N.C. AG mulling future of emissions lawsuit

John O'Brien Oct. 27, 2010, 5:48pm


WASHINGTON (Legal Newsline) - After being shot down by a federal appeals court, the future of a public nuisance lawsuit filed by North Carolina Attorney General Roy Cooper against an energy provider is uncertain.

The U.S. Court of Appeals for the Fourth Circuit ruled in July that lawsuits shouldn't be used to regulate air quality, and that decision received some support from President Barack Obama when he urged the U.S. Supreme Court to reach the same conclusion in a similar lawsuit.

Cooper doesn't know if he will appeal his case, filed against Tennessee Valley Authority. He could either appeal to the U.S. Supreme Court or ask for a hearing before all judges of the Fourth Circuit.

"We're still talking about that," he said Wednesday.

Judges Harvie Wilkinson, Paul Niemeyer and Dennis Sheed of 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, 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."

Over a year ago, the Second Circuit allowed a public nuisance lawsuit filed by eight states, New York City and environmental groups against six power plants to proceed.

Solicitor General Neal Katyal filed a brief with the U.S. Supreme Court that says the federal Environmental Protection Agency has the authority to determine the proper levels of emissions.

"That regulatory approach is preferable to what would result if multiple district courts -- acting without the benefit of even the most basic statutory guidance -- could use common-law nuisance claims to sit as arbiters of scientific and technology-related disputes and de facto regulators of power plants and other sources of pollution both within their districts and nationwide," the brief says.

The Plaintiff States are Rhode Island, New York, Connecticut, Vermont, California, New Jersey, Wisconsin and Iowa.

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.

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