A federal judge imposed strict emissions controls on TVA power plants in Tennessee and Alabama based on a finding that the plants created a "public nuisance" in North Carolina under state law. The controls went far beyond state and federal emissions controls. On August 18, 2009, the NAM and other business groups supported TVA's appeal of this ruling to the Fourth Circuit, arguing that the state claims are preempted by the comprehensive interstate air pollution control scheme of the Clean Air Act, and that virtually any source of emissions in the country could be subjected to arbitrary case-by-case claims that they contribute to a public nuisance. The EPA established several major programs that already address interstate pollution, including the Clean Air Interstate Rule, the Nitrogen Oxide Budget Trading Program, the acid rain rules, the regional haze rules and the rules requiring permits for emissions. The lawsuit also amounts to a collateral attack on the national ambient air quality standards for particulate matter and ozone.
This litigation is similar to that brought by various states against 5 major electric utilities and recently decided by the Second Circuit. See Connecticut v. American Electric Power. Such litigation is a dangerous threat because it not only interferes with the uniform regulation of emissions but it also expands the law of public nuisance in a way that could be used against many other industries.
On July 26, 2010, the Fourth Circuit overturned the district court, ruling that Congress is the policymaking branch of government responsible for setting national standards, and that public nuisance law does not encompass an activity expressly permitted and extensively regulated by both federal and state government. It also ruled that one state is not able to apply its home state law to activities occurring in another state.
The court's opinion highlights the chief problem created by this kind of litigation: "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." In addition, it ruled that, "An activity that is explicitly licensed and allowed by Tennessee law cannot be a public nuisance." This decision is an important milestone in our fight against the use of expansive and unwarranted legal theories by trial lawyers against manufacturers.