Wednesday, July 28, 2010

On Guy Tower

When The Virginia Bar Association hired Guy Tower as executive director, they got the right man, and so it's sad news to read that he is retiring, but happy news for him. Not many people can do so many things well, as the job requires and as he did, with good humor. I'm glad my time on the VBA board was while he was there.

Here he is on the left, with three other of my favorites - Patricia Epps, Judge Winship Tower, and John Epps.

Tuesday, July 27, 2010

NC nuisance law cannot be applied to TVA plants in Tennessee

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."

Constitutional challenge to FOIA revived

The Virginia Freedom of Information Act limits the right of access to the public records of state and local government in Virginia to the citizens of the Commonwealth. Today in McBurney v. Cuccinelli, the Fourth Circuit in a somewhat split decision reversed the E.D. Va., concluding that some of the out-of-state plaintiffs have shown they have standing to bring a constitutional challenge to this limitation - but not against Mr. Cuccinelli.