Sixteen AGs stand by Cooper in public nuisance case

John O'Brien Feb. 11, 2010, 3:00pm


RICHMOND, Va. (Legal Newsline) - Sixteen states say it is important that North Carolina Attorney General Roy Cooper's lawsuit against a power company prevails because they should be allowed to bring public nuisance pollution suits of their own.

The group, led by New York Attorney General Andrew Cuomo and Maryland Attorney General Doug Gansler, filed an amicus brief in support of Cooper's suit late last year in a federal appellate court.

There, Tennessee Valley Authority is appealing a district court decision that found three Tennessee plants and one Alabama plant are emitting sulfur dioxide, nitrogen oxide and mercury, and they are being carried into the North Carolina air.

Eight of the states are suing six power companies that have coal-burning power plants. One of those companies is TVA.

"States that are significantly affected by interstate air pollution cannot improve their air quality solely by exercising their authority to regulate in-state sources of pollution," says the brief, filed Nov. 30.

Alabama Attorney General Troy King, however, stands alone among his colleagues in protesting the decision. He called U.S. District Judge Lacy Thornburg's decision "extraterritorial regulation."

"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."

That decision forced TVA, the largest public power provider in the U.S., to spend hundreds of millions of dollars on pollution controls at the four plants. Thornburg refused to stay that action until the appeal was settled.

Alabama has intervened in the case, which is currently being weighed by the U.S. Court of Appeals for the Fourth Circuit.

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 states joining in Cuomo's and Gansler's brief were California, Connecticut, Delaware, Illinois, Iowa, Maine, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, Oklahoma, Rhode Island and Vermont.

The states that asked the U.S. Court of Appeals for the Second Circuit for the power to bring public nuisance global warming suits were New York, California, Iowa, New Jersey, Rhode Island, Vermont, Wisconsin and Connecticut.

It took the Second Circuit more than three years after arguments to issue its 139-page decision.

A recent Washington Legal Foundation paper argued against public nuisance claims in climate change lawsuits.

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