State v. Valley

• Decision Date: 21 July 2006
• Docket Number: No. CIV. 1:06CV20.,CIV. 1:06CV20.
• Court: U.S. District Court — Western District of North Carolina
• Parties: State of NORTH CAROLINA, ex rel., Roy Cooper, Attorney General, Plaintiff, v. TENNESSEE VALLEY AUTHORITY, Defendant.

439 F.Supp.2d 486

State of NORTH CAROLINA, ex rel., Roy Cooper, Attorney General, Plaintiff, v. TENNESSEE VALLEY AUTHORITY, Defendant.

No. CIV. 1:06CV20.

United States District Court, W.D. North Carolina, Asheville Division.

July 21, 2006.

COPYRIGHT MATERIAL OMITTED

Michael David Goldstein, Resolution Law Group, PC, Washington, DC, James C. Gulick, N.C. Department of Justice, Raleigh, NC, Marc Bernstein, NC Dept. of Justice, Environmental Division, Raleigh, NC, Richard E. Ayres, Ayres Law Group, Washington, DC, Sueanna Peeler Sumpter, NC Dept. of Justice, Asheville, NC, for Plaintiff.

Frank Hilton Lancaster, Joshua Andrew Wolfe, TVA Office of General Counsel, Knoxville, TN, Harriet Andrea Cooper, Tennessee Valley Authority, Knoxville, TN, Maria Victoria Gillen, Knoxville, TN, for Defendant.

MEMORANDUM AND ORDER

THORNBURG, District Judge.

THIS MATTER is before the Court on the Defendant's motion to dismiss, Plaintiff's response in opposition, and Defendant's reply thereto.

I. PROCEDURAL HISTORY

On January 30, 2006, the Plaintiff State of North Carolina through its Attorney General filed this complaint against the Tennessee Valley Authority ("TVA") "to address emissions of air pollution from TVA's coalfired electric generating units ("EGU's") installed in electric generating stations ("power plants") located in Tennessee, Alabama, and Kentucky[.]" Complaint, filed January 30, 2006, ¶ 1. Plaintiff 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 State seeks injunctive relief "to abate the harm caused by TVA's emissions .. . and seeks its fees and costs incurred in this action." Id.

On April 3, 2006, TVA filed its motion to dismiss and supporting brief pursuant to Fed.R.Civ.P. 12(b)(1) on the grounds that Plaintiff's claims "are not justiciable under controlling authority of the [Fourth Circuit], the discretionary function doctrine, and the Supremacy Clause of the United States Constitution." Tennessee Valley Authority's Motion to Dismiss ("Defendant's Motion"), filed April 3, 2006, at 1; see also, Memorandum of Law in Support of Defendant's Motion to Dismiss ("Defendant's Memorandum"), filed April 3, 2006. Plaintiff filed its responsive brief on April 20, 2006, and the Defendant filed a reply brief May 4, 2006. The matter is now ripe for disposition.

II. STANDARD OF REVIEW

The Defendant's motion under Rule 12(b)(1) challenges the authority of this Court "to adjudicate the type of controversy involved in the action." Carlisle v. United States, 517 U.S. 416, 434-35, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996) (internal quotations and citations omitted). Subject matter jurisdiction may not be waived, and if the Defendant here is correct, the action must be dismissed. Moodie v. Fed. Reserve Bank of New York, 58 F.3d 879, 882 (2d Cir.1995). Where, as here, jurisdiction is challenged on the basis that the "complaint simply fails to allege facts upon which subject matter jurisdiction can be based ... all the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as [it] would receive under a Rule 12(b)(6) consideration." Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). Additionally, in ruling on the motion the Court may consider the pleadings as evidence on the issue and look beyond them without converting the motion to one for summary judgment. Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir.2004).

III. ANALYSIS

TVA asserts that the State of North Carolina has no justiciable claims against it for alleged air pollution. Early Twentieth Century precedent suggests otherwise. Cross boundary disputes of this or a similar nature were found to be justiciable long before clean air and water acts were enacted by Congress.

The state owns very little of the territory alleged to be affected, and the damage to it capable of estimate in money, possibly, at least, is small. This is a suit by a state for an injury to it in its capacity of quasi-sovereign. In that capacity the state has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.

State of Georgia v. Tennessee Copper Co., 206 U.S. 230, 237, 27 S.Ct. 618, 51 L.Ed. 1038 (1907).

When the states by their union made the forcible abatement of outside nuisances impossible to each, they did not thereby agree to submit to whatever might be done. They did not renounce the possibility of making reasonable demands on the ground of their still remaining quasisovereign interests; and the alternative to force is a suit in this court.

Id. (citing Missouri v. Illinois, 180 U.S. 208, 241, 21 S.Ct. 331, 45 L.Ed. 497 (1901) (bill in equity to prevent discharge of sewers into the Mississippi River)); see also, Louisiana v. Texas, 176 U.S. 1, 20 S.Ct. 251, 44 L.Ed. 347 (1900) (parens patriae action could rest on assertion of a "quasisovereign" interest).

Defendant Tennessee Valley Authority asserts three bases upon which it contends the instant matter is non-justiciable: (a) direct precedent from the Fourth Circuit Court of Appeals in Ferris v. Wilbur, 27 F.2d 262 (4th Cir.1928), prohibits this action; (b) the "discretionary function" doctrine bars North Carolina's nuisance claim; and (c) Plaintiff's claim is precluded by the Supremacy Clause of the United States Constitution. See, Defendant's Motion, at 1; Defendant's Memorandum, at 9, 11, 22.

A. Ferris v. Wilbur

The Court finds Defendant's reliance on Ferris misplaced. See, Defendant's Memorandum, at 9-11; Reply Brief in Support of Tennessee Valley Authority's Motion to Dismiss ("Defendant's Reply"), filed May 4, 2006, at 8-15. Ferris involved a nuisance law challenge to the location of a naval mine depot. The plaintiffs in Ferris sought to prohibit the use of a particular parcel of land as a depot even though the federal government had specifically designated the land for such use and appropriated funds therefor. In affirming the dismissal of the plaintiffs' case, the Fourth Circuit stated that "it is unthinkable that the courts should enjoin as a nuisance the use of government property by a coordinate branch of the government, the executive, where such use is authorized by a valid act of the other coordinate branch, the legislative." Ferris, 27 F.2d at 264-65.

Unlike in Ferris, however, this case does not involve a plaintiff seeking to obtain an injunction that would prohibit the use of particular land. Plaintiff here does not seek an injunction forcing TVA to stop operating coal-fired electric generating units, or an injunction forcing TVA to stop operating such units in a particular place. Rather, Plaintiff seeks only to alter the manner in which operations on particular land are conducted. In other words, whereas the plaintiffs in Ferris argued that the mere existence of the naval mine depot in the designated location constituted a nuisance and should be enjoined, Plaintiff in this case argues simply that the manner in which TVA is carrying out its operation is a nuisance. Such a challenge is not precluded by Ferris. See, e.g., Bd. of Supervisors of Fairfax County v. United States, 408 F.Supp. 556, 560-61 (E.D.Va.1976), appeal dismissed, 551 F.2d 305 (4th Cir.1977) ("This case, then, is unlike Ferris v. Wilbur. . . where the Court refused to enjoin the use of certain land as a munition depot. In Wilbur, it was the location of an activity that was drawn in issue and not the manner in which the activity was pursued.").

B. Discretionary Function Doctrine

Defendant next contends that the "discretionary function" doctrine prohibits North Carolina's claim. TVA asserts that because it is a governmental agency, and its decisions regarding the level of pollutants involve a level of choice and are made after consideration of competing policies, it is not subject to suit for such decisions.

1. Express Limitations on Suability

TVA is a hybrid creature. It was created by Congressional charter in 1933, yet structured to operate much like a private corporation. See, 16 U.S.C. § 831 (creating "a body corporate by the name of the `Tennessee Valley Authority'"); Natural Res. Def. Council, Inc. v. Tennessee Valley Auth., 459 F.2d 255, 257 (2d Cir. 1972) ("[T]he TVA operates in much the same way as an ordinary business corporation[.]"); Alabama ex rel. Graddick v. Tennessee Valley Auth., 636 F.2d 1061, 1066 (5th Cir.1981) (Congress intended the TVA "`have much of the essential freedom and elasticity of a private business corporation'" (quoting H.R.Rep. No. 130, 73d Cong., 1st Sess. 19 (1933))). In establishing this hybrid entity, Congress endowed TVA with some features governmental in nature, yet deprived it the benefit of others. See, 16 U.S.C. § 831c(h) (granting TVA power "to exercise the right of eminent domain"). One of the governmental features specifically denied to TVA was the right to sovereign immunity, which Congress withheld by virtue of the TVA Act's "sue-and-be-sued" clause. 16 U.S.C. § 831c(b) (providing that TVA "[m]ay sue and be sued in its corporate name"). Such clauses have long been recognized as broad waivers of sovereign immunity, and the "sue-and-be-sued" clause was specifically intended to be a broad waiver when included in the TVA Act. See, e.g., F.H.A. v. Burr, 309 U.S. 242, 245, 60 S.Ct. 488, 84 L.Ed. 724 (1940); Queen v. Tennessee Valley Auth., 689 F.2d 80, 85 (6th Cir.1982) ("The legislative history of the TVA Act, 16 U.S.C. § 831 et seq., indicates that this language [in § 831c(b)] was intended to be a broad waiver of...