North Carolina’s injunction against four Tennessee Valley Authority power plants in Alabama and Tennessee, which required the immediate installation of costly emissions controls, was overturned by the U.S. Court of Appeals for the Fourth Circuit on Monday, July 26, 2010, in State of North Carolina v. TVA, No. 09-1623 (4th Cir., July 26, 2010). North Carolina had obtained the injunction based on 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 2013. Judge Harvie Wilkinson, writing the unanimous opinion for the Fourth Circuit stated:
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.
North Carolina had argued that the case is about the protecting the public health and saving the environment from dirty air. North Carolina’s position had always been that power plants beyond the reach of North Carolina’s Clean Smokestacks Act – the TVA power plants in particular – were responsible for dirtying the air in western North Carolina. North Carolina thought it had found a loophole through which it could slip its public nuisance case: the Clean Air Act contains a savings clause that
Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief.
42 U.S.C. 7604(e). However, the Court rejected that argument stating that air emissions are heavily regulated through a complex and thorough system that has undergone consistent and widespread judicial scrutiny for over 30 years. The Court explained in some detail that North Carolina had other options besides filing a nuisance lawsuit. Indeed, the Court pointed out, the Clean Air Act makes specific provision for states that are affected by air pollution created in other states: a section 126 petition, which “provides an important method for downwind states like North Carolina to address any concerns they have regarding the adequacy of an upwind state’s regulation of airborne emissions.” In arriving at its conclusion that the Clean Air Act trumps a nuisance action, the Court reviewed the jurisprudence of nuisance actions and how they are ill-fitted to assisting in the laudable goal of reducing air pollution when there is already a regulatory system in place that produces better results. In the end, the Court concluded:
The district court’s well-meaning attempt to reduce air pollution cannot alter the fact that its decision threatens to scuttle the extensive system of anti-pollution mandates that promote clean air in this country. If courts across the nation were to use the vagaries of public nuisance doctrine to overturn the carefully enacted rules governing airborne emissions, it would be increasingly difficult for anyone to determine what standards govern. Energy policy cannot be set, and the environment cannot prosper, in this way.
Comparing this case to Connecticut v. American Electric Power Company, Inc., 582 F.3d 309 (2nd Cir. 2009) (See also, “Second Circuit Rules that States Can Sue Power Companies for Nuisance Created from Emissions”) throws the issues of nuisance causes of action for environmental claims into relief. Less than a year ago, the U.S. Court of Appeals for the Second Circuit ruled that there was a nuisance cause of action under federal common law. In that case Connecticut and a handful of other states, land trusts and New York City, argued that power plants that spew carbon dioxide into the air are liable for creating a nuisance based on the plants’ contribution to climate change. The Second Circuit stated that because the Clean Air Act does not “thoroughly address” the problem of greenhouse gas emissions from power plants, the Plaintiffs had stated a cause of action for public nuisance. Id. at 381.
Thus, there are at least three distinctions to be made between American Electric Power and North Carolina v. TVA. First, the AEP decision was a ruling on a Motion to Dismiss. The Second Circuit ruled that the Plaintiffs had sufficiently stated a cause of action for public nuisance. There has yet to be any ruling on whether the Plaintiffs can actually win under that theory. In North Carolina, by contrast, the District Court had already found for the Plaintiffs on the nuisance cause of action. Second, AEP was based on a federal nuisance claim, rather than one that focused on the state law of nuisance, as in North Carolina. Some of the issues that concerned the Fourth Circuit about extraterritoriality of state nuisance claims would be alleviated by the application of a federal nuisance claim. However, what would still scotch that claim in the North Carolina scenario is the fact that in AEP, the pollutants in question were not regulated by the Clean Air Act whereas in North Carolina they were. The Fourth Circuit recognized this fact:
We need not hold flatly that Congress has entirely pre-empted the field of emissions regulation. We cannot anticipate every circumstance that may arise in every future nuisance action. In TVA I, for example, we held that the savings clause of the Clean Air Act may allow for some common law nuisance suits . . .
In the end, the upshot of the ruling in North Carolina v. TVA seems to be that while environmental nuisance claims may be cognizable in federal court, the chances for success will be based on whether the issue at stake is covered by a comprehensive system of regulation. If not, then under AEP, the nuisance claim has a better chance of success. If so, then under North Carolina v. TVA, it will be much more difficult to prove. Most likely, North Carolina v. TVA is on its way to the Supreme Court – North Carolina Attorney General Cooper has too much invested in this matter to not see it all the way through. Maybe then we will get some definitive answers about nuisance causes of actions for environmental claims.