PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STATE OF NORTH CAROLINA, ex rel. 

Roy Cooper, Attorney General,

Plaintiff-Appellee,

v.

TENNESSEE VALLEY AUTHORITY,

Defendant-Appellant,

STATE OF ALABAMA,

Intervenor,

COMMONWEALTH OF KENTUCKY;

STATE OF LOUISIANA; STATE OF

NORTH DAKOTA; STATE OF SOUTH

DAKOTA; STATE OF UTAH; STATE OF  No. 09-1623

WYOMING; GERARD V. BRADLEY;

RONALD A. CASS; JAMES L.

HUFFMAN; F. SCOTT KIEFF; JOHN J.

PARK, JR.; JIM COOPER,

Representative; PHIL ROE,

Representative; STEVE COHEN,

Representative; MARSHA

BLACKBURN, Representative;

LINCOLN DAVIS, Representative;

ZACH WAMP, Representative; BART

GORDON, Representative; JOHN

TANNER, Representative; PARKER

GRIFFITH, Representative; TRAVIS

CHILDERS, Representative;

CHAMBER OF COMMERCE OF THE 

Certiorari dismissed, July 22, 2011
UNITED STATES OF AMERICA; 

NATIONAL ASSOCIATION OF

MANUFACTURERS; AMERICAN

PETROLEUM INSTITUTE; PUBLIC

NUISANCE FAIRNESS COALITION;

UTILITY AIR REGULATORY GROUP;

AMERICAN FOREST AND PAPER

ASSOCIATION; STATE OF TENNESSEE,

Amici Supporting Appellant,

ENVIRONMENTAL LAW PROFESSORS;

AMERICAN LUNG ASSOCIATION;

AMERICAN THORACIC SOCIETY;

NATIONAL PARKS CONSERVATION

ASSOCIATION; NATURAL RESOURCES 

DEFENSE COUNCIL; SIERRA CLUB;

STATE OF CALIFORNIA; STATE OF

CONNECTICUT; STATE OF DELAWARE;

STATE OF ILLINOIS; STATE OF IOWA;

STATE OF MAINE; STATE OF

MARYLAND; STATE OF

MASSACHUSETTS; STATE OF

MISSISSIPPI; STATE OF NEW

HAMPSHIRE; STATE OF NEW JERSEY;

STATE OF NEW MEXICO; STATE OF

NEW YORK; STATE OF OKLAHOMA;

STATE OF RHODE ISLAND; STATE OF

VERMONT,

Amici Supporting Appellee. 

Appeal from the United States District Court

for the Western District of North Carolina, at Asheville.

Lacy H. Thornburg, District Judge.

(1:06-cv-00020-LHT)

2 STATE OF NORTH CAROLINA v. TVA
Argued: May 14, 2010

Decided: July 26, 2010

Before WILKINSON, NIEMEYER and SHEDD,

Circuit Judges.

Reversed and remanded by published opinion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge

Shedd joined.

COUNSEL

ARGUED: Harriet A. Cooper, TENNESSEE VALLEY

AUTHORITY, Knoxville, Tennessee, for Appellant. Kevin

Christopher Newsom, BRADLEY ARANT BOULT CUMMINGS, LLP, Birmingham, Alabama, for Intervenor. Christopher Grafflin Browning, Jr., NORTH CAROLINA

DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for

Appellee. ON BRIEF: F. William Brownell, Makram B.

Jaber, David J. DePippo, HUNTON & WILLIAMS LLP,

Washington, D.C.; Maureen H. Dunn, General Counsel,

Frank H. Lancaster, Senior Attorney, Maria V. Gillen, Office

of the General Counsel, TENNESSEE VALLEY AUTHORITY, Knoxville, Tennessee, for Appellant. Michael D. Goodstein, Stacey H. Myers, Anne E. Lynch, HUNSUCKER

GOODSTEIN & NELSON P.C., Washington, D.C.; Richard

E. Ayres, AYRES LAW GROUP, Washington, D.C.; James

C. Gulick, Senior Deputy Attorney General, Marc Bernstein,

Special Deputy Attorney General, NORTH CAROLINA

DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for

Appellee. Troy King, Attorney General, Corey Maze, Solicitor General, William G. Parker, Jr., Assistant Attorney General, STATE OF ALABAMA, OFFICE OF THE

STATE OF NORTH CAROLINA v. TVA 3
ATTORNEY GENERAL, Montgomery, Alabama; Brian M.

Vines, BRADLEY ARANT BOULT CUMMINGS, LLP, Birmingham, Alabama, for Intervenor. Jack Conway, Attorney

General, Tad Thomas, Assistant Deputy Attorney General,

COMMONWEALTH OF KENTUCKY, OFFICE OF THE

ATTORNEY GENERAL, Frankfort, Kentucky, for the Commonwealth of Kentucky; James D. "Buddy" Caldwell, Attorney General, STATE OF LOUISIANA, OFFICE OF THE

ATTORNEY GENERAL, Baton Rouge, Louisiana, for the

State of Louisiana; Wayne Stenehjem, Attorney General,

STATE OF NORTH DAKOTA, OFFICE OF THE ATTORNEY GENERAL, Bismarck, North Dakota, for the State of

North Dakota; Lawrence E. Long, Attorney General, Roxanne

Giedd, Assistant Attorney General, STATE OF SOUTH

DAKOTA, OFFICE OF THE ATTORNEY GENERAL,

Pierre, South Dakota, for the State of South Dakota; Mark L.

Shurtleff, Attorney General, STATE OF UTAH, OFFICE OF

THE ATTORNEY GENERAL, Salt Lake City, Utah, for the

State of Utah; Bruce A. Salzburg, STATE OF WYOMING,

OFFICE OF THE ATTORNEY GENERAL, Cheyenne, Wyoming, for the State of Wyoming, Amici Supporting Appellant.

David B. Rivkin, Jr., Lee A. Casey, Mark W. DeLaquil,

BAKER & HOSTETLER LLP, Washington, D.C., for Gerard

V. Bradley, Ronald A. Cass, James L. Huffman, F. Scott

Kieff, and John J. Park, Jr., Amici Supporting Appellant. Erik

S. Jaffe, ERIK S. JAFFE, P.C., Washington, D.C.; C. Boyden

Gray, Washington, D.C., for Jim Cooper, Phil Roe, Steve

Cohen, Marsha Blackburn, Lincoln Davis, Zach Wamp, Bart

Gordon, John Tanner, Parker Griffith, and Travis Childers,

Amici Supporting Appellant. Charles H. Knauss, Michael B.

Wigmore, Robert V. Zener, Sandra P. Franco, BINGHAM

MCCUTCHEN LLP, Washington, D.C., for Chamber of

Commerce of the United States of America, National Association of Manufacturers, American Petroleum Institute, Public

Nuisance Fairness Coalition, Utility Air Regulatory Group,

and American Forest and Paper Association; William L.

Wehrum, HUNTON & WILLIAMS, Washington, D.C., for

4 STATE OF NORTH CAROLINA v. TVA
the Utility Air Regulatory Group; Quentin Riegel,

NATIONAL ASSOCIATION OF MANUFACTURERS,

Washington, D.C.; George S. Kopp, PUBLIC NUISANCE

FAIRNESS COALITION, Washington, D.C.; Robin S. Conrad, Amar D. Sarwal, NATIONAL CHAMBER LITIGATION CENTER, INC., for the Chamber of Commerce of the

United States; Harry M. Ng, Stacy R. Linden, Office of the

General Counsel, AMERICAN PETROLEUM INSTITUTE,

Washington, D.C., Jan Poling, Vice President, General Counsel & Corporate Secretary, AMERICAN FOREST & PAPER

ASSOCIATION, Washington, D.C., for Amici Supporting

Appellant. Robert E. Cooper, Jr., Attorney General and

Reporter, Barry Turner, Deputy Attorney General, OFFICE

OF THE TENNESSEE ATTORNEY GENERAL AND

REPORTER, Nashville, Tennessee, for the State of Tennessee, Amicus Supporting Appellant and Intervenor. Patrick

Parenteau, VERMONT LAW SCHOOL, Environmental and

Natural Resources Law Clinic, South Royalton, Vermont, for

Environmental Law Professors, Amicus Supporting Appellee.

Jamie Gibbs Pleune, Staff Attorney, Hope M. Babcock,

Senior Attorney/Director, GEORGETOWN UNIVERSITY

LAW CENTER, Institute for Public Representation, Washington, D.C., for American Lung Association and American

Thoracic Society, Amici Supporting Appellee. John T. Suttles, Jr., SOUTHERN ENVIRONMENTAL LAW CENTER,

Chapel Hill, North Carolina, for National Parks Conservation

Association, Natural Resources Defense Council, and Sierra

Club, Amici Supporting Appellee; Mitchell S. Bernard, NATURAL RESOURCES DEFENSE COUNCIL, New York,

New York, for Natural Resources Defense Council, Amicus

Supporting Appellee; Jamie Gibbs Pleune, Hope M. Babcock,

GEORGETOWN UNIVERSITY LAW CENTER, Institute

for Public Representation, Washington, D.C., for National

Parks Conservation Association, Natural Resources Defense

Council, and Sierra Club, Amici Supporting Appellee.

Andrew M. Cuomo, Attorney General, Barbara D. Underwood, Solicitor General, Katherine Kennedy, Special Deputy

STATE OF NORTH CAROLINA v. TVA 5
Attorney General, Robert Rosenthal, Assistant Attorney General, Monica Wagner, Assistant Solicitor General, STATE OF

NEW YORK, Office of the Attorney General, New York,

New York; Douglas F. Gansler, Attorney General, Steven M.

Sullivan, Solicitor General, William F. Brockman, Deputy

Solicitor General, STATE OF MARYLAND, Office of the

Attorney General, Baltimore, Maryland, for States of California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland,

Massachusetts, Mississippi, New Hampshire, New Jersey,

New Mexico, New York, Oklahoma, Rhode Island, and Vermont, Amici Supporting Appellee. 

OPINION

WILKINSON, Circuit Judge:

The Tennessee Valley Authority (TVA) appeals an injunction requiring immediate installation of emissions controls at

four TVA electricity generating plants in Alabama and Tennessee. The injunction was based on the district court’s determination that the TVA plants’ emissions constitute a public

nuisance in North Carolina. As a result, the court imposed

specific emissions caps and emissions control technologies

that must be completed by 2013.

This ruling was flawed for several reasons. 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

6 STATE OF NORTH CAROLINA v. TVA
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.

I.

The Tennessee Valley Authority (TVA) is a federal executive branch agency, established in 1933 and tasked with promoting economic development in the Tennessee Valley

region. 48 Stat. 58 (May 18, 1933). One of TVA’s "primary

objectives" is to "produce, distribute, and sell electric power."

16 U.S.C. §§ 831d(l), 831i, & 831n-4(f). As a result of this

mandate, TVA provides electricity to citizens in parts of

seven states. Much of this power is generated by eleven TVA

owned and operated coal-fired power plants located in Tennessee, Alabama, and Kentucky.

As a natural byproduct of the power generation process,

coal-fired power plants emit sulfur dioxide (SO2) and nitrous

oxides (NOx). In the atmosphere, both compounds can transform into microscopic particles known as "fine particulate

matter" or "PM

2.5

" (particulate matter less than 2.5 micrometers in diameter) that cause health problems if inhaled. When

exposed to sunlight, NOx also assists in the creation of ozone,

which is known to cause respiratory ailments.

SO

2

, NOx, PM2.5, and ozone are among the air pollutants

extensively regulated through the Clean Air Act, 42 U.S.C.

§ 7401 et seq. Pursuant to the Act, the Environmental Protection Agency (EPA) has issued numerous regulations, and

states have enacted further rules implementing the Act and the

EPA requirements. Together, these laws and regulations form

a system that seeks to keep air pollutants at or below safe

levels.

STATE OF NORTH CAROLINA v. TVA 7
In order to comply with requirements under the Clean Air

Act, a number of controls can be fitted to coal-fired power

plants to reduce the amounts of SO2 and NOx they emit and,

by extension, the amounts of PM2.5 and ozone created. One of

the ways SO2 can be reduced, for example, is by installing a

flue gas desulfurization system, or "scrubber." Scrubbers are

large chemical plants—often larger than the power plants

themselves—that remove SO

2—from plant exhaust and cost

hundreds of millions of dollars.

To control NOx emissions, plants may use selective catalytic reduction (SCR). Like scrubbers, SCRs are buildingsized plants that can cost hundreds of millions of dollars to

construct. However, they can remove approximately 90% of

the NOx from the flue gasses a coal power plant produces. NOx

emissions can also be reduced in alternative ways, such as

retrofitting plants with burners that result in lower NOx emissions, burning types of coal that have low NOx

 output, and

installing selective non-catalytic reduction (SNCR) controls.

Although SNCRs are not as effective as SCRs, removing

some 20 to 40% of NOx, they have the benefit of costing

about one-tenth as much as SCRs.

TVA has already installed numerous pollution controls at

its coal-fired plants. SO2 scrubbers already operating cover

43% of TVA’s coal-fired electricity generation capacity,

while scrubbers under construction and anticipated to be completed this year will bring that number above 50%. Nationwide, only one-third to one-half of the country’s coal plants

are equipped with scrubbers. Similarly, while one-third to

one-half of the country’s coal plants have SCRs to control

NOx, TVA has installed SCRs on 60% of its coal-fired electricity generation capacity. At several plants that do not currently have SCRs, TVA is installing SNCRs and is also

burning low NOx coal.

Unlike TVA, power plants in North Carolina historically

had not put sufficient controls on their emissions, choosing

8 STATE OF NORTH CAROLINA v. TVA
instead to purchase emissions allowances under an EPA cap

and trade program implemented by Congress in 1990 to

address acid rain. See 42 U.S.C. § 7651-7651o (Clean Air Act

Title IV, Acid Deposition Control); 42 U.S.C. § 7651b(b)

(emissions allowance transfer system under acid rain program). As a result, North Carolina decided to implement more

stringent controls on in-state coal-fired plants as a matter of

state law, as it is allowed to do under the Clean Air Act. See

42 U.S.C. § 7416. It passed the North Carolina Clean Smokestacks Act, N.C. Gen. Stat. § 143-215.107D, which requires

investor-owned public utilities that operate coal-fired generating units to reduce their emissions of NOx

 and SO

2

 to levels

even lower than those specified in EPA regulations promulgated pursuant to the Clean Air Act. N.C. Gen. Stat. § 143-

215.107D(b)-(e).

Not all emissions are generated by in-state sources, however. Prevailing high pressure weather systems in the states

where TVA operates tend to cause emissions to move eastward into North Carolina and other states. North Carolina v.

Tenn. Valley Auth., 593 F. Supp. 2d 812, 825 (W.D.N.C.

2009). Although there are lengthy Clean Air Act provisions

and regulations controlling such interstate emissions, North

Carolina chose to bring a public nuisance suit against TVA in

the Western District of North Carolina, seeking an injunction

against all eleven of TVA’s coal-fired power plants. TVA

moved to dismiss based on the discretionary function doctrine

and the Supremacy Clause. The district court denied the

motions. North Carolina v. Tenn. Valley Auth., 439 F. Supp.

2d 486 (W.D.N.C. 2006). We affirmed, holding that TVA’s

immunity was waived because the Clean Air Act required

federal entities to comply with state and local regulations "in

the same manner, and to the same extent as any nongovernmental entity," 42 U.S.C. § 7418(a), and because Congress

provided that TVA may "sue and be sued in its corporate

name," 16 U.S.C. § 831c(b). North Carolina v. Tenn. Valley

Auth., 515 F.3d 344 (4th Cir. 2008) (TVA I).

STATE OF NORTH CAROLINA v. TVA 9
Upon resolution of the interlocutory appeal, the district

court held a bench trial, North Carolina v. Tenn. Valley Auth.,

593 F. Supp. 2d at 818, at the end of which it issued an

injunction against four of the power plants. All of these plants

were within 100 miles of the North Carolina border. The

injunction required TVA to install and continuously operate

scrubbers and SCRs at each of the plants by December 31,

2013. Id. at 832. In addition to these requirements, the district

court also established a schedule of SO

2

 and NOx emissions

limits for each electric generation unit at the four plants, capping the emissions that each unit was allowed to release. Id.

at 832-33. Primarily because TVA’s seven other plants are

located farther from North Carolina, the district court concluded there was insufficient evidence that they contributed

significantly to pollution in North Carolina. Id. at 831-32. As

a result, it did not rule that they were a public nuisance. 

The cost of compliance with the district court’s injunction

against the four TVA plants is uncertain, but even North Carolina admits it will be over a billion dollars, while TVA estimates that the actual cost will be even higher. Regardless of

the actual amount, there is no question that costs will be

passed on in the form of rate increases to citizens who purchase power from TVA. TVA appealed the injunctions

against its four plants, and we granted leave to the state of

Alabama to intervene on appeal on TVA’s behalf.

II.

The desirability of reducing air pollution is widely

acknowledged, but the most effective means of doing so

remains, not surprisingly, a matter of dispute. The system of

statutes and regulations addressing the problem represents

decades of thought by legislative bodies and agencies and the

vast array of interests seeking to press upon them a variety of

air pollution policies. To say this regulatory and permitting

regime is comprehensive would be an understatement. To say

it embodies carefully wrought compromises states the obvi10 STATE OF NORTH CAROLINA v. TVA
ous. But the framework is the work of many, many people,

and it is in place.

The district court’s well-meaning attempt to reduce air pollution cannot alter the fact that its decision threatens to scuttle

the extensive system of anti-pollution mandates that promote

clean air in this country. If courts across the nation were to

use the vagaries of public nuisance doctrine to overturn the

carefully enacted rules governing airborne emissions, it would

be increasingly difficult for anyone to determine what standards govern. Energy policy cannot be set, and the environment cannot prosper, in this way.

A.

North Carolina attempts to frame this case in terms of protecting public health and saving the environment from dirty

air. But the problem is not a neglected one. In fact, emissions

have been extensively regulated nationwide by the Clean Air

Act for four decades. The real question in this case is whether

individual states will be allowed to supplant the cooperative

federal-state framework that Congress through the EPA has

refined over many years.

It is worth describing this system in some detail. The federal Clean Air Act, 42 U.S.C. § 7401 et seq., is the primary

mechanism under which emissions in the United States are

managed. The Act makes the EPA responsible for developing

acceptable levels of airborne emissions, known as National

Ambient Air Quality Standards (NAAQS), "the attainment

and maintenance of which . . . are requisite to protect the public health." 42 U.S.C. § 7409(b)(1). NAAQS are further subdivided into Primary NAAQS, 42 U.S.C. § 7409(b)(1), and

Secondary NAAQS, 42 U.S.C. § 7409(b)(2). Primary

NAAQS are intended to protect individuals, while Secondary

NAAQS are set to protect the surrounding environment. In

practice, the two standards are often, though not necessarily,

the same. See 40 C.F.R. § 50. As the name suggests, NAAQS

STATE OF NORTH CAROLINA v. TVA 11
are meant to set a uniform level of air quality across the country in order to guarantee both a healthy populace and a

healthy environment. See Her Majesty the Queen v. City of

Detroit, 874 F.2d 332, 335 (6th Cir. 1989).

As a result of this statutory directive, the EPA has promulgated NAAQS for a number of emissions, including standards

for all of the emissions involved in this case. See 40 C.F.R.

§§ 50.4 & 50.5 (SO2), 50.9 & 50.15 (ozone), 50.11 (NOx), &

50.13 (PM2.5). For instance, the NAAQS level for PM2.5 across

the country is set at an annual average of fifteen micrograms

per cubic meter (15 μg/m3) and at thirty-five micrograms per

cubic meter (35 μg/m3) for a twenty-four hour period. 40

C.F.R. § 50.13. Such standards, however, are not set arbitrarily by the EPA. Rather, "a reasonable time for interested persons to submit written comments" must be provided before

NAAQS may be adopted or modified. 42 U.S.C.

§ 7409(a)(1)(B), (b)(1) & (2). The EPA also has adopted

extensive regulations explaining proper scientific equipment

and techniques and providing detailed schematic diagrams for

measuring emissions levels and air quality, see 40 C.F.R.

§ 50, apps. A-R, to ensure that measurements will be consistent across the country.

B.

While it establishes acceptable nationwide emissions

levels, however, the EPA does not directly regulate actual

sources of emissions. In light of the fact that Congress recognized "that air pollution prevention . . . and air pollution control at its source is the primary responsibility of States and

local governments," 42 U.S.C. § 7401(a)(3), decisions regarding how to meet NAAQS are left to individual states. 42

U.S.C. § 7410(a)(1). Pursuant to this goal, each state is

required to create and submit to the EPA a State Implementation Plan (SIP) "which provides for implementation, maintenance, and enforcement of [NAAQS] . . . within such State."

Id. While states are responsible for promulgating SIPs, they

12 STATE OF NORTH CAROLINA v. TVA
must do so consistently with extensive EPA regulations governing preparation, adoption by the state, and submission to

the EPA, 40 C.F.R. § 51, and all SIPs must be submitted to

the EPA for approval before they become final. 42 U.S.C.

§ 7410(a)(1), (k)(2) & (3). Once a SIP is approved, however,

"its requirements become federal law and are fully enforceable in federal court." Her Majesty the Queen, 874 F.2d at

335 (citing 42 U.S.C. § 7604(a)).

States are accorded flexibility in determining how their

SIPs are structured, but regardless of their choices, SIPs must

"include enforceable emission limitations and other control

measures, means, or techniques" to ensure that each state

meets NAAQS. 42 U.S.C. § 7410(a)(2)(A). States are also

tasked with enforcing the limitations they adopt in their SIPs.

They must regulate "the modification and construction of any

stationary source within the areas covered by the [SIP]," 42

U.S.C. § 7410(a)(2)(C), and must implement a permit program that limits the amounts and types of emissions that each

permit holder is allowed to discharge, 42 U.S.C.

§§ 7661a(d)(1), 7661c(a). Sources are prohibited from operating without such a permit, 42 U.S.C. § 7661a(a), and each

permit is intended to be "a source-specific bible for Clean Air

Act compliance" containing "in a single, comprehensive set of

documents, all CAA requirements relevant to the particular

polluting source." Virginia v. Browner, 80 F.3d 869, 873 (4th

Cir. 1996).

Critically for this case, each SIP must consider the impact

of emissions within the state on the ability of other states to

meet NAAQS. The Clean Air Act requires each state to

ensure that its SIP "contain[s] adequate provisions prohibiting

. . . any source . . . within the State from emitting any air pollutant in amounts which will contribute significantly to nonattainment in, or interfere with maintenance by, any other State

with respect to any such national primary or secondary ambient air quality standard." 42 U.S.C. § 7410(a)(2)(D), (D)(i), &

(D)(i)(I) (internal section breaks omitted). This rule prevents

STATE OF NORTH CAROLINA v. TVA 13
states from essentially exporting most of their emissions to

other regions by strategically positioning sources along an

arbitrary border line.

In addition, before new construction or modifications of a

source of emissions may begin, a SIP must provide for "written notice to all nearby States the air pollution levels of which

may be affected by such source at least sixty days prior to the

date on which commencement of construction is to be permitted." 42 U.S.C. § 7426(a)(1). 

Both Alabama and Tennessee have promulgated SIPs, and

as part of its compliance with these regulations TVA has

sought and obtained state permits to operate each of its power

plants. As far as the record before us indicates, TVA currently

operates each of the four plants at issue in this case in conformity with the permits, including limitations on SO2

 and NOx

emissions. Indeed, this suit does not present a challenge to

Alabama and Tennessee’s SIPs, the permits issued to TVA

pursuant to them, or TVA’s operation pursuant to the permits.

In addition to this framework, there are a number of checks

built into the system to prevent abuses and to address concerns about emissions. As already noted, the EPA retains ultimate authority over NAAQS to determine what levels of

emissions are acceptable and has the responsibility to modify

those levels as necessary. 42 U.S.C. § 7409(b)(1) & (2). The

EPA also has the authority, through a procedure known as a

SIP Call, to demand that states modify their SIPs if it believes

they are inadequate to meet NAAQS. 42 U.S.C. § 7410(k)(5).

Finally, any state that believes that it is being subjected to

interstate emissions may file what is known as a section 126

petition. Named after the original section of the Clean Air Act

and codified at 42 U.S.C. § 7426(b), the section states that

"[a]ny State or political subdivision may petition the Administrator [of the EPA] for a finding that any major source or

group of stationary sources emits or would emit any air pollutant in violation of the prohibition of section

14 STATE OF NORTH CAROLINA v. TVA
7410(a)(2)(D)([i]) of this title or this section."1

 42 U.S.C.

§ 7426(b). As noted earlier, section 7410(a)(2)(D)(i)(I) prohibits states from allowing emissions that will interfere with

other states’ attainment or maintenance of NAAQS air emission levels. Thus, section 126 provides an important method

for downwind states like North Carolina to address any concerns they have regarding the adequacy of an upwind state’s

regulation of airborne emissions.

III.

We have explained at some length the structure of the

Clean Air Act in order to emphasize the comprehensiveness

of its coverage. The fact that the process has been regulated

in such detail has contributed to its inclusiveness and predictability. It was hardly unforeseeable that the aforementioned

process and the plans and permits related to it would not meet

with universal approbation. Litigation that amounts to "nothing more than a collateral attack" on the system, however,

risks results that lack both clarity and legitimacy. Palumbo v.

Waste Techs. Indus., 989 F.2d 156, 159 (4th Cir. 1993).

Dissatisfied with the air quality standards authorized by

Congress, established by the EPA, and implemented through

Alabama and Tennessee permits, North Carolina has

requested the federal courts to impose a different set of standards. The pitfalls of such an approach are all too evident. It

ill behooves the judiciary to set aside a congressionally sanctioned scheme of many years’ duration—a scheme, moreover,

that reflects the extensive application of scientific expertise

1Section 126’s cross reference contains an apparent scrivener’s error as

a result of renumbering during extensive amendments in 1990. The section

as printed references section 7410(a)(2)(D)(ii), but section 126(b) prior to

amendment referenced what is now section 7410(a)(2)(D)(i). The EPA

"contends that the Congress amended § 126 only in order to update the

cross-references" and that this "substitution of ‘(ii)’ for ‘(i)’ was inadvertent." Appalachian Power Co. v. EPA, 249 F.3d 1032, 1040 (D.C. Cir.

2001) (citation omitted). 

STATE OF NORTH CAROLINA v. TVA 15
and that has set in motion reliance interests and expectations

on the part of those states and enterprises that have complied

with its requirements. To replace duly promulgated ambient

air quality standards with standards whose content must await

the uncertain twists and turns of litigation will leave whole

states and industries at sea and potentially expose them to a

welter of conflicting court orders across the country.

A.

The Supreme Court addressed this precise problem of multiplicity in International Paper Co. v. Ouellette, 479 U.S. 481

(1987). It emphasized that allowing "a number of different

states to have independent and plenary regulatory authority

over a single discharge would lead to chaotic confrontation

between sovereign states." Id. at 496-97 (quoting Illinois v.

City of Milwaukee, 731 F.2d 403, 414 (7th Cir. 1984)). This

problem is only exacerbated if state nuisance law is the mechanism used, because "nuisance standards often are vague and

indeterminate." Id. at 496 (citation omitted).

Indeed, the district court properly recognized that "[t]he

ancient common law of public nuisance is not ordinarily the

means by which such major conflicts among governmental

entities are resolved in modern American governance." North

Carolina v. Tenn. Valley Auth., 593 F. Supp. 2d at 815. This

is at least in part because public nuisance is an all-purpose tort

that encompasses a truly eclectic range of activities. It

includes such broad-ranging offenses as:

interferences with the public health, as in the case of

a hogpen, the keeping of diseased animals, or a

malarial pond; with the public safety, as in the case

of the storage of explosives, the shooting of fireworks in the streets, harboring a vicious dog, or the

practice of medicine by one not qualified; with public morals, as in the case of houses of prostitution,

illegal liquor establishments, gambling houses, inde16 STATE OF NORTH CAROLINA v. TVA
cent exhibitions, bullfights, unlicensed prize fights,

or public profanity; with the public peace, as by loud

and disturbing noises, or an opera performance

which threatens to cause a riot; with the public comfort, as in the case of bad odors, smoke, dust and

vibration; with public convenience, as by obstructing

a highway or a navigable stream, or creating a condition which makes travel unsafe or highly disagreeable, or the collection of an inconvenient crowd; and

in addition, such unclassified offenses as eavesdropping on a jury, or being a common scold. 

W. Page Keeton et al., Prosser and Keeton on the Law of

Torts 643-45 (5th ed. 1984) (citing numerous examples). See

also Restatement (Second) of Torts § 821B cmts. b & c; Commonwealth Edison Co. v. United States, 271 F.3d 1327, 1353

(Fed. Cir. 2001) (en banc) ("When discussing the contours

and scope of the common law, the Supreme Court has

instructed that it is appropriate for us to look to the pertinent

Restatement and other secondary sources.") (citing cases and

Restatement (Second) of Torts).

Thus, while public nuisance law doubtless encompasses

environmental concerns, it does so at such a level of generality as to provide almost no standard of application. If we are

to regulate smokestack emissions by the same principles we

use to regulate prostitution, obstacles in highways, and bullfights, see Keeton, supra, at 643-45, we will be hard pressed

to derive any manageable criteria. As Justice Blackmun commented, "one searches in vain . . . for anything resembling a

principle in the common law of nuisance." Lucas v. S.C.

Coastal Council, 505 U.S. 1003, 1055 (1992) (Blackmun, J.,

dissenting).

The contrast between the defined standards of the Clean

Air Act and an ill-defined omnibus tort of last resort could not

be more stark. We are hardly at liberty to ignore the Supreme

Court’s concerns and the practical effects of having multiple

STATE OF NORTH CAROLINA v. TVA 17
and conflicting standards to guide emissions. These difficulties are heightened if we allow multiple courts in different

states to determine whether a single source constitutes a nuisance. "Adding another layer of collateral review for agency

decisions threatens to put at naught the . . . process established

by Congress." Palumbo, 989 F.2d at 161. An EPA-sanctioned

state permit may set one standard, a judge in a nearby state

another, and a judge in another state a third. Which standard

is the hapless source to follow? See Ouellette, 479 U.S. at 496

n.17. 

Indeed, a patchwork of nuisance injunctions could well

lead to increased air pollution. Differing standards could

create perverse incentives for power companies to increase

utilization of plants in regions subject to less stringent judicial

decrees. Alabama Br. at 62. Similarly, rushed plant alterations

triggered by injunctions are likely inferior to system-wide

analysis of where changes will do the most good. Injunctiondriven demand for such artificial changes could channel a

limited pool of specialized construction expertise away from

the plants most in need of pollution controls to those with the

most pressing legal demands. Tennessee Br. at 8-9, 12. Even

these scenarios probably fail to exhaust the full scope of

unpredictable consequences and potential confusion. "It is

unlikely—to say the least—that Congress intended to establish such a chaotic regulatory structure." Ouellette, 479 U.S.

at 497.

B.

We need not hold flatly that Congress has entirely preempted the field of emissions regulation. See Pac. Gas &

Elec. Co. v. State Energy Res. Conservation & Dev. Comm.,

461 U.S. 190, 203-04 (1983). We cannot anticipate every circumstance that may arise in every future nuisance action. In

TVA I, for example, we held that the savings clause of the

Clean Air Act may allow for some common law nuisance

suits, although we did not address whether a nuisance action

18 STATE OF NORTH CAROLINA v. TVA
brought under these circumstances is barred by preemption

under the Supremacy Clause. The Ouellette Court itself

explicitly refrained from categorically preempting every nuisance action brought under source state law. 479 U.S. at 497-

99. At the same time, however, the Ouellette Court was

emphatic that a state law is preempted "if it interferes with the

methods by which the federal statute was designed to reach

[its] goal," id. at 494, admonished against the "tolerat[ion]" of

"common-law suits that have the potential to undermine [the]

regulatory structure," id. at 497, and singled out nuisance

standards in particular as "vague" and "indeterminate," id. at

496 (quoting City of Milwaukee v. Illinois, 451 U.S. 304, 317

(1981)) (internal quotation marks omitted). The upshot of all

this is that we cannot state categorically that the Ouellette

Court intended a flat-out preemption of each and every conceivable suit under nuisance law. We can state, however, with

assurance that Ouellette recognized the considerable potential

mischief in those nuisance actions seeking to establish emissions standards different from federal and state regulatory law

and created the strongest cautionary presumption against

them.

In particular, it is essential that we respect the system that

Congress, the EPA, and the states have collectively established. This is especially so in light of the fact that "‘the purpose of Congress is the ultimate touchstone in every preemption case.’" Wyeth v. Levine, 555 U.S. ___, 129 S.Ct.

1187, 1194 (2009) (quoting Medtronic, Inc. v. Lohr, 518 U.S.

470, 485 (1996)). A field of state law, here public nuisance

law, would be preempted if "a scheme of federal regulation

. . . [is] so pervasive as to make reasonable the inference that

Congress left no room for the States to supplement it." Pac.

Gas & Elec. Co., 461 U.S. at 204 (ellipsis in original, citation

omitted). Here, of course, the role envisioned for the states

has been made clear. Where Congress has chosen to grant

states an extensive role in the Clean Air Act’s regulatory

regime through the SIP and permitting process, field and conflict preemption principles caution at a minimum against

STATE OF NORTH CAROLINA v. TVA 19
according states a wholly different role and allowing state

nuisance law to contradict joint federal-state rules so meticulously drafted.

It is true, as North Carolina argues, that the Clean Air Act’s

savings clause states that "[n]othing in this section shall

restrict any right which any person (or class of persons) may

have under any statute or common law to seek enforcement

of any emission standard or limitation or to seek any other

relief." 42 U.S.C. § 7604(e). We must weigh that admonition,

however, in light of the Supreme Court’s direction in Pacific

Gas & Electric, 461 U.S. at 203-13. There the Court

explained that when Congress chose to give the Nuclear Regulatory Commission (at the time of the legislation the Atomic

Energy Commission) control over issues relating to nuclear

safety, it completely occupied the field of nuclear safety regulations, notwithstanding a general savings clause indicating

that states retained their traditional power to regulate electrical utilities. Id. at 210. As a result, the State of California’s

claim that "a State may completely prohibit new construction

until its safety concerns are satisfied by the Federal Government" was rejected. Id. at 212. The Court explained that

"[w]hen the Federal Government completely occupies a given

field or an identifiable portion of it, . . . the test of preemption is whether ‘the matter on which the State asserts the

right to act is in any way regulated by the Federal Act.’" Id.

at 212-13 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 236 (1947)). While the Court recognized that California

retained the right to regulate for traditional utilities purposes,

the case at bar mirrors Pacific Gas & Electric insofar as it

involves an attempt to replace comprehensive federal emissions regulations with a contrasting state perspective about the

emission levels necessary to achieve those same public ends.

Similarly, Ouellette held that the Clean Water Act’s savings clause, which is similar to the one found in the Clean Air

Act, compare 33 U.S.C. § 1365(e) with 42 U.S.C. § 7604(e),

did not preserve a broad right for states to "undermine this

20 STATE OF NORTH CAROLINA v. TVA
carefully drawn statute through a general savings clause."

Ouellette, 479 U.S. at 494. The Court indicated that the clause

was ambiguous as to which state actions were preserved and

noted that "if affected States were allowed to impose separate

discharge standards on a single point source, the inevitable

result would be a serious interference with the achievement of

the ‘full purposes and objectives of Congress.’" Id. at 493-94

(quoting Hillsborough County v. Automated Med. Labs., Inc.,

471 U.S. 707, 713 (1985)). We thus cannot allow non-source

states to ascribe to a generic savings clause a meaning that the

Supreme Court in Ouellette held Congress never intended.

C.

The difficulties with North Carolina’s approach in this litigation do not end with the prospect of multiplicitous decrees

or vague and uncertain nuisance standards. In addition to

envisioning a role for the states that the Clean Air Act did not

contemplate, North Carolina’s approach would reorder the

respective functions of courts and agencies.

One can, of course, debate the respective merits of agency

and judicial roles in addressing the problem of air pollution.

But Congress in the Clean Air Act opted rather emphatically

for the benefits of agency expertise in setting standards of

emissions controls, especially in comparison with the judicially managed nuisance decrees for which North Carolina

argues. Indeed, the Act directs the EPA to ensure that its air

quality standards "accurately reflect the latest scientific

knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be

expected from the presence of such pollutant in the ambient

air." 42 U.S.C. § 7408(a)(2). The Clean Air Act’s extensive

coverage allows regulators with expertise in the relevant scientific fields to use their knowledge to create empiricallybased emissions standards. The Act even requires the EPA to

develop expertise so that it can provide states with information about available emissions controls, including "cost of

STATE OF NORTH CAROLINA v. TVA 21
installation and operation, energy requirements, emission

reduction benefits, and environmental impact of the emission

control technology" as well as "data on alternative fuels, processes, and operating methods which will result in elimination

or significant reduction of emissions." 42 U.S.C.

§ 7408(b)(1). 

One can argue whether expert witnesses in bench trials can

replicate the resources that EPA can bring to bear in deciding

appropriate emissions standards. But Congress evidently

thought not. It was certainly open to the legislative branch to

authorize various private causes of action as the primary

means of arriving at emissions standards. Congress, however,

thought the problem required a very high degree of specialized knowledge in chemistry, medicine, meteorology, biology, engineering, and other relevant fields that agencies rather

than courts were likely to possess. "Congress has entrusted

the Agency with the responsibility for making these scientific

and other judgments, and we must respect both Congress’

decision and the Agency’s ability to rely on the expertise that

it develops." Lead Indus. Ass’n, Inc. v. EPA, 647 F.2d 1130,

1146 (D.C. Cir. 1980). See also id. ("We must look at the

decision not as the chemist, biologist, or statistician that we

are qualified neither by training nor experience to be.") (quoting Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C. Cir. 1976));

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 865-66 (1984) (acknowledging the EPA’s "great

expertise" in air quality matters). 

The required notice and comment periods detailed above,

see, e.g., 42 U.S.C. §§ 7409(a)(1)(B), (b)(1) & (2),

7426(a)(1), are further designed to allow EPA and state regulators to receive broad inputs into the regulatory scheme.

Agency rulemaking is a "quasi-legislative power, . . . intended

to add substance to the Acts of Congress, to complete absent

but necessary details, and to resolve unexpected problems." 3

Jacob A. Stein et al., Administrative Law § 14.01. As a result,

inputs into the rulemaking process would ideally reflect not

22 STATE OF NORTH CAROLINA v. TVA
only scientific knowledge, but also the varied practical perspectives of industry and environmental groups. As David

Shapiro has explained, the rulemaking process has the benefits of providing proactive instead of reactive control, creating

opportunities for notice and comment, allowing flexibility in

developing rules, and lowering the likelihood of disturbing

reliance interests. David L. Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 Harv. L. Rev. 921, 930-37 (1965). Rulemaking can in

this manner take advantage of the attributes of legislative

hearings, albeit in a more focused and circumscribed manner.

Shapiro also observed that the general nature of rulemaking

enables uniform application across industries, lessens the likelihood of distortions caused by the influence of individualized

facts in cases, and also makes the resulting rules readily

accessible in a single location. Id. at 935-41. 

Injunctive decrees, of course, are rulemakings of a sort.

While expressing the utmost respect for the obvious efforts

the district court expended in this case, we doubt seriously

that Congress thought that a judge holding a twelve-day

bench trial could evaluate more than a mere fraction of the

information that regulatory bodies can consider. "Courts are

expert at statutory construction, while agencies are expert at

statutory implementation." Negusie v. Holder, 555 U.S. ___,

129 S. Ct. 1159, 1171 (2009) (Stevens, J., concurring in part

and dissenting in part). In fact, the district court properly

acknowledged that "public nuisance principles . . . are less

well-adapted than administrative relief to the task of implementing the sweeping reforms that North Carolina desires."

North Carolina v. Tenn. Valley Auth., 593 F. Supp. 2d at 817.

As the District of Columbia Circuit has emphasized, courts

"would be less than candid if [they] failed to acknowledge

that [they] approach the task of examining some of the complex scientific issues presented in cases of this sort with some

diffidence." Lead Indus. Ass’n, 647 F.2d at 1146.

It is crucial therefore that courts in this highly technical

arena respect the strengths of the agency processes on which

STATE OF NORTH CAROLINA v. TVA 23
Congress has placed its imprimatur. Regulations and permits,

while hardly perfect, provide an opportunity for predictable

standards that are scientifically grounded and thus give rise to

broad reliance interests. TVA, for example, spent billions of

dollars on power generation units that supply electricity to

seven different states in the belief that its permits allowed it

to do so. There is no way to predict the effect on TVA or utilities generally of supplanting operating permits with mandates

derived from public nuisance law, but one suspects the costs

and dislocations would be heavy indeed. Without a single system of permitting, "[i]t would be virtually impossible to predict the standard" for lawful emissions, and "[a]ny permit

issued . . . would be rendered meaningless." Ouellette, 479

U.S. at 497 (quoting Illinois v. City of Milwaukee, 731 F.2d

at 414). This is because "for an uncertain length of time after

the agency issues the permit, the permit-holder would face the

very real threat that the inquiry into the validity of its permit

might be reopened in an altogether different forum."

Palumbo, 989 F.2d at 162. A company, no matter how wellmeaning, would be simply unable to determine its obligations

ex ante under such a system, for any judge in any nuisance

suit could modify them dramatically. Rather than take this

risk in the future, "otherwise worthy permit applicants will

weigh the formidable costs in delay and litigation, and simply

will not apply." Id.

There are, therefore, a host of reasons why Congress preferred that emissions standards be set through agencies in the

first instance rather than through courts. The prospects of

forum shopping and races to the courthouse, the chances of

reversals on appeal, the need to revisit and modify equitable

decrees in light of changing technologies or subsequent enactments, would most assuredly keep matters unsettled. Congress opted instead for an expert regulatory body, guided by

and subject to congressional oversight, to implement, maintain, and modify emissions standards and to do so with the aid

of the rulemaking process and a cooperative partnership with

states. In the words of Ouellette addressing the similarly com24 STATE OF NORTH CAROLINA v. TVA
prehensive Clean Water Act, the statute "carefully defines the

role of both the source and affected States, and specifically

provides for a process whereby their interests will be considered and balanced by the source State and the EPA." 479 U.S.

at 497. It is not open to this court to ignore the words of the

Supreme Court, overturn the judgment of Congress, supplant

the conclusions of agencies, and upset the reliance interests of

source states and permit holders in favor of the nebulous rules

of public nuisance.

IV.

In addition to the problems noted above, the district court’s

decision compromised principles of federalism by applying

North Carolina law extraterritorially to TVA plants located in

Alabama and Tennessee. There is no question that the law of

the states where emissions sources are located, in this case

Alabama and Tennessee, applies in an interstate nuisance dispute. The Supreme Court’s decision in Ouellette is explicit: a

"court must apply the law of the State in which the point

source is located." 479 U.S. at 487. While Ouellette involved

a nuisance suit against a source regulated under the Clean

Water Act, all parties agree its holding is equally applicable

to the Clean Air Act.

Unfortunately, while the district court acknowledged the

proper standard, North Carolina v. Tenn. Valley Auth., 593 F.

Supp. 2d at 829 (citing Ouellette, 479 U.S. at 487), it for all

practical purposes applied North Carolina’s Clean Smokestacks Act extraterritorially in Alabama and Tennessee. The

decision below does little more than mention the black letter

nuisance law of Alabama and Tennessee on its way to crafting

a remedy derived entirely from the North Carolina Act. See

id. at 829-31.

Certainly North Carolina intended for its Clean Smokestacks Act to be applied to TVA. We need look no further

than the direct statements of the North Carolina law itself.

STATE OF NORTH CAROLINA v. TVA 25
The Act orders the state to "use all available resources and

means, including . . . litigation to induce other states and entities, including the Tennessee Valley Authority, to achieve

reductions in emissions of oxides of nitrogen (NOx) and sulfur

dioxide (SO2) comparable to those required by [the Clean

Smokestacks Act] . . . on a comparable schedule." 2002 N.C.

Sess. Laws 4 § 10. 

Further, North Carolina repeatedly affirmed its desire to

apply the standards found in the Clean Smokestacks Act to

TVA. When the North Carolina Attorney General filed the

present lawsuit in 2006, he issued a press release stating that

"North Carolina is seeking a Court order requiring TVA to

control its emissions to levels similar to those required for

coal-fired power plants in North Carolina by the North Carolina Clean Smokestacks Act on a similar timetable." And in

responding to TVA’s first interrogatory, North Carolina indicated that it was requesting the imposition of "emission rates

equivalent to North Carolina’s Clean Smokestack[s] Act."

Even in opening statements before the district court, North

Carolina asked the court to require TVA to install controls "in

a similar way the State of North Carolina is requiring [in-state

power companies] Duke and Progress Energy by statute to put

pollution controls in their facilities."

Nor did North Carolina change its tune once the bench trial

began. Its primary expert witness, Dr. James Staudt, reiterated

often his "opinion [that TVA was a public nuisance was]

based upon looking at the Clean Smokestacks Act and the

emission rates that would be required for the Clean Smokestacks Act." Dr. Staudt stated that his "benchmark" was

"emissions rates that were equivalent to what would be

required in the Clean Smokestacks Act in 2013" and used

"those equivalent emission rates [to develop] what would be

caps for TVA." Indeed, Dr. Staudt believed his suggested

2013 deadline for installation of emissions controls was "an

appropriate deadline" because "it is consistent with the Clean

Smokestacks Act final deadline." 

26 STATE OF NORTH CAROLINA v. TVA
Importantly, in Plaintiff’s Exhibits 95 and 97 Dr. Staudt

summarized his findings and recommended installation of

scrubbers and SCRs to meet specific emissions caps for each

of TVA’s coal-fired electricity generation units. Plaintiff’s

Exhibit 95 showed precisely how many tons of SO2 and NOx

TVA’s system of eleven power plants as a whole would be

permitted to emit under the North Carolina Clean Smokestacks Act. Plaintiff’s Exhibit 97, revealingly titled "CSAEquivalent 2013 Emissions," then gave a unit-by-unit breakdown of the emissions each TVA plant would produce if the

scrubbers and SCRs were installed per Dr. Staudt’s recommendation. At the end of Plaintiff’s Exhibit 97, the sum total

of the TVA units’ emissions under Dr. Staudt’s proposed

scheme was just below the Clean Smokestacks Act caps presented in Plaintiff’s Exhibit 95.

In light of the fact that North Carolina informed the district

court in its opening statement that Dr. Staudt would provide

this information and again referred to his proposals during

closing argument, it is not at all surprising that the district

court utilized Exhibit 97’s CSA-Equivalent 2013 Emissions

calculations in fashioning its injunction. The court essentially

granted plaintiff its request. It created "a judicially-imposed

injunction requiring the installation and continual, year-round

use of appropriate pollution control technology." North Carolina v. Tenn. Valley Auth., 593 F. Supp. 2d at 831. As recommended by Dr. Staudt, the injunction demanded installation of

scrubbers and SCRs on each electric generating unit at the

four plants closest to the North Carolina border and the continuous operation of those pollution controls once installed.

Id. at 832. It also adopted Dr. Staudt’s 2013 timeline for final

completion of all scrubber and SCR construction. Id. at 827,

832.

Further, the court’s injunction traced, line by line, the emissions caps that Dr. Staudt presented in Plaintiff’s Exhibit 97.

After ordering that "TVA shall adhere to the following caps

on emissions," id. at 832, the district court reproduced the

STATE OF NORTH CAROLINA v. TVA 27
portions of the CSA-Equivalent 2013 Emissions chart that

related to each of the twenty-two electric generating units at

the four plants it enjoined. Compare id. at 832-33 with J.A.

1111-12 (Plaintiff’s Ex. 97). For instance, the district court

capped emissions from electric generating unit number eight

at TVA’s Widows Creek plant in northeast Alabama at 860

tons of NOx and 4,508 tons of SO2 per year—the precise

amounts that Dr. Staudt proposed. Compare North Carolina

v. Tenn. Valley Auth., 593 F. Supp. 2d at 833 with J.A. 1112

(Plaintiff’s Ex. 97). Indeed, the court imposed the limitations

that Dr. Staudt calculated to show how TVA could meet the

demands of North Carolina’s Clean Smokestacks Act on

every single electric generating unit it enjoined.

Yet the state now attempts to argue that the district court

did not, after all, impose the Clean Smokestacks Act extraterritorially because it only imposed caps on the four of TVA’s

eleven plants that were closest to the North Carolina line.

North Carolina claims that because the Clean Smokestacks

Act demands only system-wide caps, Dr. Staudt’s plantspecific calculations do not represent an extraterritorial application of the law.

But, as already explained, the district court’s emissions limits on TVA’s four plants are clearly drawn from Dr. Staudt’s

calculations, which he testified that he created to provide a

remedy that would be "equivalent to the requirements of the

North Carolina Clean Smokestacks Act." North Carolina in

fact admits that "Exhibit 97 was intended to demonstrate at

least one way that TVA would be capable of meeting North

Carolina’s proposed system-wide caps for NOx and SO

2

 emissions with the installation of scrubbers and SCRs." The fact

that there may have been other ways that TVA could reach

the emissions levels demanded by the Clean Smokestacks Act

and the fact that the district court ultimately decided to award

North Carolina only part of its requested relief cannot obscure

what occurred: The district court took the very calculations

provided by North Carolina to show how TVA could comply

28 STATE OF NORTH CAROLINA v. TVA
with an extraterritorial application of its law and used them to

fashion an injunction.

The Supreme Court emphasized that only source state law,

here that of Alabama and Tennessee, could impose more

stringent emission rates than those required by federal law on

plants located in those two jurisdictions. Ouellette, 479 U.S.

at 494-97. Yet exactly the opposite has happened. North Carolina explicitly stated that it wanted out-of-state entities,

including TVA, to follow its state rules. North Carolina law

provided the basis for Dr. Staudt’s opinion that TVA was

operating unreasonably. North Carolina law provided Dr.

Staudt with the benchmark for his recommendations regarding the steps TVA should take to bring its plants into compliance with the North Carolina Clean Smokestacks Act. And

North Carolina law ultimately provided the remedy the district court adopted against the four TVA plants at issue here.

Its decision was tied so tightly to the North Carolina Clean

Smokestacks Act that it violates Ouellette’s directive that

source state law applies to interstate nuisance suits.

V.

Even were we to accept North Carolina’s claim that the district court actually applied source state law from Alabama and

Tennessee, it would be difficult to uphold the injunctions

because TVA’s electricity-generating operations are expressly

permitted by the states in which they are located.2 It would be

odd, to say the least, for specific state laws and regulations to

expressly permit a power plant to operate and then have a

generic statute countermand those permissions on public nui2The parties also dispute whether Alabama and Tennessee allow out-ofstate sovereigns to bring public nuisance suits on behalf of their out-ofstate citizens. TVA as well as Alabama as intervenor argue with some

force that the district court’s decision that North Carolina could enforce

source state public nuisance law as a "foreign quasi sovereign" has no

basis in Alabama and Tennessee law. Our resolution of the other issues in

this case makes it unnecessary for us to resolve this issue. 

STATE OF NORTH CAROLINA v. TVA 29
sance grounds. As the Supreme Court has made clear,

"[s]tates can be expected to take into account their own nuisance laws in setting permit requirements." Ouellette, 479

U.S. at 499. 

While North Carolina points out that an activity need not

be illegal in order to be a nuisance, that is not the situation

before us. There is a distinction between an activity that is

merely not illegal versus one that is explicitly granted a permit to operate in a particular fashion. "Courts traditionally

have been reluctant to enjoin as a public nuisance activities

which have been considered and specifically authorized by

the government." New England Legal Found. v. Costle, 666

F.2d 30, 33 (2d Cir. 1981). This is especially true "where the

conduct sought to be enjoined implicates the technically complex area of environmental law." Id.; see also Restatement

(Second) of Torts § 821B cmt. f. ("Although it would be a

nuisance at common law, conduct that is fully authorized by

statute, ordinance or administrative regulation does not subject the actor to tort liability.").

Alabama law certainly recognizes this principle. The Alabama Supreme Court has repeatedly explained that "there can

be no abatable nuisance for doing in a proper manner what is

authorized by law." Fricke v. City of Guntersville, 36 So. 2d

321, 322 (Ala. 1948) (quoting Branyon v. Kirk, 191 So. 345,

349 (Ala. 1939)) (emphasis added); see also City of Birmingham v. City of Fairfield, 375 So. 2d 438, 441 (Ala. 1979)

(same); Johnson v. Bryant, 350 So. 2d 433, 436 (Ala. 1977)

(same); City of Birmingham v. Scogin, 115 So. 2d 505, 512

(Ala. 1959) (same). The law draws a distinction between

activities which are merely not illegal, see Ala. Code § 6-5-

120, and those which are expressly permitted. Thus, an entity

must behave in a negligent manner if its expressly permitted

activities are to constitute a nuisance. See City of Birmingham

v. City of Fairfield, 375 So. 2d at 441-43; St. Louis-San Francisco Ry. Co. v. Wade, 607 F.2d 126, 131 n.6 (5th Cir. 1979)

(Under Alabama law, "[n]egligence is an element of a claim

30 STATE OF NORTH CAROLINA v. TVA
for nuisance . . . if the defendant’s activities are specifically

authorized by law.").

So too Tennessee. An activity that is explicitly licensed and

allowed by Tennessee law cannot be a public nuisance. See,

e.g., O’Neil v. State ex rel. Baker, 206 S.W.2d 780, 781

(Tenn. 1947); Fey v. Nashville Gas & Heating Co., 64 S.W.2d

61, 62 (Tenn. Ct. App. 1933). Additionally, Tennessee’s Deputy Air Director, one of the officials responsible for managing

the air permitting process, testified that in issuing emissions

permits the state takes into account the same factors that

would be considered by a court in a nuisance case. The only

way that a permit-authorized activity can be enjoined under a

nuisance theory is if it is operating negligently, a claim not

before us in this case. See Fey, 64 S.W.2d at 62. Thus while

it is technically accurate to state that an act that is not illegal

can still be a nuisance, that proposition is simply not relevant

in this case because TVA’s Tennessee plants are expressly

permitted to operate as they do. As TVA’s facilities operate

under permits, required by Congress and EPA regulations, we

cannot say that the plant emissions of which North Carolina

complains are a public nuisance.

In sum, TVA’s plants cannot logically be public nuisances

under Alabama and Tennessee law where TVA is in compliance with EPA NAAQS, the corresponding state SIPs, and the

permits that implement them. These standards impose more

stringent requirements than source state nuisance law. Alabama and Tennessee nuisance law only prohibits activities

that substantially interfere with the average person—for

example, a person of "ordinary health and sensibilities, and

ordinary modes of living," Jenkins v. CSX Transp., Inc., 906

S.W.2d 460, 462 (Tenn. Ct. App. 1995) (emphasis added), or

"an ordinary reasonable man," Ala. Code § 6-5-120 (emphasis added); see also Fowler v. Fayco, Inc., 275 So. 2d 665,

669 (Ala. 1973) (nuisance not intended to prevent harms that

would "affect only one of a fastidious taste") (quoting Ala.

Code § 6-5-120).

STATE OF NORTH CAROLINA v. TVA 31
In contrast, the EPA’s regulations regarding NAAQS and

the SIPs implementing them are understandably designed to

protect even those individuals particularly sensitive to emissions. "NAAQS must protect not only average healthy individuals, but also ‘sensitive citizens’—children, for example,

or people with asthma, emphysema, or other conditions rendering them particularly vulnerable to air pollution." Am.

Lung Ass’n v. EPA, 134 F.3d 388, 389 (D.C. Cir. 1998). This

case does not join the issue of whether TVA is in compliance

with the various permits under which it operates, and we

assume, without deciding, that it is. If TVA is in compliance

with the more demanding federal EPA requirements and state

law SIPs, it cannot be in violation of less-stringent state law

nuisance standards.

VI.

While we must overturn the district court’s injunction,

North Carolina is by no means without remedy. As already

noted, the section 126 process provides protection for states

that believe they are suffering from improper interstate pollution. "[D]ownwind states retain their statutory right to petition

for immediate relief from unlawful interstate pollution under

section 126, 42 U.S.C. § 7426." North Carolina v. EPA, 531

F.3d 896, 930 (D.C. Cir. 2008) (per curiam). This section is

the primary process for states to address interstate emissions

that they believe cause problems with their attainment of

NAAQS. 

Indeed, North Carolina has already filed section 126 claims

with regard to the very TVA plants against which it sought

public nuisance rulings in this case. The district court recognized that "even in the present dispute, North Carolina began

its pursuit of relief by utilizing the normal administrative

channels established by the CAA." North Carolina v. Tenn.

Valley Auth., 593 F. Supp. 2d at 816. The EPA initially denied

North Carolina’s petition because it believed a new set of regulations it had promulgated, known as the Clean Air Interstate

32 STATE OF NORTH CAROLINA v. TVA
Rule (CAIR), 70 Fed. Reg. 25,162 (May 12, 2005), would

address the state’s concerns. However, after the D.C. Circuit

reversed CAIR because it believed aspects of the rule were

inconsistent with the Clean Air Act, see North Carolina v.

EPA, 531 F.3d at 901, it also remanded North Carolina’s section 126 claims for further EPA consideration in light of its

decision. See Sierra Club v. EPA, 313 Fed. Appx. 331 (D.C.

Cir. 2009) (per curiam). Those claims remain pending, and

there is no suggestion that the process will fail to provide

North Carolina with a full and fair venue for airing its concerns.

Nor is section 126 the only remedy North Carolina could

invoke. By federal law, states are required to provide comment periods before SIPs can be issued or modified, and

North Carolina "had the opportunity to protect [its] interests

before the fact by commenting and objecting to the proposed

standard." Ouellette, 479 U.S. at 498 n.18. It apparently chose

not to do so, and cannot complain now that it desires a different resolution. However, if either Tennessee or Alabama

decides to modify its SIP in the future, North Carolina will

have ample opportunity to make its views known. In addition,

SIPs must provide for written notice before a new source can

be constructed or an existing source can be modified. 42

U.S.C. § 7426(a)(1). This notice must be given to any region

that may be affected before such changes can take place. Id.

And should any of these avenues fail to satisfy the state, the

Clean Air Act allows petitions for judicial review of a broad

range of EPA actions, including promulgation of air standards

and EPA approval of SIPs, see 42 U.S.C. § 7607(b)(1), while

Alabama and Tennessee laws provide for similar administrative and judicial appeals of state permitting decisions, see Ala.

Code §§ 22-22A-6(a)(4), 22A-7(c)(6); Tenn. Code §§ 68-201-

105(a)(1), 68-201-108(a), 4-5-322.

This list of possible remedies does not even include private

law remedies that may be available to North Carolina. Indeed,

if North Carolina believes that TVA is not complying with its

STATE OF NORTH CAROLINA v. TVA 33
permits, the Clean Air Act provides for suits "against any person . . . who is alleged to have violated . . . or to be in violation of (A) an emission standard or limitation under this

chapter or (B) an order issued by the Administrator or a State

with respect to such a standard or limitation." 42 U.S.C.

§ 7604(a)(1). The statute further grants a cause of action

against the EPA if it fails to perform any non-discretionary

responsibility, 42 U.S.C. § 7604(a)(2), and also allows suit

against any entity that constructs a source of emissions without securing the requisite permits. 42 U.S.C. § 7604(a)(3). If

North Carolina believes that any of these violations have

occurred, it remains free to pursue such avenues as well.

As this non-exclusive discussion of remedies demonstrates,

North Carolina has a number of possible paths to pursue in its

entirely laudable quest to guarantee pure air to its citizens.

Seeking public nuisance injunctions against TVA, however, is

not an appropriate course. The laws in place have been

designed by Congress to protect our air and water. Plaintiff

would replace them with an unknown and uncertain litigative

future. As the Supreme Court has emphasized, the legal difficulties with this approach are legion. No matter how lofty the

goal, we are unwilling to sanction the least predictable and the

most problematic method for resolving interstate emissions

disputes, a method which would chaotically upend an entire

body of clean air law and could all too easily redound to the

detriment of the environment itself.

VII.

For the foregoing reasons, we reverse the judgment of the

district court and remand with directions to dismiss the action.

REVERSED AND REMANDED

34 STATE OF NORTH CAROLINA v. TVA