State AGs take public nuisance issue to U.S. Supreme Court

By John O'Brien | Feb 8, 2011

Cooper WASHINGTON (Legal Newsline) - The U.S. Supreme Court has become the venue for state attorneys general to submit their thoughts on using public nuisance claims to file environmental protection lawsuits.


WASHINGTON (Legal Newsline) - The U.S. Supreme Court has become the venue for state attorneys general to submit their thoughts on using public nuisance claims to file environmental protection lawsuits.

While North Carolina Attorney General Roy Cooper is making the case that premature deaths will continue if emissions from four out-of-state factories are not stopped, another group of attorneys general says in another case that legislation -- not litigation -- should be used to regulate air quality.

If the U.S. Supreme Court sides with eight states that claim power companies are creating a public nuisance with their emissions, then the amount of prospective defendants that could be sued over global warming is limitless, a brief filed by 23 state attorneys general says.

"Plaintiffs' theory of liability involves nothing more specific than prosecuting the emission of carbon dioxide," says the friend-of-the-court brief, filed Monday with the U.S. Supreme Court.

"As utility owners, power plant operators, and generally significant CO2 emitters (through facilities, vehicle fleets and highway construction, among other functions), states and their political subdivisions could be future defendants in similar actions."

The U.S. Supreme Court decided in December that they would hear the appeal of six power companies. A 2009 ruling from the U.S. Court of Appeals for the Second Circuit allowed the case to proceed, but did not find the companies liable for a public nuisance.

The eight plaintiff states are Rhode Island, New York, Connecticut, Vermont, California, New Jersey, Wisconsin and Iowa. President Barack Obama's solicitor general asked the court to side with the companies because he says the Environmental Protection Agency has the authority to determine the proper levels of emissions.

"This lawsuit urges a court to cap CO2 emissions that federal and state law would otherwise permit," the brief filed by 23 states says. "It would undermine the entire state-federal regulatory scheme, not to mention the trade-offs incorporated into relevant international political obligations.

"State political branches have struck balances between economic development and environmental protection that exist within national and international regulatory frameworks, all of which demonstrate the political nature of the emissions regulation, and all of which deserve respect in federal court. The adversarial legal system is ill-equipped for this most political of debates."

The Fourth Circuit already addressed that issue in Cooper's public nuisance lawsuit against Tennessee Valley Authority. A three-judge panel ruled against Cooper in July, overturning a district judge's decision.

Judge Harvie Wilkinson wrote that a patchwork of public nuisance injunctions would only cause confusion between states and companies and pass increased costs to consumers. He also wrote that using the "vagaries" of the public nuisance doctrine to overturn already established regulations would make it "difficult for anyone to determine what standards govern."

Cooper is asking the U.S. Supreme Court to hear his appeal. He filed his petition last week.

Cooper says the federal government sets the minimum level of air quality, and states are charged with implementing programs to achieve those standards. States also have the authority to add stronger requirements, he says.

He also claims U.S. Supreme Court precedent is on his side. A 1987 decision against a New York paper company was hit with a private nuisance claim by a Vermont resident who lived across a lake from the company.

The U.S. Supreme Court ruled that the Clean Water Act allowed states to set higher standards for themselves. The Fourth Circuit said the decision was "equally applicable" to the Clean Air Act but it did not allow the affected state to bring a nuisance action under the law of another state if it would upset the reliance interests of permit holders, Cooper says.

Three of the TVA plants found to be causing a nuisance by the district judge are located in Tennessee, and the other is in Alabama. Cooper says sulfur dioxide and nitrogen oxides are causing premature deaths, asthma attacks and inflammation of lungs in people downwind of the plants.

He also says the Great Smoky Mountains - "one of our nation's greatest natural treasures " - have been scarred by an acidification of the soil and an increased haze.

"The present appeal is of exceptional importance," Cooper's petition says. "The district court, in factual findings that were not challenged on appeal, concluded that TVA's excess air emissions result in premature deaths (as well as numerous other adverse health effects and environmental harms) within the State of North Carolina.

"Failure to correct the Fourth Circuit's erroneous decision will ensure that these deaths and other harms - which could be avoided by the installation of readily available pollution control technology - will continue."

The attorneys general who took part in the 23-state amicus brief in the appeal from the Second Circuit decision are Indiana's Greg Zoeller, Alabama's Luther Strange, Kansas' Derek Schmidt, Alaska's John Burns, Kentucky's Jack Conway, Arizona's Tom Horne, Louisiana's Buddy Caldwell, Arkansas' Dustin McDaniel, Missouri's Chris Koster, Colorado's John Suthers, Nebraska's Jon Bruning, Florida's Pam Bondi, North Dakota's Wayne Stenehjem, Georgia's Sam Olens, Ohio's Mike DeWine, Idaho's Lawrence Wasden, Oklahoma's Scott Pruitt, Pennsylvania's William Ryan, South Carolina's Alan Wilson, South Dakota's Marty Jackley, Utah's Mark Shurtleff, West Virginia's Darrell McGraw, Wyoming's Bruce Salzburg.

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State of North Carolina U.S. Environmental Protection Agency (EPA) U.S. Supreme Court

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