Results matching “tva nuisance”

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.

Good to see a federal court practice restraint in contrast to, say, the 2nd Circuit in Connecticut v. American Electric Power. (Coverage: AP, Birmingham News, Legal Newsline.)

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.

Amicus briefs in TVA nuisance case - PointOfLaw Forum

The Alabama attorney general has filed a brief on behalf of the public utility in North Carolina's much-watched case, as have the U.S. Chamber of Commerce and several other business groups. Public Nuisance Wire also quotes Brian Walsh (Heritage) and Maureen Martin (Heartland), as well as other critiques. Our earlier coverage of the litigation can be found here, here, here, here, and here.

Nuisance, the TVA, and extraterritoriality - PointOfLaw Forum

The Attorney General of Alabama argues that North Carolina in its suit is improperly seeking to apply its regulatory standards to industrial facilities located in other states. [Legal NewsLine]

Returning to litigation last mentioned here in April, the Tennessee Valley Administration is appealing a federal judge's ruling that held its coal-fired power plants in Tennessee and Alabama caused a public nuisance by polluting North Carolina's air. Attorney General Roy Cooper sued the TVA in January 2006 (news release, complaint). In January 2000 U.S. District Judge U.S. District Judge Lacy Thornburg ruled that emissions from the TVA's plants caused "significant hurt, inconvenience [and] damage'' in North Carolina, even though the plants were compliant with the Clean Air Act permits and their home states' emission limits. The court ordered the TVA to upgrade, install or speed installation of environmental technology.

In May, the TVA appealed to Fourth Circuit as related in this news release, "TVA Files to Appeal in North Carolina Lawsuit." Then, earlier this month the AG's office responded in its own filings claiming any delays would harm the state's citizens. (Asheville Citizen-Times, "NC: No delay in TVA's clean-up.")

Amid all this predictable back and forth are other, more provocative stories dug up by The Carolina Journal, a publication of the free-market group, the John Locke Foundation. There's this, "DAQ Scrapped Report After Meeting With AG Lawyers: "RALEIGH -- The N.C. Division of Air Quality scrapped a pollution report days after lawyers working for Attorney General Roy Cooper expressed concerns that its findings might lead to unwanted questions about the state's lawsuit against the Tennessee Valley Authority."

And now....a fun story about AG Cooper's state-hired lawyers and staffers spending gas tax revenue to pay for but not stay in D.C. hotel rooms, "Law Firm Racked Up Hotel, Airline Fees":

A second wind for public nuisance law? - PointOfLaw Forum

Despite the predominant failure of campaigns to use public nuisance law as a surrogate for product liability in areas like guns and lead paint, plaintiffs are finding courts willing to entertain sweeping applications of nuisance doctrine in more conventional environmental-law settings, according to Steven R. Williams and R. Trent Taylor of McGuire Woods and James T. Lynn of duPont, in the NLJ. Taylor also has an article in BNA (PDF) sounding the alarm about a January federal decision in favor of North Carolina in its nuisance suit over Tennessee Valley Authority utility emissions, which he says could foreshadow advances for global-warming litigation -- though Chuck Moellenberg of Jones Day contends that the TVA case does not present as much novelty as all that, at least as to its nuisance-law angle.

A state's public nuisance lawsuit that succeeded - PointOfLaw Forum

The decision by Ohio AG Richard Cordray to drop the state's lawsuit against paint manufacturers for lead contamination reminds us to check back on another attorney general's public nuisance suit -- the one brought by North Carolina AG Roy Cooper against the Tennessee Valley Authority for air pollution caused by the TVA's coal-fired power plants.

(Earlier post.)

Cooper appears to have won. On January 13, U.S. District Judge Lacy Thornburg of the Western District of North Carolina ruled in the state's favor and ordered specific steps the TVA must take. The TVA's latest 8K filing is quick and to the point:

On January 13, 2009, the United States District Court for the Western District of North Carolina issued its decision in the lawsuit brought by North Carolina against TVA alleging that TVA's operation of its eleven coal-fired power plants in the states of Tennessee, Alabama, and Kentucky constitute public nuisances. The court held that emissions from the Bull Run Fossil Plant ("Bull Run"), the Kingston Fossil Plant ("Kingston"), the John Sevier Fossil Plant ("John Sevier"), and the Widows Creek Fossil Plant ("Widows Creek") constitute a public nuisance. The first three plants are located in Tennessee, and Widows Creek is located in Alabama. The court declined to order any relief as to the remainder of TVA's coal-fired plants, holding that their emissions did not significantly impact North Carolina.

The judge goes on to order specific actions regarding flue gas desulfurization systems, scrubbers, and nitrous oxide emissions. Cooper issued a statement hailing the ruling's effects on "our air, our health, and our travel and tourism economy."

Rate payers will pick up the costs, obviously; already the TVA had ordered $1 billion in pollution controls for three of the plants. From AP: "The nation's largest public utility, already paying out $1 million a day to clean up a massive coal ash spill in Tennessee, said expenses could rise even more if it has to meet a federal judge's accelerated deadline for reducing smokestack pollutants blowing into North Carolina."

The Tennessean has had excellent coverage, including background materials, to which we link from the main story, "TVA must limit plants' pollution


The ash spill has certainly colored coverage and commentary on the ruling, and the New York Times reached for the grand conclusion in an editorial, "Collapse of the Clean Coal Myth."

Not sure why this attorney general's public nuisance lawsuit drew such dramatically less attention than Rhode Island's suit against the paint manufacturers, but in any case ...

Trial concluded this week in North Carolina Attorney General Roy Cooper's lawsuit against the Tennessee Valley Administration for creating a public nuisance through its coal-fired power plants in other states. Cooper brought suit in federal court in January 2006 (news release, complaint and FAQ) after failing to win his arguments before the EPA, trying to hold the TVA to the standards of the state's Clean Smokestacks Act of 2002. The TVA maintains that it is reducing emissions, installing scrubbers, etc. U.S. District Judge Lacy Thornburg, who heard the suit, is expected to issue a ruling after September 15.

Both the Tennessean and Asheville Citizen-Times did a good job covering daily trial developments. Here are the most recent reports:

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