Academic journal article Harvard Law Review

Federal Preemption of State Law - Implied Preemption - Fourth Circuit Holds That State Public Nuisance Suit against Electricity-Generating Plant Emissions Is Preempted by the Clean Air Act Regime - North Carolina Ex Rel. Cooper V. TVA

Academic journal article Harvard Law Review

Federal Preemption of State Law - Implied Preemption - Fourth Circuit Holds That State Public Nuisance Suit against Electricity-Generating Plant Emissions Is Preempted by the Clean Air Act Regime - North Carolina Ex Rel. Cooper V. TVA

Article excerpt

The doctrine of implied preemption allows the judiciary to limit state power in order to advance federal policy. (1) Because Congress in its legislation must strike a balance between uniform federal action and state power, however, implied preemption may encourage courts to rely on "judicially manufactured policies" to forbid states from acting in areas where Congress intended to preserve state power. (2) Through the federal regulatory scheme provided by the Clean Air Act (3) (CAA), Congress sought to regulate emissions of air pollutants. (4) But the CAA contains clear compromises, for it leaves substantial responsibility for air quality with the states; (5) as a result, the boundary between federal and state authority under the CAA is a matter of dispute. (6) Recently, in North Carolina ex rel. Cooper v. TVA, (7) the Fourth Circuit held that an injunction based on state public nuisance law could not be granted against emissions from another state because such relief would frustrate Congress's purposes in establishing a comprehensive scheme of federal regulation through the CAA. (8) The court used the doctrine of implied preemption to preempt state law even though the CAA's savings clause expressly preserves some state law powers. (9) In concluding that Congress implicitly preempted the suit, the court subordinated statutory text to court-perceived purpose, demonstrating the inherent danger that implied preemption undermines the constitutional values of federalism and separation of powers.

The CAA gives the Environmental Protection Agency (EPA) authority to set acceptable airborne emissions levels. (10) Rather than provide for direct regulation of emissions sources by the EPA, the CAA requires each state to submit to the EPA a state implementation plan (SIP) to meet the EPA's standards. (11) The SIP must ensure that the state's emissions sources do not "interfere" with other states' adherence to the standards. (12) The CAA allows for some regulation outside the SIP process through its savings clause, which 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." (13)

In January 2006, the state of North Carolina filed a public nuisance action against the Tennessee Valley Authority (TVA), claiming that its citizens were harmed by emissions that entered North Carolina from eleven T VA coal-fired plants located in Tennessee, Kentucky, and Alabama. (14) The parties estimated that the pollution controls desired by North Carolina would cost T VA between three and five billion dollars. (15) TVA moved to dismiss the claim, arguing that the claim was not justiciable. (16) The district court denied TVA's motion to dismiss, (17) and the Fourth Circuit affirmed the denial. (18)

After a bench trial, (19) the district court granted in part North Carolina's requested injunction, holding that one of TVA's plants in Alabama and three in Tennessee "unreasonably interfere[d] with the rights of North Carolina citizens." (20) The court's injunction required T VA to install certain pollution reduction technologies at those plants, (21) and the court made extensive findings of fact with regard to the coal-fired plants' emissions, the adverse health and environmental effects, and the feasibility of pollution controls. (22) In determining whether a public nuisance existed, the court stated that it was applying the law of the states in which TVA's plants were located. (23)

The Fourth Circuit reversed and remanded. (24) Writing for the panel, Judge Wilkinson (25) explained three flaws in the district court's ruling. (26) First, the Fourth Circuit held that the CAA's emissions scheme preempted the state public nuisance suit because the suit would "interfere[] with the methods by which the federal statute was designed to reach [its] goal." (27) Second, the Fourth Circuit rejected the district court's assertion that it had applied the law of the emissions-source states, noting that the specific remedy awarded by the district court had been derived from a North Carolina statute. …

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