North Carolina ex rel. Cooper v. T.V.A., Civil No. 1.06CV20.

CourtUnited States District Courts. 4th Circuit. Western District of North Carolina
Writing for the CourtLacy H. Thornburg
Citation549 F.Supp.2d 725
PartiesState of NORTH CAROLINA, ex rel. Roy COOPER, Attorney General, Plaintiff, v. TENNESSEE VALLEY AUTHORITY, Defendant.
Docket NumberCivil No. 1.06CV20.
Decision Date27 February 2008
549 F.Supp.2d 725
State of NORTH CAROLINA, ex rel. Roy COOPER, Attorney General, Plaintiff,
Civil No. 1.06CV20.
United States District Court, W.D. North Carolina, Asheville Division.
February 27, 2008.

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Michael David Goodstein, Anne E. Lynch, Stacey H. Myers, Resolution Law Group, Richard E. Ayres, Ayres Law Group, Washington, DC, James C. Gulick, Marc Bernstein, N.C. Department of Justice, Raleigh, NC, Sueanna Peeler Sumpter, N.C. Department of Justice, Asheville, NC, for Plaintiff.

Frank Hilton Lancaster, Albert Jackson Woodall, TVA Office of General Counsel, Maria Victoria Gillen, William Thaddeus Terrell, Harriet Andrea Cooper, Thomas Fleming Fine, Tennessee Valley Authority, Knoxville, TN, Michael Kent Stagg, Paul G. Summers, Robert J. Martineau, Jr., William Kenneth Koska, Waller, Lansden, Dortch & Davis LLP, Nashville, TN, for Defendant.


LACY H. THORNBURG, District Judge.

THIS MATTER is before the Court on the parties' motions for summary judgment. Plaintiffs Motion for Partial Summary Judgment, filed July 2, 2007; Defendant's Motion for Summary Judgment (Subject Matter Jurisdiction), filed July 31, 2007; Defendant's Motion for Summary Judgment (Insufficiency of the Evidence), filed August 10, 2007.


On January 30, 2006, North Carolina filed a complaint against Defendant Tennessee Valley Authority ("TVA") seeking "to address emissions of air pollution from TVA's coal-fired electric generating units ('EGUs') installed in electric generating stations ('power plants') located in Tennessee, Alabama, and Kentuckyt.j" Com plaint, filed January 30, 2006, at 1. North Carolina asserts that these emissions adversely affect "the health and welfare of citizens of [North Carolina], damage |the State[s] natural resources and economy, and harm [the State's] finances." Id. The complaint further alleges that TVA operates its power plants in a manner that "creates a common law public nuisance in North Carolina, and in other states in the region." Id. The complaint seeks injunctive relief "to abate the harm caused by the TVA's emissions ... and seeks its fees and costs incurred in this action." Id.

On April 3, 2006, TVA filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), on the grounds that this Court lacked subject matter jurisdiction over North Carolina's claim. Defendant's Motion to Dismiss, filed April 3, 2006, at 1. Specifically, TVA asserted that North Carolina's suit was barred by (1) the discretionary function doctrine, (2) the Supremacy Clause, and (3) the holding of Ferris v. Wilbur, 27 F.2d 262 (4th Cir. 1928). Memorandum and Order, filed July 21, 2006, at 1. This Court issued an order denying TVA's motion to dismiss but later certified the order for immediate appeal to the Fourth Circuit, pursuant to 28 U.S.C. § 1292(b). Id. at 25; Order Certifying for Immediate Appeal, filed September 27, 2006, at 7. On October 31, 2007, the Fourth Circuit heard oral argument on TVA's appeal; on January 31, 2008, the Fourth Circuit affirmed this Court's order denying TVA's motion to dismiss. North Carolina ex rel. Cooper v. TVA, 515 F.3d 344 (4th Cir.2008).

While TVA's appeal was pending, the parties filed their motions for summary judgment and corresponding responses.


Summary judgment is appropriate when there is no genuine issue of material fact,

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and judgment for the moving party is warranted as a matter of law. Fed.R.Civ.P. 56(c). "A genuine issue [of fact] exists `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In considering a motion for summary judgment, the Court is required to view the facts and draw reasonable inferences in a light most favorable to the nonmoving party. Id.

By reviewing substantive law, the Court may determine what matters constitute material facts. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. "The party seeking summary judgment has the initial burden to show a lack of evidence to support the nonmoving party's case." Shaw, supra. If that showing is made, the burden then shifts to the nonmoving party who must convince the court that a triable issue does exist. Id. A "mere scintilla of evidence" is not sufficient to defeat a motion for summary judgment. Id.

Accordingly, in considering the facts of the instant case for purposes of the instant motions, the Court will view the record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).


A. North Carolina's Motion for Partial Summary Judgment

North Carolina has requested summary judgment as to several of TVA's fourteen defenses.

1. TVA's Third Defense

In the third of its fourteen defenses, TVA argues that North Carolina "is not authorized to bring a suit to abate a public nuisance under the laws of Alabama, Kentucky, or Tennessee." Defendant's Answer to Complaint, filed August 7, 2006, at 6-7 (citations omitted). North Carolina argues that a state has authority "to represent the interests of its citizens by seeking to enjoin public nuisances, including those originating in neighboring states." Plaintiffs Memorandum of Law in Support of Motion for Summary Judgment, filed July 7, 2007, at 6. As such, North Carolina argues, its lawsuit is brought both on the State's own behalf and also pursuant to the doctrine of parens patriae, which is "a standing doctrine under which a state may under proper circumstances sue on behalf of its citizens when a separate quasi-sovereign interest ... is at stake." United States v. Johnson, 114 F.3d 476, 481 (4th Cir.1997).

The Supreme Court has long authorized lawsuits by sovereign states seeking to address the problems caused by interstate pollution. See generally, e.g., New Jersey v. City of New York, 283 U.S. 473, 476, 51 S.Ct. 519, 75 L.Ed. 1176 (1931) (enjoining defendant from "dumping noxious, offensive and injurious materials — all of which are for brevity called garbage — into the ocean ... great quantities of the same ... being cast upon the beaches belonging to [New Jersey]"); Georgia v. Tennessee Copper Co., 206 U.S. 230, 231, 27 S.Ct. 618, 51 L.Ed. 1038 (1907) (enjoining defendant from "discharging noxious gas from their works in Tennessee over [Georgia's] territory"); Missouri v. Illinois, 180 U.S. 208, 212, 21 S.Ct. 331, 45 L.Ed. 497 (1901) (allowing Missouri to seek injunction against Illinois' discharge of "sewage matter and poisonous filth" into the Chicago River and Lake Michigan, and eventually

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into the Mississippi River). "Congress has not ... found a uniform, nationwide solution to all aspects of this problem [of air pollution] and, indeed, has declared that the prevention and control of air pollution at its source is the primary responsibility of States and local government." Washington v. Gen. Motors Corp., 406 U.S. 109, 114, 92 S.Ct. 1396, 31 L.Ed.2d 727 (1972) (citation and internal quotation marks omitted).

Federal regulatory pollution control schemes, such as the one set forth in the Clean Air Act (CAA), 42 U.S.C. §§ 7401 to 7671 q, form one principal means by which state and local authorities may act on their responsibilities as described in General Motors.1 A second, entirely separate method is to proceed under state law. The CAA specifically anticipates this method in its savings clause, 42 U.S.C. § 7604(e). See Her Majesty the Queen in Right of the Province of Ontario v. City of Detroit, 874 F.2d 332, 343 (6th Cir.1989) (holding that the CAA savings clause allows state law actions to abate air pollution, notwithstanding the existence of federal laws and standards governing air quality); see also Int'l Paper Co. v. Ouellette, 479 U.S. 481, 492, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987) (holding that the Clean Water Act's savings clause, 33 U.S.C. § 1365(e), allows state law actions to abate water pollution); Gutierrez v. Mobil Oil Corp., 798 F.Supp. 1280, 1282-83 (W.D.Tex.1992) (noting the similar function of the savings clauses in the Clean Water Act and the CAA).

When considering such state law claims, it is well established that the Court must apply the law of the state in which the pollution source is located, rather than the law of the state that is affected by the pollution. Int'l Paper, 479 U.S. at 487, 107 S.Ct. 805. In this case, North Carolina alleges violations of the public nuisance law under Alabama's statutory and common law, Kentucky's common law, and Tennessee's common law. See Complaint, supra, ¶¶ 22-24.

The crux of TVA's third defense, however, is that the laws of these three states (hereinafter, the "source states") do not permit foreign sovereigns, such as North Carolina, to bring causes of action alleging public nuisance. Rather, TVA alleges, the source states' laws require that public nuisance lawsuits may only be brought by (1) the Attorney General or other arm of the state in which the alleged nuisance is located, or (2) an individual who has sustained a special harm due to the alleged nuisance, different in kind from that harm suffered by the general public. Defendant's Response to Plaintiffs Motion for Partial Summary Judgment, filed July 19, 2007, at 1-3; see also Loiver Commerce Ins., Inc v. Halliday, 636 So.2d 430, 431 (AJa.Civ. App.1994) (holding that public nuisance actions may be brought by the state and by individuals who have sustained a special injury); Hancock v. Terry Elkhorn Mining Co., Inc., 503 S.W.2d 710, 720 (Ky. 1973) (holding that the state Attorney General may...

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