As State of North Carolina v. Tennessee Valley Authority grinds inexorably through the Fourth Circuit Court of Appeals, opponents of North Carolina's claim foresee a worst-case scenario in which state-created environmental regulations supersede established federal regulations.
"This case, if unchallenged and not overturned, could embolden environmental activists and left-wing judges to begin to create piecemeal environmental regulations on all kinds of socially and economically beneficial conduct and thus usurp the proper function of the political branches of the government," warns Brian Walsh, senior legal research fellow at the Heritage Foundation.
"The other worst-case scenario," Walsh adds, "is that politically minded governors and attorneys general in some states can force neighboring states through the federal courts to engage in odious environmental exercises and make themselves look good with no political cost to themselves."
Another potential problem is the domino effect that could result if more governments sue over polluted air allegedly wafting in from neighboring states.
"You can't prove where this pollution is coming from, the Tennessee Valley Authority says, and North Carolina has sources in its state," comments Maureen Martin, senior fellow for legal affairs at the Heartland Institute. "Nothing would prevent South Carolina from suing North Carolina by saying that the pollution is being sent their way. Or England could say that we're blowing air pollution over to them. North Carolina winning this case could potentially cause that kind of insanity."
Following a general assembly decision to pursue every possible means to attack air pollutants from neighboring states, North Carolina filed suit against the Tennessee Valley Authority in 2006, even the though the public utility was in full compliance with the Clean Air Act.
"Along comes the state of North Carolina, and they say to the TVA that the winds are blowing your pollution over into our state and that's a public nuisance for our citizens. It impairs their health and welfare," Martin continues.
"The case was kind of under the radar because nobody believed it would come as far as it's come. After a number of trial court proceedings in the federal district court, the judge issued a ruling saying that a public nuisance case could be brought against an electrical power generating plant even though the clean air act regulates thoroughly the emissions from these kinds of plants.
"Nobody thought that you could bring a case like this against an entity that is in full compliance with environmental and CAA law," Martin recalls. "To have a plant that the EPA has said is operating at a safe level and have that plant be the target of a public nuisance tort case is unprecedented.
"What North Carolina is saying is that the CAA, which has been in effect since the beginning of 1970 and routinely tweaked since then, allows a little bit of air pollution but that it's too much. The only number North Carolina accepts is zero, despite the EPA's safe level of pollutants."
According to Walsh, the chance of reversing the decision is entirely dependent upon which judges are drawn for the appeal. He considers the case an outrageous example of a court engaging in public policy and violating the separation of powers.
"There's no way that a single unelected, unaccountable judge in the mountains of North Carolina should be able to dictate a billion dollars' worth of allegedly helpful environmental controls for a federal project that is located in other states," Walsh asserts.
"Among other things, it means that the federal judiciary is willing to interpret extremely broad amorphous tort law concepts -- in this case, the public nuisance doctrine -- to engage in whatever level of meddling it desires to achieve politically desirable outcomes."
Whatever the eventual outcome of North Carolina v. Tennessee Valley Authority, Heartland's Maureen Martin guarantees an appeal to the Supreme Court.
"This might be tempting for the Supreme Court to take," Martin speculates. "Reading the tea leaves, if they were to take this case, I believe they would come to the conclusion that you can't sue under public nuisance."
Brian Walsh of Heritage agrees. "If TVA were to lose in the Fourth Circuit, it certainly will appeal the case to the Supreme Court, where there might be enhanced briefing by amici and the issues of separation of powers could be developed more fully and more expertly by numerous parties," he predicts.
"The reality of the case, if it stands,is that these costs will be passed along to everyone that has a stove, refrigerator or a furnace, whether they have low income or high income. The court has chosen to weigh in on a political matter regarding whether coal-fired power will be economically viable for this nation. That's not the job of judges or courts," Walsh insists. "That's the job of legislators and the people who elect them."
