Fourth Circuit Allows Interstate Lawsuit Under Nuisance Theory

The Fourth Circuit Court of Appeals in its State of North Carolina v. Tennessee Valley Authority decision ruled on January 13 that upwind air pollution sources can be sued by downwind states under state nuisance causes of action. One blogger has described the lawsuit in this fashion:

In the case, the State of North Carolina sues TVA under the North Carolina common law of nuisance to enjoin the way that the TVA operates its coal-fired power plants in other States, namely Tennessee, Alabama, and Kentucky. North Carolina alleges that the "lawful emissions" from the TVA’s power plants in other States travel downwind and reach North Carolina airspace, where they damage human health and the environment in North Carolina. "Even though such emissions are regulated by and in compliance with the federal Clean Air Act and State law at the location of the plants," North Carolina contends that the emissions, whether permitted under applicable statutory laws, nonetheless create a public nuisance under North Carolina common law.

You can see the rest of the entry at http://environmentalappealscourt.blogspot.com/2008/02/state-of-north-carolina-v-tennessee.html

The TVA decision by the Fourth Circuit could lead other states to bring similar actions based on that state's own nuisance law. States downwind of West Virginia may be inclined to bring such actions against West Virginia sources, to the extent that they can prove that West Virginia emissions are interfering with their attainment of air quality standards. Of course, given the complexities of air modeling, that may be more easily said than done.