Arguments over, decision next in N.C.'s pollution case

By John O'Brien | May 19, 2010


RICHMOND, Va. (Legal Newsline) - A three-judge panel recently heard oral arguments in Tennessee Valley Authority's appeal of North Carolina Attorney General Roy Cooper's pollution lawsuit.

Judges Harvie Wilkinson, Paul Niemeyer and Dennis Sheed of the U.S. Court of Appeals for the Fourth Circuit heard arguments on May 14 from the two sides, as well as lawyers representing Alabama Attorney General Troy King.

The case is 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.

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 are causing a public nuisance when they are 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," the AGs wrote in their brief.

New York's Andrew Cuomo and Maryland's Doug Gansler are leading 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 are joining them.

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.

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.

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