Yesterday in State of North Carolina v. TVA, the Fourth Circuit in an opinion by Judge Wilkinson joined by Judges Shedd and Niemeyer held that North Carolina's common law of nuisance could not be applied to require the Tennessee Valley Authority to spend a billion dollars to retrofit its coal-powered generation plants in East Tennessee to comply with North Carolina's emissions laws.
Judge Wilkinson wrote, by way of introduction:
"If allowed to stand, the injunction would encourage courts to use vague public nuisance standards to scuttle the nation’s carefully created system for accommodating the need for energy production and the need for clean air. The result would be a balkanization of clean air regulations and a confused patchwork of standards, to the detriment of industry and the environment alike. Moreover, the injunction improperly applied home state law extraterritorially, in direct contradiction to the Supreme Court’s decision in International Paper Co. v. Ouellette, 479 U.S. 481 (1987). Finally, even if it could be assumed that the North Carolina district court did apply Alabama and Tennessee law, it is difficult to understand how an activity expressly permitted and extensively regulated by both federal and state government could somehow constitute a public nuisance. For these reasons, the judgment must be reversed."