Cooper still weighing TVA appeal, gets extension

John O'Brien Dec. 15, 2010, 1:54pm


WASHINGTON (Legal Newsline) - North Carolina Attorney General Roy Cooper has been given extra time to decide if he wants to give the U.S. Supreme Court another environmental public nuisance lawsuit to think about.

U.S. Supreme Court Chief Justice John Roberts last month granted Cooper an extension in which to file a petition for appeal in Cooper's case against power provider Tennessee Valley Authority. Cooper claims TVA's emissions in other states are drifting over North Carolina and causing a public nuisance.

The Supreme Court, earlier this month, accepted an appeal in the case of eight states that claim power companies are creating a public nuisance with their emissions. President Barack Obama opposes the states' stance, as well as the one taken by Cooper in his lawsuit.

Cooper has until Feb. 3 to decide if he will appeal a ruling by the U.S. Court of Appeals for the Fourth Circuit that overturned his victory in a district court.

In October, Cooper told Legal Newsline that he was unsure if he would accept the Fourth Circuit's ruling, ask for a rehearing before all judges on the court or appeal to the Supreme Court.

The Fourth Circuit's decision, written by Judge Harvie 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."

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

In that case, six power companies are battling a lawsuit brought by eight states, New York City and environmental groups. The lawsuit claims the power companies are creating a public nuisance with their emissions.

The companies are appealing a 2009 ruling from the Second Circuit that allowed the case to proceed.

"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," Katyal's brief says.

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

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