newsline) - Alabama Attorney General Troy King is getting his chance to intervene in North Carolina Attorney General Roy Cooper's public nuisance suit against power provider Tennessee Valley Authority.

The U.S. Court of Appeals for the Fourth Circuit granted King's motion to intervene July 20 in TVA's appeal of a decision against the company. Cooper alleged seven out-of-state TVA plants are emitting large amounts of sulfur dioxide, nitrogen oxide and mercury into the air, and they are being carried to his state.

In a decision King called "extraterritorial regulation," U.S. District Judge Lacy Thornburg ruled in January that TVA must spend hundreds of millions of dollars installing pollution controls and placed a cap on its annual emissions. He wrote that three Tennessee plants and one Alabama plant were causing a public nuisance in North Carolina.

"The district court's decision is extraordinary," King's attorneys wrote in July.

"Pursuant to a North Carolina statute expressly directing him to do so, North Carolina's attorney general convinced the district court to enter a sweeping, detailed and demanding injunction that purports to micromanage the operation of a power plant located in Alabama.

"The details of that injunction come straight out of North Carolina's
Clean Smokestacks Act, and thus place the burden of North Carolinians' policy choices squarely on the shoulders of Alabamians."

TVA did not deny some of its emissions entered North Carolina, but protested the amount Cooper claimed.

Cooper blamed TVA's smokestacks for more than 15,000 illnesses a year, adding they damage forests, lakes and streams. He, the Resolution Group and the Ayres Law Group of Washington, D.C., filed his complaint in Jan. 2006.

The company already planned some of the updates required by Thornburg's decision, but has asked for a stay on those it did not.

Meanwhile, King complained assertively about the decision. The state has its own clean air laws, but Thornburg wrote they were inapplicable to the case because the alleged harm occurred in North Carolina.

"Alabama's interest here, put simply, is in resisting the hijacking of its law," King's attorneys wrote.

Cooper argued that Alabama should be required to join in TVA's briefs or simply file an amicus brief, but the State will get to file its own briefs and participate in oral arguments.

King also had few kind words for Cooper's argument.

"Rather than addressing (Alabama's) interest head on, North Carolina sets up and then knocks down a straw man: that Alabama's interest exists solely because the district court's decision 'was based... on Alabama nuisance law.' That is incorrect.

"Alabama's sovereign and parens patriae interests arise in this appeal not by virtue of the fact that Alabama law was applied, but by virtue of the fact that Alabama law was disregarded."

King also wrote that Cooper cannot dispute that his intention in filing the suit was to enforce North Carolina smokestacks law in other states.

"As directed, North Carolina filed suit against Tennessee Valley Authority plants in other states and then urged the district court to impose on those out-of-state plants 'emission rates equivalent to North Carolina's Clean Smokestack Act.'

"Indeed, upon filing the complaint, North Carolina's attorney general issued a press release announcing that he was 'asking the Court' to 'requir[e] TVA to control its emissions to levels similar to those required... by the North Carolina Clean Smokestacks Act on a similar timetable.'"

Bradley Arant Boult Cummings of Birmingham is representing Alabama in the case. TVA is federally owned and the largest public power provider in the country.

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