Fourth Circuit: Lawsuits not the way to regulate air quality

John O'Brien Jul. 27, 2010, 2:23pm


RICHMOND, Va. (Legal Newsline) - A federal appeals court has overturned North Carolina Attorney General Roy Cooper's victory in a public nuisance pollution lawsuit against Tennessee Valley Authority, calling his initial victory "a flawed ruling."

Judges Harvie Wilkinson, Paul Niemeyer and Dennis Sheed of the U.S. Court of Appeals for the Fourth Circuit all voted against Cooper, who alleged emissions from out-of-state TVA plants has polluted his state.

U.S. District Judge Lacy Thornburg had found that three Tennessee plants and one Alabama plant are causing a public nuisance in North Carolina.

The decision, written by Wilkinson and released Tuesday, said the cost of Cooper's success would have been in the billions of dollars. TVA's customers would have surely picked up some of the cost, Wilkinson added.

"The district court's well-meaning attempt to reduce air pollution cannot alter the fact that its decision threatens to scuttle the extensive system of anti-pollution mandates that promote clean air in this country," Wilkinson wrote.

"If courts across the nation were to use the vagaries of public nuisance doctrine to overturn the carefully enacted rules governing airborne emissions, it would be increasingly difficult for anyone to determine what standards govern.

"Energy policy cannot be set, and the environment cannot prosper, in this way."

Wilkinson also wrote that Congress must have felt the same when it authorized the Environmental Protection Agency to set its regulations.

The case was being watched by a group of 16 state attorneys general that filed an amicus brief urging the court to affirm their right to use public nuisance claims in pollution lawsuits.

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

New York's Andrew Cuomo and Maryland's Doug Gansler led the group. The attorneys general of California, Connecticut, Delaware, Illinois, Iowa, Maine, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, Oklahoma, Rhode Island and Vermont joined them.

Alabama Attorney General Troy King, however, stood alone among his colleagues. His office was allowed to participate in May's oral arguments and has called Thornburg's decision "extraterritorial regulation."

"The district court's decision is extraordinary," King's attorneys wrote in July 2009.

"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."

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.

Wilkinson wrote that a "patchwork of nuisance injunctions" could lead to more pollution because it could lead to power companies utilizing areas with less stringent rules.

"Thus, while public nuisance law doubtless encompasses environmental concerns, it does so at such a level of generality as to provide almost no standard of application," he added.

"If we are to regulate smokestack emissions by the same principles we use to regulate prostitution, obstacles in highways, and bullfights...we will be hard pressed to derive any manageable criteria.

"The contrast between the defined standards of the Clean Air Act and an ill-defined omnibus tort of last resort could not be more stark. We are hardly at liberty to ignore the Supreme Court's concerns and the practical effects of having multiple and conflicting standards to guide emissions."

TVA is the largest public power provider in the country. The public nuisance theory has also been largely unsuccessful in litigation against the former makers of lead paint.

From Legal Newsline: Reach John O'Brien by e-mail at

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