Last year, U.S. District Judge Lacy H. Thornburg of Asheville, N.C., agreed with the arguments of North Carolina Attorney General Roy Cooper's lawsuit that claimed the Tennessee Valley Authority's coal-fired power plants in Tennessee and Alabama created a public nuisance because they harmed the airshed in western North Carolina. On Monday, a three-judge panel of the 4th U.S. Circuit Court of Appeals sitting in Richmond, Va., reversed the judgment. From the opinion in State of North Carolina v. TVA, written by Judge J. Harvie Wilkinson III:
The Tennessee Valley Authority (TVA) appeals an injunction requiring immediate installation of emissions controls at four TVA electricity generating plants in Alabama and Tennessee. The injunction was based on the district court's determination that the TVA plants' emissions constitute a public nuisance in North Carolina. As a result, the court imposed specific emissions caps and emissions control technologies that must be completed by --.
This ruling was flawed for several reasons. If allowed to stand, the injunction would encourage courts to use vague public nuisance standards to scuttle the nation's carefully created system for accommodating the need for energy production and the need for clean air. The result would be a balkanization of clean air regulations and a confused patchwork of standards, to the detriment of industry and the environment alike. Moreover, the injunction improperly applied home state law extraterritorially, in direct contradiction to the Supreme Court's decision in International Paper Co. v. Ouellette, 479 U.S. 481 (1987). Finally, even if it could be assumed that the North Carolina district court did apply Alabama and Tennessee law, it is difficult to understand how an activity expressly permitted and extensively regulated by both federal and state government could somehow constitute a public nuisance. For these reasons, the judgment must be reversed.
UPDATE (5:15 p.m. Wednesday): Good summary story from Greenwire at NYT, "TVA's Air Pollution Isn't an Interstate Nuisance, 4th Circuit Rules," with the helpful specificity of referring to the common law nature of federal public nuisance law. Otherwise, this ruling has made a surprisingly little amount of news.