FOURTH CIRCUIT RULES TVA POWER PLANT EMISSIONS ARE NOT A NUISANCE

FOURTH CIRCUIT RULES TVA POWER PLANT EMISSIONS ARE NOT A NUISANCE

In 2009, a North Carolina District Court issued an injunction requiring four TVA coal-fired power plants in Alabama and Tennessee located within 100 miles of the North Carolina border to install exhaust scrubbers and to reduce their air emissions by 2013. The injunction was based on the “district court’s determination that the TVA plants’ emissions constitute a public nuisance in North Carolina” because of alleged contaminated air migrating from these plants into North Carolina.

North Carolina argued that the case focused on protecting the public health and, therefore, state nuisance law applied. However, on July 26, 2010, the Fourth Circuit Court of Appeals stated in North Carolina v. Tennessee Valley Authority, 2010 U.S. App. LEXIS 15286 (4th Cir. 2010) that air emissions have been “extensively regulated nationwide by the Clean Air Act for four decades.” To allow a state law nuisance claim to affect that regulation would lead to a “confused patchwork of standards, to the detriment of industry and the environment alike.” The Court went on to explain that North Carolina had multiple options besides filing a nuisance lawsuit. For example, it could use the Clean Air Act to make a claim regarding a neighboring state’s air pollution.

The Fourth Circuit ultimately reversed the North Carolina District Court’s judgment and ordered that the case be dismissed. It is likely this case will see its way to the Supreme Court. We may then get some clarification regarding state law environmental claims that arise out of circumstances already covered by federal statute.