Arguing that a federal appeals court has raised an environmental threat that could linger “for generations to come,” the state of North Carolina on Wednesday asked for a new look at states’ options for limiting airborne pollution coming across their borders from out-of-state power plants.   Its plea for rehearing came in the Fourth Circuit Court in the case of North Carolina v. Tennessee Valley Authority (Circuit docket 09-1623) — a case that attracted 62 friends-of-court, including 24 states, reflecting widespread interest in it.  The petition for rehearing en banc is here and the Fourth Circuit decision being challenged is here.

At issue is a federal judge’s order requiring TVA — the government’s huge power-generating project — to spend upwards of $1 billion to install new pollution-control equipment on four coal-fired power plants in Tennessee and Alabama.  Those plants are within 100 miles of North Carolina’s border, and that state contended that its citizens and its environment are seriously threatened by particulate matter and ozone that is spread downwind from the four plants’ smokestacks.

Relying on the anti-nuisance laws of those states, North Carolina’s lawsuit in a federal court in North Carollina sought an order aimed at all 11 of TVA’s plants that burn coal in their generators.  The federal judge, however, concluded after a trial that the order for immediate installation of new control equipment should be confined to the four plants nearest to North Carolina.

The Fourth Circuit’s three-judge panel, in its ruling July 26 overturning that injunction, said that the court order “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.”

Urging en banc rehearing, the state argued that the Circuit Court decision conflicts directly with a Supreme Court ruling in 1987 — International Paper Co. v. Ouellette — holding that, when pollution crosses state lines, a lawsuit based on common-law nuisance may be pursued, provided it is based on the law of the pollution-originating state.

As a result of the ruling, the petition contended, “the protections that Congress and the United States Supreme Court recognized as essential to supplement the Clean Air Act have been lost within this Circuit….The outcome of the present appeal will shape the legal landscape regarding interstate pollution and affect the environment and public health of our Nation for generations to come.”

Posted in Cases in the Pipeline