North Carolina v. Tennessee Valley Authority, 1:06CV20.

CourtUnited States District Courts. 4th Circuit. Western District of North Carolina
Citation593 F.Supp.2d 812
Decision Date13 January 2009
Docket NumberNo. 1:06CV20.,1:06CV20.
PartiesState of NORTH CAROLINA, ex rel. Roy COOPER, Attorney General, Plaintiff, v. TENNESSEE VALLEY AUTHORITY, Defendant.
593 F.Supp.2d 812
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.
January 13, 2009.

Page 813


Page 814

Michael David Goodstein, Anne Elizabeth Lynch, Stacey Heather Myers, Resolution Law Group, Richard E. Ayres, Ayres Law Group, Washington, DC, James C. Gulick, Marc Bernstein, N.C. Department of Justice, Raleigh, NC, Robert L. Gonser, Resolution Law Group, P.C., Lafayette, CA, Sueanna Peeler Sumpter, N.C. Dept. of Justice, Asheville, NC, for Plaintiff.

Frank Hilton Lancaster, Albert Jackson Woodall, Thomas Fleming Fine, TVA Office of General Counsel, Harriet Andrea Cooper, Tennessee Valley Authority, Maria Victoria Gillen, William Thaddeus Terrell, 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 came on for trial before the Court without a jury. The Court now enters its findings of fact, conclusions of law, and final judgment in this matter.

Page 815


Plaintiff North Carolina, on behalf of its citizens, filed the instant action in public nuisance against Defendant Tennessee Valley Authority (TVA) in January 2006. The complaint cites urgent environmental concerns in this state, allegedly caused by air pollution emitted by TVA's coal-fired power plants in other states. North Carolina contends, and TVA denies, that airborne particles from TVA's electricity generating plants enter North Carolina in unreasonable amounts, thereby threatening the health of millions of people, the financial viability of an entire region, and the beauty and purity of a vast natural ecosystem. North Carolina further alleges, and TVA denies, that TVA's air pollution costs the state government and its citizens billions of dollars every year in health care expenses, sick days, and lost tourism revenue; and that there are also less quantifiable costs to be considered, stemming from the loss of human, animal, and plant life and irreversible environmental damage in protected wilderness areas.

TVA does not deny that some of its emissions enter North Carolina, but disputes the amount of such emissions and suggests that the adverse environmental effects experienced by North Carolina are largely attributable to this state's own electric utilities and other industrial sources, or to private sources such as automobile and truck emissions. Further, as evidence that TVA is acting reasonably, TVA cites its millions of customers' undeniable need for—and expectation of—reliable, inexpensive sources of energy, deployed to serve the homes and businesses of the rapidly growing population in the southeastern United States. Finally, TVA points to its own efforts to reduce its plants' emissions, as further evidence that those TVA emissions which do enter North Carolina do not do so in unreasonable amounts.

The parties do agree on one thing: the pollution controls that North Carolina contends are necessary to abate TVA's alleged public nuisance are very costly. North Carolina's experts contend the relief it seeks would cost $3 billion. TVA's experts put that figure at $5 billion. TVA's customers, spread throughout seven states (including North Carolina itself), would inevitably bear the vast majority of such costs.

The ancient common law of public nuisance is not ordinarily the means by which such major conflicts among governmental entities are resolved in modern American governance. Instead, the federal executive branch (through its arm, the Environmental Protection Agency, or EPA) has traditionally been the chief arbiter of interstate air pollution concerns. The executive branch's authority to govern in this arena dates to at least 1955, when Congress passed clean air legislation directing the Surgeon General and the Secretary of Health, Education, and Welfare to work with state and local authorities in mitigating "the dangers to public health and welfare, injury to agricultural crops and livestock, damage to and deterioration of property, and hazards to air and ground transportation from air pollution." Act of July 14, 1955, Pub. L. No. 360-159, 69 Stat. 322, (codified as amended at 42 U.S.C. § 7401 et seq.). This brief statute, the genesis of the modern Clean Air Act (CAA), has since evolved into an elaborate scheme of regulation and administrative review intended as "a lengthy, detailed, technical, complex, and comprehensive response to a major social issue." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 848, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

Page 816

Indeed, even in the present dispute, North Carolina began its pursuit of relief by utilizing the normal administrative channels established by the CAA. See North Carolina v. Envtl. Prot. Agency, 531 F.3d 896, 905 (D.C.Cir.2008) (per curiam); Rulemaking on Section 126 Petition from North Carolina to Reduce Interstate Transport of Fine Particulate Matter and Ozone, 71 Fed.Reg. 25,328 (Envtl. Prot. Agency Apr. 28, 2006). Although the administrative route has certainly borne some interesting fruit,1 it has not, thus far, resulted in the reduction of emissions from upwind, out-of-state sources that North Carolina is ultimately seeking.2

North Carolina now turns to the federal courts as the final source of relief in its efforts to curb the out-of-state air pollution which the state believes clouds its scenic vistas, poisons its wildlife, and sickens its people. The undersigned has previously held that the CAA's comprehensive scheme for the adjudication of interstate pollution disputes does not impair the inherent equitable powers of this Court to address North Carolina's concerns. See North Carolina v. Tenn. Valley Auth., 549 F.Supp.2d 725, 729 (2008) (discussing CAA savings clause, 42 U.S.C. § 7604(e), which permits actions to abate air pollution pursuant to state law doctrines, such as public nuisance). Indeed, the judiciary has always played a significant role in the abatement of public nuisances, particularly when such lawsuits are brought by the United States or by sovereign states. See Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 603-05, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982) (listing and discussing parens patriae cases involving suits to enjoin public nuisance). See generally Bradford Mank, Should States Have Greater Standing Rights Than Ordinary Citizens?: Massachusetts v. EPA's New Standing Test for States, 49 Wm. & Mary L.Rev. 1701,

Page 817

1756-62 (2008) (discussing the relaxed standing requirements for parens patriae suits by states seeking to enjoin public nuisance). This is partly because of "the extraordinary weight courts of equity place upon the public interests in a suit involving more than a mere private dispute, and ... the deference courts afford the political branches in identifying and protecting the public interest." United States v. Marine Shale Processors, 81 F.3d 1329, 1359 (5th Cir.1996) (internal citation omitted); see also United Steelworkers of Am. v. United States, 361 U.S. 39, 60-61, 80 S.Ct. 177, 4 L.Ed.2d 169 (1959) (Frankfurter, J., concurring) (discussing the judiciary's historic use of equity powers, at the request of a sovereign, to enjoin activity found to be a public nuisance).

For this reason, "unless Congress has narrowed an equity court's flexibility in the context of a particular statutory scheme, the issuance of an injunction remains an exercise of the district court's discretion." Marine Shale Processors, 81 F.3d at 1359; see also Georgia v. Tenn. Copper Co., 206 U.S. 230, 238, 27 S.Ct. 618, 51 L.Ed. 1038 (1907) (in the context of an environmental suit by a state to protect the public interest, refusing to abandon "the considerations that equity always takes into account"). Indeed, this Court is required to exercise such equitable discretion, provided it has the jurisdiction to do so. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L.Ed. 257 (1821) ("We have no more right to decline the exercise of jurisdiction that is given, than to usurp that which is not given. The one or the other would be treason to the constitution.").

While it cannot be denied that the federal judiciary, including this Court, is a proper forum for the adjudication of North Carolina's claims, it is also true that the public nuisance principles which this Court is bound to apply are less well-adapted than administrative relief to the task of implementing the sweeping reforms that North Carolina desires. As explained further below, the elements of public nuisance include strict requirements as to both causation and unreasonableness of the harm. Both these elements have played a significant role in the Court's analysis of the facts presented by the parties in this case, and in the crafting of the injunctive remedies set forth herein. Although the parties have indicated—and the Court does not disagree—that a system-wide cap on TVA is both more efficient from a business standpoint and also more effective at diminishing overall pollution, the restrictive nature of public nuisance doctrines does not allow such a remedy, at least on the facts presented here. Consequently the Court, of necessity, adopted a plant-byplant analysis, as set forth below.


On January 30, 2006, North Carolina filed the instant complaint against TVA, alleging that TVA's coal-fired power plants were and are a public nuisance. The complaint seeks injunctive relief as well as attorney's fees and costs. Complaint, filed January 30, 2006, at 1.

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...

To continue reading

Request your trial
5 cases
  • United States v. Ameren Mo., 4:11 CV 77 RWS
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • 30 Septiembre 2019
    ..."EPA does not purport to set the NAAQS at a level which would entirely preclude negative health outcomes." North Carolina v. TVA, 593 F. Supp. 2d 812, 822 n.6 (W.D.N.C. 2009), rev'd on other 421 F.Supp.3d 817 grounds 615 F.3d 291 (4th Cir. 2010). As even Ameren's expert Dr. Fraiser agrees, ......
  • Connecticut v. American Elec. Power Co., Inc., Docket No. 05-5104-cv.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 21 Septiembre 2009
    ...whether the parties have stated a claim under the federal common law of nuisance.29 See, e.g., North Carolina v. Tenn. Valley Auth., 593 F.Supp.2d 812, 829-34 (W.D.N.C.2009) (in adjudicating state law public nuisance claim against TVA for environmental and health effects allegedly caused by......
  • Attorney Gen. v. Tenn. Valley Auth., 09-1623.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 26 Julio 2010
    ...where TVA operates tend to cause emissions to move eastward into North Carolina and other states. North Carolina v. Tenn. Valley Auth., 593 F.Supp.2d 812, 825 (W.D.N.C.2009). Although there are lengthy Clean Air Act provisions and regulations controlling such interstate emissions, North Car......
  • N.C. ex rel. Cooper v. TVA
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 26 Julio 2010
    ...TVA operates tend to cause emissions to move eastward into North Carolina and other states. North Carolina v. Tenn. Valley Auth., 593 F. Supp. 2d 812, 825 (W.D.N.C. 2009). Although there are lengthy Clean Air Act provisions and regulations controlling such interstate emissions, North Caroli......
  • Request a trial to view additional results
2 books & journal articles
  • State and Regional Control of Geological Carbon Sequestration (Part I)
    • United States
    • Environmental Law Reporter No. 41-4, April 2011
    • 1 Abril 2011
    ...54 Alb. L. Rev. 359, 362 (1990). 306. Prosser, supra note 293, §90, 643. 307. North Carolina ex rel. Cooper v. Tenn. Valley Auth., 593 F. Supp. 2d 812, 829-34 (W.D.N.C. 2009). 308. Tennessee Valley Authority, TVA Files Appeal in North Carolina Lawsuit (May 29, 2009), available at http://www......
  • Challenges Plaintiffs Face in Litigating Federal Common-Law Climate Change Claims
    • United States
    • Environmental Law Reporter No. 40-9, September 2010
    • 1 Septiembre 2010
    ...kinds of suits in any federal GHG legislation. Even in areas where EPA has been 89. See, e.g. , North Carolina v. Tenn. Valley Auth., 593 F. Supp. 2d 812, 39 ELR 20015 (W.D.N.C. 2009), rev’d , 2010 WL 2891572 (July 26, 2010). In reversing, the Fourth Circuit held that emissions legally perm......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT