|January 16, 2009|
Schiff Hardin Environmental Update:
On January 13, 2009, a federal judge in North Carolina ruled in favor of the State of North Carolina in a public nuisance case and ordered the Tennessee Valley Authority (TVA) to install and continuously operate scrubbers and selective catalytic reduction systems (SCRs) at four coal-fired electric generating power plants in Tennessee and Alabama. (North Carolina v. TVA, W.D.N.C., Case No. 1:06CV20). The cost for TVA to comply with the court's order is estimated at $1 billion.
The State of North Carolina initially filed the lawsuit in 2006 against TVA alleging that pollution from eleven of TVA's coal-fired power plants created a public nuisance in the State by threatening the health of North Carolina residents, harming the State's economy and degrading the environment. TVA, a federal government agency, operates the largest public electricity generating system in the nation. The State of North Carolina asked the court to grant injunctive relief that would mandate pollution control equipment at TVA's power plants as necessary to abate the public nuisance.
At trial, TVA did not deny that some of its emissions entered North Carolina, but TVA contested the amount of and harm caused by such emissions. TVA further suggested that air pollution in North Carolina is largely attributable to North Carolina's own electric utilities, other industrial sources, and mobile sources such as automobiles and trucks. TVA cited its efforts to reduce air emissions from its plants as evidence that emissions from TVA's plants that do enter North Carolina do not do so in unreasonable amounts. TVA also filed motions to dismiss the case on the grounds that the court lacked subject matter jurisdiction and that the Supremacy Clause of the U.S. Constitution barred the State's claims. The court disagreed with each of these arguments.
The court noted that the ancient common law of public nuisance is not the ordinary means by which interstate air pollution from power plants is addressed and that the U.S. Environmental Protection Agency has traditionally been the chief arbiter of interstate air pollution concerns. The court, however, found that the administrative route has not, thus far, resulted in the reduction of emissions from TVA's upwind sources that North Carolina is ultimately seeking. The court held that, while TVA's generation of power at low cost to the consuming public has high social utility, North Carolina presented sufficient evidence that emissions from TVA's power plants unreasonably interfere with the rights of North Carolina citizens. The court, therefore, granted an injunction requiring the installation and continuous year-round use of scrubbers and SCRs at four of TVA coal-fired power plants. While the State of North Carolina's complaint requested that the court order injunctive relief with respect to eleven TVA power plants, the court granted the request with respect to only the four TVA plants located within 100 miles of North Carolina. The court concluded that there was insufficient evidence that emissions from the other TVA plants have an unreasonable impact on health, safety or welfare in North Carolina, and therefore the injunction did not reach those plants.
This decision may set the potential precedent for states to bring common law public nuisance actions that seek judicial relief to abate air emissions from stationary sources located in upwind states, although the decision is subject to an appeal.
RECENT ENVIRONMENTAL PUBLICATIONS
"Federal Regulation of Coal Ash Waste Foreseeable," Environmental Update (January 13, 2009)
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