AIR POLLUTION:

TVA emissions aren't an interstate nuisance, 4th Circuit rules

A federal appeals court has reversed a ruling that would have forced the Tennessee Valley Authority to spend $1 billion on pollution controls at coal-fired power plants in Tennessee and Alabama.

North Carolina Attorney General Roy Cooper (D) had sued TVA in 2006, arguing that the federally owned utility's plants posed a public nuisance because their air pollution crossed state lines and contributed to haze over his state's western mountains.

U.S. District Judge Lacy Thornburg of Asheville, N.C., sided with the state last year, ordering TVA to upgrade or install pollution controls for sulfur dioxide (SO2) and nitrogen oxides (NOx) at the Bull Run, Kingston and John Sevier plants in Tennessee and the Widows Creek Fossil Plant in Alabama (Greenwire, Jan. 14, 2009).

In a decision handed down Monday, a three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously overturned Thornburg's injunction. The common-law claim would upset the delicate balance that has been struck by state and federal laws and regulations, Judge J. Harvie Wilkinson III wrote in his opinion for the court.

"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," Wilkinson wrote. "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."

The ruling in North Carolina v. TVA deals a blow to environmentalists, who had hoped that common law could provide another means of addressing pollution. Nuisance claims are the basis for several climate change lawsuits now working their way through federal courts.

In one such case, Connecticut v. AEP, the 2nd U.S. Circuit Court of Appeals ruled that states have standing to sue sources of greenhouse gas emissions for their contribution to global warming. Industry groups in the 2nd Circuit case have until next week to file a petition for review by the Supreme Court.

Another nuisance suit is ongoing in the 9th Circuit, and the 5th Circuit scrapped a similar ruling last month because of a procedural matter (Greenwire, June 1).

'Not an appropriate course'

The TVA case had been closely watched by business groups, environmentalists, states and lawmakers.

Sixteen state attorneys general, including New York's Andrew Cuomo (D), filed a friend-of-the-court brief urging the court to uphold the public nuisance claim. The top attorneys of Alabama and Tennessee filed briefs in support of TVA along with a handful of lawmakers from those states.

Business groups including the U.S. Chamber of Commerce, the National Association of Manufacturers, the American Petroleum Institute and the Utility Air Regulatory Group argued in another brief that allowing public nuisance claims would undermine the certainty provided by the Clean Air Act and state regulations.

There are several programs in place to address air pollution that crosses state lines, TVA had argued, including U.S. EPA's Clean Air Interstate Rule (CAIR), the Nitrogen Oxide Budget Trading Program (NOx SIP Call), acid rain rules and haze regulations intended to improve visibility in national parks and wilderness areas.

Earlier this month, EPA unveiled a proposed "transport" rule intended to prevent any state from causing any other state to flunk federal air standards for ozone and particulate matter.

"As a practical matter, the district court's decision could expose virtually any source of emissions above an arbitrary case-by-case threshold anywhere in the country to liability for causing or contributing to a public nuisance," TVA's brief said.

The appeals court agreed. Because the air pollution standards set by EPA are stricter than the rules under common law, Wilkinson wrote, a company that is in compliance with federal requirements cannot logically be a public nuisance.

"North Carolina has a number of possible paths to pursue in its entirely laudable quest to guarantee pure air to its citizens. Seeking public nuisance injunctions against TVA, however, is not an appropriate course," Wilkinson wrote. "The laws in place have been designed by Congress to protect our air and water. [North Carolina] would replace them with an unknown and uncertain litigative future."

Click here to read the decision.