Dust in the Wind: Is TVA 's Permit Shield a Death Knell for Interstate Public Nuisance Claims?

IntroductionAirborne particles, unfortunately, refuse to respect state boundaries. 1 Sulfur dioxide and nitrogen oxides from the Tennessee Valley Authority's (TVA) coal-fired plants in Tennessee and Alabama transform into fine particulate matter and ozone, which travel to North Carolina where they cause serious health impairments and environmental damage.2 In search of relief, North Carolina sued the TVA under its own public nuisance law.3 In July 2010, the U.S. Court of Appeals for the Fourth Circuit heard North Carolina ex rel. Cooper v. Tennessee Valley Authority (TVA).4 The court had to decide whether enjoining these unwieldy, interstate polluting particles under a public nuisance action was consistent with the structured program of the federal Clean Air Act (CAA), or if "vague public nuisance standards scuttle the nation's carefully created system for accommodating the need for energy production and the need for clean air."5This Comment evaluates the TVA opinion with a specific emphasis on the Fourth Circuit's impediments to public nuisance suits.6 Part I introduces the parties to the case and the legal doctrines at issue and provides a procedural summary of the district and appellate court decisions. 7 Part II then highlights the implications of TVA for future public nuisance litigation.8 Finally, Part III establishes the importance of public nuisance jurisprudence to the Clean Air Act's framework and evaluates the Fourth Circuit's most detrimental doctrinal weapon against public nuisance: the permit shield.9I. North Carolina's Attempt to Abate TVA PollutantsIn 1933, Congress established the Tennessee Valley Authority (TVA), a corporation owned by the U.S. government to promote economic development in the Tennessee Valley region.10 To achieve this end, the TVA produces, distributes, and sells electric power.11 Today, the TVA operates eleven coal-fired generating plants averaging fifty years old.12 All are located in Tennessee, Alabama, and Kentucky.13 These plants emit nitrogen oxides and sulfur dioxide, which create ozone and particulate matter downwind.14 All of these pollutants are regulated by the Clean Air Act (CAA).15The CAA requires both federal and state action to abate air pollution. 16 The federal Environmental Protection Agency (EPA) develops National Ambient Air Quality Standards ("NAAQS") for air pollutants, and state agencies implement permitting programs calculated to achieve the NAAQS.17 These federal standards are a floor, not a ceiling, as the CAA permits states to impose stricter standards.18North Carolina legislators exercised this right in 2002 by passing the North Carolina Clean Smokestacks Act (CSA), which imposes stricter oxide emissions caps on state coal-fired plants.19 In order to fully address air pollution's deleterious effects, however, the CSA also requires the state to use all available resources to induce its neighboring states and other entities to achieve similar reductions in oxide emissions. 20 As such, Attorney General Roy Cooper, on behalf of North Carolina, sued the TVA in 2006 in the U.S. District Court for the Western District of North Carolina, claiming that unreasonable amounts of airborne particles from the TVA's coal-fired plants pose a public nuisance by threatening the health of North Carolinians, the financial viability of the state, and the strength of its ecosystems.21On interlocutory appeal, the U.S. Court of Appeals for the Fourth Circuit determined that a public nuisance cause of action is not barred by the U.S. Constitution's Supremacy Clause, held that the TVA had no sovereign immunity, and permitted the case to proceed in district court.22 In January 2009, after extensive findings regarding the emissions of the plants and their health and environmental impacts, the district court applied the source state nuisance laws of Alabama and Tennessee to conclude that the emissions caused unreasonable damages to North Carolina. …