petition for cert (2.2.11)

8/7/2019 Petition for Cert (2.2.11)

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No.

In the_~_~. ~: C)g T ~ F : C J ERK

Supreme Court of the United StatesSTATE OF N o w r H CAROLINA EX REI,. ROY C()()])EI~,

A T T O FIN EY GENERAI,,Petitioner,

V.

TENNESSEE VALLEY AUTHORITYAND STATE OF ALABAMA,

Respondents.On Petition for a Writ of Certiorari

to the United States Court of Appealsfor the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

ROY COOPERAttorney General of North Carolina

Christopher G. Browning, ,Jr.*Solicitor GeneralJames C. Gulick

Senior Deputy Attorney GeneralMarc D. Bernstein

Special Deputy Attorney GeneralN.C. Dept of JusticePost Office Box 629Raleigh, NC 27602-0629(919) [email protected]

February 2011 * Counsel of Record


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Blank Page


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QUESTIONS PRESENTED1. Whether the Clean Air Act, 42 U.S.C.

7401 et seq., preempts a public nuisanceaction against a stationary source when thataction is based on the common law of the Statewhere the source is located.

2. Whether the Fourth Circuitsconclusion that the issuance of an air qualitypermit bars a public nuisance action underAlabama and Tennessee law is contrary to thisCourts directive that a federal court is boundto accept interpretations of state law by theStates highest court.


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iiLIST OF PARTIES TO THE

PROCEEDINGS BELOWThe petitioner is the State of North Carolina exrel. Attorney General Roy Cooper.The respondents are Tennessee Valley Authority,

defendant in this action, and the State of Alabama,who intervened on appeal over the objection of NorthCarolina.


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iiiTABLE OF CONTENTS

QUESTIONS PRESENTED ................... iLIST OF PARTIES TO THE

PROCEEDINGS BELOW ................. iiTABLE OF AUTHORITIES ..................viOPINIONS BELOW ........................ 1JURISDICTION ........................... 1STATUTORY PROVISIONS INVOLVED ....... 2STATEMENT ............................. 2REASONS FOR GRANTING THE PETITION . . 12I. THE FOURTH CIRCUITS DECISION

CONFLICTS WITH THIS COURTSD ECISION IN INTERNATIONAL PAPER CO.v. OUELLETTE ....................... 13

II. THE DECISION OF THE FOURTH CIRCUITCREATES A CONFLICT AMONG THECIRCUIT COURTS ..................... 20

III. THE ISSUES PRESENTED AREEXTRAORDINARILY IMPORTANT ANDSHOULD BE DECIDED BY THE COURT . . 26


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iv

IV. THE FOURTH CIRCUITS DISREGARD OFCONTROLLING DECISIONS OF THESUPREME COURTS OF ALABAMA ANDTENNESSEE MERITS SUPERVISORYREVIEW BY THIS COURT ..............30

CONCLUSION ........................... 37APPENDIX

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Appendix F

Court of Appeals Opinion(July 26, 2010) ............... laDistrict Court Judgment(Jan. 13, 2009) .............. 43aDistrict Court Memorandumof Opinion(Jan. 13, 2009) .............. 51aDistrict Court Memorandumand Order on Summary Judgment(Feb. 27, 2008) .............. 93aDistrict Court Memorandumand Order on Motion to Dismiss(July 21, 2006) ............. 119aCourt of Appeals Opinionon Summary Judgment(Jan. 31, 2008) ............. 143a


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Appendix G

Appendix HAppendix IAppendix JAppendix KAppendix LAppendix MAppendix NAppendix O

Appendix P

VCourt of Appeals Orderdenying rehearing(Sept. 21, 2010) ............. 168a42 U.S.C. 7401 (2006) ...... 171a42 U.S.C. 7416 (2006) ...... 173a42 U.S.C. 7418 (2006) ...... 174a42 U.S.C. 7604 (2006) ...... 178aAla. Code 22-28-3 (2006) .... 185aAla. Code 22-28-16 (2006) ... 186aAla. Code 22-28-23 (2006) ... 187aTenn. Code Ann. 68-201-103 (2006) ................ 194aTenn. Code Ann. 68-201-114 (2006) ................ 195a


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viTABLE OF AUTHORITIES

CASESAlabama v. Shelton, 535 U.S. 654 (2002) ....... 30Borland v. Sanders Lead Co.,

369 So. 2d 523 (Ala. 1979) ............... 33Cipollone v. Liggett Group, Inc.,

505 U.S. 504 (1992) ...................... 7Connecticut vo Am. Elec. Power Co.,

582 F.3d 309 (2d Cir. 2009), cert.granted, 178 L. Ed. 2d 530 (2010)(No. 10-174) ..................... 12, 20, 25

Fey v. Nashville Gas & Heating Co.,64 S.W.2d 61 (Tenn. Ct. App. 1933) ........ 35

Georgia v. Tennessee Copper Co.,206 U.S. 230 (1907) .................. 27, 28

Gutierrez v. Mobil Oil Corp.,798 F. Supp. 1280 (W.D. Tex. 1992) .... 25, 26

Her Majesty the Queen v. City of Detroit,874 F.2d 332 (6th Cir. 1989) ....... 12, 14, 20,

23, 24, 25Hillsborough County v. Automated Med.

Labs., Inc., 471 U.S. 707 (1985) ........... 17


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viiHortonville Joint School Dist. v. Hortonville

Educ. Assoc., 426 U.S. 482 (1976) ......... 30

International Paper Co. v. Ouellette,479 U.S. 481 (1987) .................. passimLouisville & Nashville Terminal Co. v. Jacobs,

72 S.W. 954 (Tenn. 1902) ................ 36Louisville & Nashville Terminal Co. v. Lellyett,

85 S.W. 881 (Tenn. 1904) ............. 35, 36Martin Bldg. Co. v. Imperial Laundry Co.,

124 So. 82 (Ala. 1929) ................... 32Massachusetts v. EPA, 549 U.S. 497 (2007) .... 28Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ..... 7Memphis Street Ry. v. Rapid Transit Co.,

179 S.W. 635 (Tenn. 1915) ............... 35Milwaukee v. Illinois, 451 U.S. 304 (1981) ...... 17ONeil v. State ex rel. Baker,

206 S.W.2d 780 (Tenn. 1947) ............. 35Ouellette v. International Paper Co.,

666 F. Supp. 58 (D. Vt. 1987) .......... 25, 26Riegel v. Medtronic, Inc., 552 U.S. 312

(2008) ............................. 14, 15


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Vlll

Russell Corp. v. Sullivan, 790 So. 2d 940(Ala. 2001) ........................ 32, 33

Train v. Natural Res. Def. Council, Inc.,421 U.S. 60 (1975) ....................... 3

Union Electric Co. v. EPA, 427 U.S. 246 (1976)... 3STATUTES

16 U.S.C. 831-831ee (2006)(Tennessee Valley Authority Act of 1933) . . .428 U.S.C. 1254(1) (2006) ................... 128 U.S.C. 1331 (2006) ...................... 628 U.S.C. 1337 (2006) ...................... 633 U.S.C. 1251 et seq. (2006) ............... 1333 U.S.C. 1342 (2006) ..................... 1333 U.S.C. 1365(e) (2006) .................. 1433 U.S.C. 1370 (2006) ..................... 1442 U.S.C. 7401 et seq. (2006) ................ 242 U.S.C. 7401(a)(3) (2006) .............. 2, 2842 U.S.C. 7408 (2006) ...................... 3


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ix42 U.S.C. 7410 (2006) ...................... 342 U.S.C. 7416 (2006) .......... 2, 14, 17, 19, 2842 U.S.C. 7418(a) (2006) ................... 642 U.S.C. 7604(e) (2006) ........... 2, 3, 14, 2842 U.S.C. 7661a (2006) ..................... 3Ala. Code 22-28-23(a) (2006) ............. 4, 33Michigan Environmental Protection Act,

Mich. Comp. Laws Ann. 691.1201-.1207 (West 1987) ..................... 23Tenn. Code Ann. 68-201-114 (2006) .... 3, 34, 36$. Ct. R. 10(a) ............................ 32

SECONDARY SOURCESPetition for Writ of Certiorari, Am. Elec.

Power Co. v. Connecticut, No. 10-174(filed Aug. 2, 2010) ............ 22, 23, 26, 37

Br. for Petitioners, Am. Elec. Power Co.v. Connecticut, No. 10-174(filed Jan. 31, 2011) .................... 23

H.R. Rep. No. 1146, 91st Cong., 2d Sess. 56 (1970),reprinted in 1970 U.S.C.C.A.N. 5356 ....... 28


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X

Holly Doremus & W. Michael Hanemann, OfBabies and Bathwater: Why the Clean AirActs Cooperative Federalism Framework IsUseful for Addressing Global Warming,50 Ariz. L. Rev. 799 (2008) ................ 2

Jason J. Czarnezki & Mark L. Thomsen,Advancing the Rebirth of EnvironmentalCommon Law, 34 B.C. Envtl. Aff.L. Rev. 1 (2007) ........................ 26

Philip Weinberg, "Political Questions": AnInvasive Species Infecting the Courts,19 Duke Envtl. L. & Policy Forum 155(200S) ................................ 25

William H. Rodgers, Jr., Environmental Law 3:1 (2d ed. 1994) ...................... 28


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OPINIONS BELOWThe opinion of the United States Court of Appeals

for the Fourth Circuit (Pet. App. la-42a) is reported atNorth Carolina ex rel. Cooper v. Tennessee ValleyAuthority, 615 F.3d 291 (4th Cir. 2010). The opinion ofthe Fourth Circuit denying rehearing and rehearing enbanc (Pet. App. 168a-170a) is unreported. The finaljudgment (Pet. App. 43a-50a) and opinion (Pet. App.51a-92a) of the district court are reported at 593 F.Supp. 2d 812. The district courts decision withrespect to the parties motions for summary judgment(Pet. App. 93a-liSa) is reported at 549 F. Supp. 2d725. The district courts order denying Respondentsmotion to dismiss (Pet. App. 119a-142a) is reported at439 F. Supp. 2d 486. The Fourth Circuits opinion, onan interlocutory appeal, affirming the denial ofRespondents motion to dismiss (Pet. App. 143a-167a)is reported at 515 F.3d 344.

JURISDICTIONThe judgment of the United States Court of

Appeals for the Fourth Circuit was entered on July 26,2010. (Pet. App. 2a) A timely petition for rehearingwas filed on September 8, 2010 and denied onSeptember 21, 2010. (Pet. App. 168a) On November23, 2010, the Chief Justice extended the time withinwhich to file a petition for writ of certiorari to andincluding February 3, 2011. The jurisdiction of thisCourt is invoked pursuant to 28 U.S.C. 1254(1).


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2STATUTORY PROVISIONS INVOLVED

The relevant statutory provisions are reprinted inan appendix to this petition. (Pet. App. 171a-195a)

STATEMENT1. The Clean Air Act, 42 U.S.C. 7401 et seq.,

"was the first modern federal environmental statute toemploy a cooperative federalism framework,assigning responsibilities for air pollution control toboth federal and state authorities." Holly Doremus &W. Michael Hanemann, Of Babies and Bathwater." Whythe Clear~ Air Acts Cooperative Federalism FrameworkIs Useful for Addressing Global Warming, 50 Ariz. L.Rev. 799, 817 (2008). Under that framework, thefederal government sets the minimum level of airquality throughout the country. States are chargedwith implementing air quality programs to achievethese minimum standards. Id. States, however,retain the authority to impose restrictions andrequirements upon stationary sources within theirborders that are more stringent than the federalminimum. Id. at 819; see42 U.S.C. 7401(a)(3) (2006)(Pet. App. 171a) ("air pollution control at its source isthe primary responsibility of States and localgovernments"); 42 U.S.C. 7416 (2006) (Pet. App.173a) ("nothing in this chapter shall preclude or denythe right of any State or political subdivision thereof toadopt or enforce * * * any requirement respectingcontrol or abatement of air pollution"); 42 U.S.C. 7604(e) (2006) (Pet. App. 181a) ("Nothing in this


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section shall restrict any right which any person (orclass of persons) may have under any statute orcommon law to seek enforcement of any emissionstandard or limitation or to seek any other relief

Under Section 108 of the Clean Air Act, theEnvironmental Protection Agency is required to setNational Ambient Air Quality Standards ("NAAQS")for certain criteria pollutants. 42 U.S.C. 7408 (2006).States are then required to draft State ImplementationPlans ("SIPs") to achieve the federal minimumstandards. Each State is given "wide discretion" informulating its SIP. Union Electric Co. v. EPA, 427U.S. 246, 250 (1976); see 42 U.S.C. 7410 (2006). Oncea SIP has been approved by EPA, the State plays theprimary role in the attainment and maintenance of theNAAQS while the role of EPA becomes secondary.Train v. Natural Res. Def. Council, Inc., 421 U.S. 60,79 (197 ).

EPA has approved the SIPs for both Tennesseeand Alabama. Consequently, both States have theauthority under the Clean Air Act to issue air qualitypermits. See42 U.S.C. 7661a (2006). Thelegislatures of both States have stated that theissuance of such a permit does not insulate astationary source from state tort law. The TennesseeAir Quality Act states that it shall not "be construed toabridge or alter any rights of action, civil or criminal,arising from statute, common law or equity." Tenn.Code Ann. 68-201-114 (2006). (Pet. App. 195a)


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4Similarly, the Alabama Air Pollution Control Actprovides that the Act shall not be construed "to limit orabrogate any private remedies now available to anyperson." Ala. Code 22-28-23(a) (2006). (Pet. App.187a)

2. Defendant Tennessee ValleyAuthority ("TVA")is a corporate agency and instrumentality of theUnited States, created and existing pursuant to theTennessee Valley Authority Act of 1933, 16 U.S.C. 831-831ee. TVA operates numerous electricity-generating facilities in the southern United States,including four coal-fired power plants within 100 milesof the North Carolina border. Of these four plants,three are located in Tennessee and one is located inAlabama.

These four plants emit an average of 260,000 tonsof sulfur dioxide and nitrogen oxides into the air eachyear.~ These emissions form fine particulate matterthat penetrates the lungs and airways of personsdownwind of TVAs plants, resulting in prematuredeaths, increased incidents of asthma attacks andincreased inflammation of the lungs, particularly

1 For the five-year period prior to the filing of thecomplaint (2001-05), the combined annual emissions ofsulfur dioxide and nitrogen oxides for these four plantswere 263,420 tons. See TVA Air Quality Emissions Data(available at www.tva.com/environment/air/index.htm; goto "Emissions Data" and select "Bull Run," "Kingston,""John Sevier" and "Widows Creek").


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among persons who are struggling with lung diseasesuch as emphysema. In addition to the substantialimpact on human health, TVAs emissions havescarred one of our Nations greatest natural treasures,the Great Smoky Mountains. These pollutants haveresulted in acidification of the soils in this fragileecosystem, substantially diminishing the number andvariety of plants and wildlife that this ecosystem willsupport. TVAs emissions have also greatly increasedhaze in the region. As a result, the breathtaking viewsthat were once prevalent in the mountains of westernNorth Carolina have been substantially diminished.The impact of TVAs excessive emissions has beenextremely costly to North Carolina and its citizens.

With the installation of readily available pollutioncontrol equipment, the emissions from these fourplants could easily be reduced from 260,000 tons peryear to less than 45,000 tons per year. See 593 F.Supp. 2d at 827 (Pet. App. 82a) (installation of properpollution control equipment would reduce annualsulfur dioxide and nitrogen oxide emissions to 44,321tons per year). Such a reduction would result in animmediate decrease in the deaths and other harmsoccurring within North Carolina.

3. On January 30, 2006, the State of NorthCarolina brought a public nuisance action against TVAin the United States District Court for the WesternDistrict of North Carolina to address air emissionsfrom TVAs coal-fired electric generating units locatedin Tennessee, Alabama and Kentucky. The


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6jurisdiction of the district court was based on 28 U.S.C. 1331 and 1337.

The complaint alleges that TVA has failed toundertake reasonable measures to abate its emissions,thereby resulting in substantial harm to NorthCarolina and its citizens. The complaint asserts thatTVA is liable for the creation of a public nuisanceunder the laws of the States of Tennessee, Alabamaand Kentucky. Despite the enormous costs that TVAsexcess emissions have imposed upon North Carolina,North Carolina sought no monetary damages fromTVA. Instead, North Carolina requested only thatTVA be required to install and operate readilyavailable pollution control equipment to abate theongoing nuisance.

TVA moved to dismiss the complaint, assertingthat such an action was not appropriate against aninstrumentality of the United States. The districtcourt denied TVAs motion to dismiss, concluding thatSection 118 of the Clean Air Act, 42 U.S.C. 7418(a),expressly authorized the filing of nuisance and othercommon law causes of action against federal facilitiessuch as TVAs plants. This provision of the Clean AirAct states that federal facilities must comply with allstate and local "requirements * * * respecting thecontrol and abatement of air pollution." 42 U.S.C. 7418(a) (2006). (Pet. App. 174a) The district courtconcluded that "[g]iven such authorization for treatingfederal entities as private entities for air pollutionpurposes, and the fact that state law nuisance claims


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7against private entities for the abating of air pollutionsurvived passage of the Clean Air Act, it follows thatTVA is likewise subject to suit, in nuisance, forabatement of its emission of air pollutants." 439 F.Supp. 2d at 497. (Pet. App. 141a) The district courtcertified its order for an interlocutory appeal.

On interlocutory appeal, the Fourth Circuit agreedwith the district courts conclusion that a publicnuisance action may properly be brought against TVAunder the Clean Air Act. 515 F.3d at 352-53. (Pet.App. 161a) Based on its reading of Section 118, theFourth Circuit concluded that Congress intended theword "requirements" to sweep broadly and to includecommon law requirements such as those imposed by aStates nuisance laws. 515 F.3d at 351-53 (citingCipollone v. Liggett Group, Inc., 505 U.S. 504 (1992)andMedtronic, Inc. v. Lohr, 518 U.S. 470 (1996)). (Pet.App. 156a-160a) The Fourth Circuit rejected "TVAsargument that the CAA does not mandate compliancewith state requirements enforced through acommon-law tort suit." 515 F.3d at 352-53. (Pet. App.161a) The Fourth Circuit affirmed the district courtsdenial of TVAs motion to dismiss and remanded theaction for further proceedings.

Following remand, both North Carolina and TVAmoved for summary judgment. In its ruling on thosemotions, the district court rejected various affirmativedefenses asserted by TVA, including a defense that theissuance of air quality permits to TVAs plantsrendered it immune from a public nuisance action.


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8The district court concluded that this Courts decisionin International Paper Co. v. Ouellette, 479 U.S. 481(1987), "conclusively" refutes TVAs assertion thatbecause it is in compliance with its permits under theClean Air Act, it cannot be liable in nuisance. 549 F.Supp. 2d at 732. (Pet. App. 106a) The district courtnoted that this Court, in Ouellette, "discussed thepotential tension between state nuisance law andfederal permitting systems" and rejected an argumentthat the issuance of a federal permit would bar a claimunder state nuisance law. 549 F. Supp. 2d at 731.(Pet. App. 106a) Citing various appellate decisions inTennessee and Alabama, the district court pointed outthat these States are "unanimous in concluding thatotherwise lawful actions may be the subject ofnuisance lawsuits." Id. at 732. (Pet. App. 107a)Throughout its order, the district court recognized thatunder this Courts decision in Ouellette, it wasrequired to apply the nuisance law of the sourceStates, rather than the law of North Carolina. 549 F.Supp. 2d at 729, 732, 735. (Pet. App. 99a, 106a, 113a-115a)

Following a twelve-day bench trial, the districtcourt held that North Carolina had established thatTVAs three Tennessee plants (Bull Run, Kingston andJohn Sevier) located within 100 miles of NorthCarolina constituted a nuisance under the law of theState of Tennessee. The district court further heldthat TVAs Widows Creek plant (which is also within100 miles of the North Carolina border) constituted anuisance under the law of the State of Alabama. The


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9district court rejected North Carolinas assertion thatTVAs plants that were further away were also anuisance to North Carolina.

The district court proceeded to issue an injunctionrequiring TVA to install readily available pollutioncontrol equipment at the four plants at issue. Thedistrict court required TVA to install scrubbers andselective catalytic reduction ("SCR") technology atthese plants - equipment that TVA had stated itplanned to install even in the absence of aninjunction.~ See, e.g., 593 F. Supp. 2d at 832 (Pet. App.45a) ("As to John Sevier, TVA indicated at trial that itplans to build scrubbers and SCRs sufficient to coverall four [electric generating units]."). The districtcourt, however, concluded that this equipment could beinstalled on a shorter time schedule than that set outin TVAs construction plan and required TVA tocomply with this shorter construction schedule.

Retreating from the Fourth Circuits interlocutoryopinion that allowed this nuisance action to proceed, anewly constituted panel of the Fourth Circuit reversedthe district court and remanded with instructions that

2 TVA tendered its construction plan to the districtcourt with the apparent hope of convincing the court that itwas not necessary to issue an injunction. At trial, NorthCarolina presented evidence that TVA had in the past usedits construction plan in an effort to forestall litigation andthen altered that plan after the impending litigation wasaverted.


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10the district court dismiss the action.~ The FourthCircuit concluded that: (1) the Clean Air Act preemptsa public nuisance action in which the harm arises fromair emissions; (2) the district court improperly reliedon the law of the State of North Carolina, rather thanthe law of Alabama and Tennessee, in analyzing theclaim; and (3) the issuance of air quality permitsimmunized TVAs plants from a nuisance claim underthe laws of Alabama and Tennessee.

Although this Court in Ouelletteallowed anuisance action to proceed against a facility permittedunder the Clean Water Act, the Fourth Circuit heldthat a nuisance action could not be brought against afacility permitted under the Clean Air Act. In doingso, the Fourth Circuit recognized that this Courtsholding in Ouellette was "equally applicable" to theClean Air Act. 615 F.3d at 306. (Pet. App. 30a)Nevertheless, the Fourth Circuit read the Ouellettedecision as narrowly defining the role of an affectedState, such as North Carolina. According to theFourth Circuit, that role does not include bringing anuisance action under the law of the source State ifdoing so would upset the reliance interests of permitholders. Id. (Pet. App. 30a) The Fourth Circuitconcluded that Congress did not intend for the CleanAir Acts savings clause to apply to actions brought bya downwind State. Ido at 304. (Pet. App. 24a-25a)

:5 The State of Alabama moved to intervene in theappeal. The Fourth Circuit granted Alabamas motion overNorth Carolinas objection.


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11The Fourth Circuit further concluded that the

district court had applied North Carolina law, ratherthan the law of Alabama and Tennessee, in thisaction.4 Rather than remanding the action andinstructing the district court to apply the law of thesesource States, the Fourth Circuit directed the districtcourt to dismiss the action in light of its determinationthat the action was preempted by the Clean Air Act.

Finally, the Fourth Circuit concluded that "itwould be difficult to uphold the injunctions becauseTVAs electricity-generating operations are expresslypermitted by the states in which they are located."615 F.3d at 309. (Pet. App. 35a) The Fourth Circuitstated that "[i]t would be odd" for a State to allow itsnuisance laws to restrict activity for which the Statehas issued a permit. Id. (Pet. App. 35a-36a) In doingso, the Fourth Circuit rejected the district courtsconclusion that under Alabama and Tennessee law,the issuance of a permit does not immunize a facilityfrom a nuisance action. The Fourth Circuits decisionfails to cite to the applicable provisions of the AlabamaAir Pollution Control Act and the Tennessee AirQuality Act which expressly provide that these

4 Throughout the trial of this matter, the district courtrepeatedly stated that it was obligated to apply and wasapplying the nuisance laws of the source States rather thanNorth Carolina law. See 549F. Supp. 2d at 729, 732, 735;593 F. Supp. 2d at 829-31. (Pet. App. 100a, 106a, 113a-115a; Pet. App. 86a-92a)


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12statutes do not limit or abrogate common law causes ofaction.

REASONS FOR GRANTINGTHE PETITIONThe Fourth Circuits refusal to apply this Courts

holding in International Paper Co. v. Ouellette, 479U.S. 481 (1987), merits review by this Court. InOuellette, this Court expressly recognized that anuisance action may be brought to address interstatepollution, provided the action is based on the law ofthe source State. The Fourth Circuit, however, hasheld to the contrary. Additionally, the decision belowis in conflict with decisions of both the Second andSixth Circuits. Connecticut v. Am. Elec. Power Co.,582 F.3d 309 (2d Cir. 2009), cert. granted, 178 L. Ed.2d 530 (2010) (No. 10-174); Her Majesty the Queen v.City of Detroit, 874 F.2d 332 (6th Cir. 1989).

The present appeal is of exceptional importance.The district court, in factual findings that were notchallenged on appeal, concluded that TVAs excess airemissions result in premature deaths (as well asnumerous other adverse health effects andenvironmental harms) within the State of NorthCarolina. Failure to correct the Fourth Circuitserroneous decision will ensure that these deaths andother harms - which could be avoided by theinstallation of readily available pollution controltechnology - will continue.


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13THE FOURTH CIRCUITS DECISIONCONFLICTS WITH THIS COURTSDECISION IN INTERNATIONAL PAPERCO. v. OUELLETTE.In International Paper Co. v. Ouellette, 479 U.S.

481 (1987), this Court considered and rejected the veryarguments on which the Fourth Circuit now relies. InOuellette, residents of Vermont brought a publicnuisance action seeking injunctive and other relief inconnection with International Papers discharge ofpollutants into an interstate body of water. Thedischarge originated in New York. Id. at 484. Thedischarge was authorized by a permit that was issuedunder the federal Clean Water Act ("CWA"), 33 U.S.C. 1251 et seq., and was administered by the State ofNew York. 479 U.S. at 490 n.10; see 33 U.S.C. 1342(2006). This Court expressly held that the plaintiffspublic nuisance action could proceed, provided it wasbased on the law of the State in which the pollutionsource was located (New York) rather than the law ofthe affected State (Vermont). 479 U.S. at 497. TheCourt rejected the defendants claim that the CWApreempted all common law actions. Id. at 497-99. Tothe contrary, the Court held - unanimously - thatalthough claims based on the nuisance law of thedownstream State were preempted, "nothing in the Actbars aggrieved individuals from bringing a nuisanceclaim pursuant to the law of the source State." Id. at497; see also id. at 500 (Brennan, J., concurring in partand dissenting in part); id. at 508-09 (Stevens, J.,concurring in part and dissenting in part). Under


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14Ouellette, the State of North Carolina may proceedwith its public nuisance action provided the action isbased on the law of the source States -Alabama andTennessee.

The only arguable distinction between the facts ofthe present case and those inOuellette is that thepresent case involves air pollution crossing state linesand thus involves the Clean Air Act, whereas theOuellette facts involved water pollution and the CWA.The Courts analysis in Ouellette clearly demonstratesthat this is a distinction without a difference.

In Ouellette, this Court concluded that the CWAs"saving clause specifically preserves" common lawactions under source state law. 479 U.S. at 497. That"saving clause" is found in Sections 505(e) and 510 ofthe CWA. 33 U.S.C. 1365(e), 1370 (2006). TheClean Air Act analogs of these sections are Sections304(e) and 116, respectively. 42 U.S.C. 7416,7604(e) (2006). (Pet. App. 173a, 181a) Section 304(e)is identical to Section 505(e) of the CWA. Compare33U.S.C. 1365(e) with 42 U.S.C. 7604(e); see also HerMajesty the Queen v. City of Detroit, 874 F.2d 332,343(6th Cir. 1989).

Section 116 of the Clean Air Act explicitly savesfrom pre-emption "any requirement respecting controlor abatement of air pollution." 42 U.S.C. 7416. (Pet.App. 173a) As this Court has concluded, a plain"reference to a States requirements includes itscommon-law duties." Riegel v. Medtronic, Inc., 552


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15U.S. 312, 324 (2008). Thus, the Clean Air Actspecifically saves the enforcement of state commonlaw, which is the heart of this matter. See Ouellette,479 U.S. at 492,497-98. The Fourth Circuit, however,fails to even discuss Section 116 in its analysis of thisissue.

Throughout its opinion, the Fourth Circuit sets outseveral justifications for why a public nuisance actionshould not be brought. Each of those justifications wasrejected by this Court in Ouellette. The Fourth Circuitattempted to distinguish Ouellettebased on thisCourts admonition that "affected States" should notbe "allowed to impose separate * * * standards" onsources. 615 F.3d at 304 (Pet. App. 24a-25a) (quotingOuellette, 479 U.S. at 493-94). From this, the FourthCircuit concluded that North Carolina - an "affectedState"- should not be "allowed to impose separate * * standards" on TVA. (Pet. App. 25a) The Fourth

Circuit clearly misconstrued this Courts analysis. Inmaking its observation, this Court was not referring tothe nature of the plaintiff but instead to whether the"affected State" could impose its own law on sources inanother State. Indeed, in the very next sentence thisCourt "conclude[d] that the CWA precludes a courtfrom applying the law of an affected State against anout-of-state source." Ouellette, 479 U.S. at 494(emphasis added). In this case, the district court actedat the behest of an affected State, but it applied thelaw of the source States, which is the precise coursecharted by Ouellette.


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16The Fourth Circuits concern that state law

nuisance actions would undermine the "single systemof permitting" embodied in the federal Clean Air Actwas likewise considered and dismissed by this Court inOuellette. 615 F.3d at 306. (Pet. App. 28a-29a)Although a source States nuisance law "may imposeseparate standards and thus create some tension withthe permit system," application of such standards"does not disrupt the regulatory partnershipestablished by the permit system." Ouellette, 479 U.S.at 499. Indeed, in Ouellette, the fact that thedefendant had been issued a CWA permit did not bara common law nuisance action. Applying the commonlaw of the affected State, the Court reasoned, "wouldallow respondents to circumvent the * * * permitsystem, thereby upsetting the balance of public andprivate interests so carefully addressed by the Act."Ouellette, 479 U.S. at 494. But, "[b]ecause the Actspecifically allows source States to impose stricterstandards, the imposition of source-state law does notdisrupt the regulatory partnership established by thepermit system." Id. at 499 (emphasis added).

The Fourth Circuit also focused on the "structureof the Clean Air Act in order to emphasize thecomprehensiveness of its coverage." 615 F.3d at 301.(Pet. App. 18a) But the Fourth Circuits reasoningruns afoul of this Courts conclusion that although theCWA was "the most comprehensive and far reachingprovisions that Congress ever had passed" regardingwater pollution control, it left intact common lawactions under the law of the source State. Ouellette,


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17479 U.S. at 489 (internal quotations and citationomitted). As this Court has cautioned, "merelybecause * * * federal provisions [a]re sufficientlycomprehensive to meet the need identified by Congressd[oes] not mean that States * * * [a]re barred from * * imposing further requirements." Hillsborough

County v. Automated Med. Labs., Inc., 471 U.S. 707,717 (1985).

The Ouellette decision also foreclosed the FourthCircuits conclusion that it cannot "allow multiplecourts in different states to determine whether a singlesource constitutes a nuisance." 615 F.3d at 302. (Pet.App. 21a) This Court expressly rejected thisargument, finding that nothing "prevents a courtsitting in an affected State from hearing a common-law nuisance suit" under these circumstances.Ouellette,479 U.S. at 500. The Court specificallyconcluded that limiting common law claims to thoseunder the law of the source State cured the illidentified by the Fourth Circuit: "[T]he restriction ofsuits to those brought under source-state nuisance lawprevents a source from being subject to anindeterminate number of potential regulations." Id. at499. Moreover, the Clean Air Act clearly recognizesthe authority of the source State to maintain commonlaw standards that go beyond federal requirements.42 U.S.C. 7416 (Pet. App. 173a); accord Milwaukee v.Illinois, 451 U.S. 304, 327-28 (1981); Ouellette, 479U.S. at 497-98.


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18The net effect of the Fourth Circuits decision is far

greater than avoiding having "multiple courts indifferent states * * * determine whether a singlesource constitutes a nuisance." 615 F.3d at 302. (Pet.App. 21a) Instead, its effect is to deny injuredplaintiffs even the right to pursue a remedy. This ishardly the result counseled by Ouellette.

The Fourth Circuit also derided the use of "vaguepublic nuisance standards," which, in its view, wouldwork "to the detriment of industry and theenvironment alike." 615 F.3d at 296 (Pet. App. 7a); seealso id. at 298, 302 (Pet. App. 12a, 21a). In Ouellette,however, this Court found no such problem withallowing such claims to proceed so long as they werebased on the law of the source State. Contrary to theFourth Circuits assertion that this Court "created thestrongest cautionary presumption against" allowingnuisance claims to proceed, 615 F.3d at 303 (Pet. App.23a), the Court in Ouellette approved of the use ofstate law nuisance actions so long as they were basedon the correct States law. In the twenty-plus yearssince Ouellette, the "balkanization" and "confusedpatchwork of standards" that the Fourth Circuitfeared, id. at 296 (Pet. App. 7a), has not come to passunder the CWA.

Finally, the Fourth Circuits assertion that"[s]eeking public nuisance injunctions against TVA * * is not an appropriate course," 615 F.3d at 311 (Pet.

App. 41a), directly conflicts with this Courts specificrejection of any distinction between claims for


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19damages and injunctive relief. The Court declined to"draw a line between the types of relief sought," notingthat "unless there is evidence that Congress meant tosplit a particular remedy for pre-emption purposes, itis assumed that the full cause of action under statelaw is available." Ouellette, 479 U.S. at 498 n.19.

The Fourth Circuit indicated that it could not"state categorically that theOuellette Court intendeda flat-out preemption of each and every conceivablesuit under nuisance law." 615 F.3d at 303. (Pet. App.22a) To do so, of course, would be contrary toOuellettesvery holding. The Fourth Circuitsreasoning, however, represents no less than abroadside attack on public nuisance law. The FourthCircuits logic impugns the spectrum of conceivablepublic nuisance actions, leaving nothing of the tort inits wake. This is anathema to Congress preservationof a States authority to hold sources to more stringentstandards than the federal minimum. See 42 U.S.C. 7416. (Pet. App. 173a) The fact that nuisance law isa common law, case-by-case determination makes it noless the binding policy and preserved law of a Statethan any numeric emissions limit that a source Statemay promulgate. The salient fact is that Alabama andTennessee impose numeric emissions limits and alsomaintain the common law tort of public nuisance.Congress respected that decision in the Clean Air Act,but the Fourth Circuit did not, thus allowing anunwarranted intrusion upon state authority.


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20The Fourth Circuits repeated departures from and

outright conflicts with Ouellette suggest that theFourth Circuit was focused more on what it believesthe law ought to be rather than what this Court andCongress have already said it is. Review is warrantedto ensure that the Ouellette decision is followed by theFourth Circuit.II. THE DECISION OF THE FOURTH

CIRCUIT CREATES A CONFLICTAMONG THE CIRCUIT COURTS.The Fourth Circuits decision stands in conflict

with decisions of the Second and Sixth Circuits.Connecticut v. Am. Elec. Power Co., 582 F.3d 309 (2dCir. 2009), cert. granted, 178 L. Ed. 2d 530 (2010) (No.10-174); Her Majesty the Queen v. City of Detroit, 87 4F.2d 332 (6th Cir. 1989). The Second and SixthCircuits have expressly recognized that the Clean AirAct does not preempt nuisance-type actions. Incontrast, the Fourth Circuit has now concluded thatthe Clean Air Act preempts North Carolinas efforts topursue a nuisance action to protect its citizens fromemissions emanating from TVAs power plants. Asreflected by this Courts recent grant of certiorari inthe Second Circuit case, review by this Court isnecessary to resolve this conflict.

In American Electric Power Co., the Second Circuitconsidered whether a public nuisance action based onfederal common law could proceed against TVA andvarious other utilities that emitted greenhouse gases.


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21Each of the plants at issue in that action had beenissued valid permits under the Clean Air Act. In fact,the complaint in that action includes the TVA plantsthat are the subject of the present action filed by NorthCarolina. The Second Circuit held that the plaintiffscomplaint stated a claim for relief and reversed thedistrict courts dismissal of the action.

Despite the Second Circuits decision to allow anuisance action to proceed against TVA and otherutilities as a result of emissions of greenhouse gases,the Fourth Circuit has refused to allow a publicnuisance action based on state law on the theory thatsuch an action "would encourage courts to use vaguepublic nuisance standards to scuttle the nationscarefully created system for accommodating the needfor energy production and the need for clean air,"resulting in a "balkanization of clean air regulationsand a confused patchwork of standards, to thedetriment of industry and the environment alike." 615F.3d at 296. (Pet. App. 7a) According to the FourthCircuit, "Congress in the Clean Air Act opted ratheremphatically for the benefits of agency expertise insetting standards of emissions controls, especially incomparison with * * * judicially managed nuisancedecrees." Id. at 304. (Pet. App. 25a) The FourthCircuit therefore held that the Clean Air Act preemptsa nuisance action against a facility operating pursuantto a Clean Air Act permit when the plaintiff isasserting that emissions from that facility areexcessive.


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22I f t h e S e c o n d C i r c u i t i s c o r r e c t t h a t t h i s C o u r t s

precedents allow Connecticut to pursue a publicn u i s a n c e a c t i o n a g a i n s t T V A i n c o n n e c t i o n w i t h T V A semissions of greenhouse gases, North Carolinasn u i s a n c e a c t i o n m u s t b e p e r m i t t e d t o p r o c e e d a s w e l l . 5T h e c o n s i d e r a t i o n s a r t i c u l a t e d b y t h e F o u r t h C i r c u i t( e . g . , t h e v a g u e a n d i n d i s c r i m i n a t e n a t u r e o f p u b l i cn u i s a n c e a c t i o n s ) a s t h e b a s i s f o r c o n c l u d i n g t h a t t h eClean Air Act preempts nuisance actions appliese q u a l l y t o n u i s a n c e a c t i o n s b r o u g h t u n d e r s t a t e l a wa n d t o n u i s a n c e a c t i o n s b r o u g h t u n d e r f e d e r a l c o m m o nl a w . T h u s , t h e S e c o n d C i r c u i t s d e c i s i o n t o a l l o w an u i s a n c e a c t i o n t o p r o c e e d u n d e r f e d e r a l c o m m o n l a wis inconsistent with the Fourth Circuits conclusionthat a nuisance action based on state law ispreempted. This is particularly true given that thisCourt has previously recognized that state nuisancelaw is not preempted under the Clean Water Act.

~ Connecticuts action in the Second Circuit case isbased on federal common law. The Clean Air Act does notspecifically preserve federal common law, but it doesspecifically save state common law, and Ouellettedid notaddress federal common law. Accordingly, the FourthCircuits conclusion that the Clean Air Act preempts statelaw nuisance actions cannot be squared with the SecondCircuits decision that nuisance actions based on federalcommon law may go forward. Should this Court concludein No. 10-174 that the Clean Air Act displaces federalcommon law, however, such a holding would not necessarilyresolve the issue presented by this petition given Congressexpress preservation of state common law.


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23International Paper Co. v. Ouellette, 479 U.S. 481(1987).

In their petition for writ of certiorari to this Court,American Electric Power and other electrical utilitiesnamed as defendants in the Second Circuit caseargued that certiorari should be granted based, inpart, on the inherent conflict between the decisions ofthe Second and Fourth Circuits. See Petition for Writof Certiorari, Am. Elec. Power Co. v. Connecticut, No.10-174, pp. 3, 23-24, 27, 29, 32 (filed Aug. 2, 2010); seealso Br. for Petitioners, p. 40, Am. Elec. Power Co. v.Connecticut, No. 10-174 (filed Jan. 31, 2011) (notingconflict between the decisions of the Second andFourth Circuits). They argued that the considerationson which the Fourth Circuit relied in support ofpreemption of state common law claims require the"displacement of the federal common law." Petition forWrit of Certiorari, Am. Elec. Power Co. v. Connecticut,p. 24. As these utilities recognize, the decisions of theSecond and Fourth Circuit cannot be reconciled.

The Fourth Circuits decision also conflicts withthe Sixth Circuits decision in Her Majesty the Queenv. City of Detroit, 874 F.2d 332 (6th Cir. 1989). In thatcase, the plaintiffs asserted that they would be harmedby emissions from a waste incinerator that had beenissued a permit under the Clean Air Act. Plaintiffsbrought their claim under the MichiganEnvironmental Protection Act, Mich. Comp. Laws Ann. 691.1201-.1207, a state statute that effectivelycodified a nuisance-like cause of action. This statute


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24left to the judiciary the task of "developing a statecommon law of environmental quality." 874 F.2d at338. The district court held that the Clean Air Actpreempted the plaintiffs state law claims. The SixthCircuit reversed, concluding that the Clean Air Act"displaces state law only to the extent that state law isnot as strict as emission limitations established in thefederal statute." 874 F.2d at 342.

The Sixth Circuit held that the plaintiffs claimthat a Michigan plant operating under a Clean Air Actpermit must meet "more stringent standards selectedby the Michigan courts" is not preempted by the CleanAir Act. 874 F.2d at 341. The Sixth Circuit concludedthat state common law that imposes more stringentrequirements than a Clean Air Act permit is"unaffected by federal law." Id. Thus, in the SixthCircuit, the issuance of a valid Clean Air Act permitdoes not preempt a cause of action sounding innuisance in which the plaintiff seeks to abate excessemissions.

In contrast to the Sixth Circuit, the FourthCircuits decision provides that a State cannot"supplantS] operating permits" with"mandates derivedfrom public nuisance law." 615 F.3d at 306. (Pet. App.28a) The Fourth Circuit reasoned that allowing anuisance action to be brought against a facility thathad been issued a permit under the Clean Air Actwould "upset the reliance interests" of permit holders"in favor of the nebulous rules of public nuisance." Id.(Pet. App. 30a) Under the Fourth Circuits decision, a


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25State where a stationary source is located cannot,through its own nuisance laws, impose more stringentrequirements on a facility than is set out in thefacilitys air emission permit. Thus, the FourthCircuits decision is in direct conflict with the holdingof the Sixth Circuit.

Prior to the Fourth Circuits decision, federalcourts had consistently held that the issuance of adischarge permit does not preempt an action innuisance. Philip Weinberg, "Political Questions"." AnInvasive Species Infecting the Courts, 19 Duke Envtl.L. & Policy Forum 155, 163 (2008) ("The courts havelong and consistently rejected assertions that theenactment of regulatory statutes like the Clean Air Actand Clean Water Act preempt states from publicnuisance actions."). Thus, the Fourth Circuitsdecision is in conflict with not only this Courtsdecision in Ouellette but also with the decisions of thecircuit and district courts that have faithfully appliedthat precedent. See, e.g., Her Majesty the Queen, 874F.2d at 343 (Clean Air Act does not preempt state lawcauses of action that impose more stringentrequirements than a federal permit given that"Congress did not wish to abolish state control"); Am.Elec. Power Co., 582 F.3d at 326 (rejecting defendantsargument that "vague and indeterminate nuisanceconcepts" should have no role in the resolution ofcomplex disputes relating to air emissions); Gutierrezv. Mobil Oil Corp., 798 F. Supp. 1280, 1285 (W.D. Tex.1992) ("This Court holds that the Clean Air Act doesnot preempt the plaintiffs various common law


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26claims."); Ouellette v. International Paper Co., 666 F.Supp. 58, 62 (D. Vt. 1987) ("plaintiffs state lawnuisance claim is not preempted by the CAA"); see alsoJason J. Czarnezki & Mark L. Thomsen, Advancingthe Rebirth of Environmental Common Law, 34 B.C.Envtl. Aff. L. Rev. 1, 9 (2007) ("Like the CWA, the CAAdoes not preempt state common law nuisance claims.").

T h e i s s u e p r e s e n t e d b y t h i s p e t i t i o n w i l l d i v i d e t h ec i r c u i t c o u r t s u n t i l r e s o l v e d b y t h i s C o u r t . H e r e , t h eF o u r t h C i r c u i t d e c l i n e d t o r e c o n s i d e r i t s d e c i s i o n e nb a n c . T h u s , i t i s c l e a r t h a t t h e F o u r t h C i r c u i t w i l l b eu n l i k e l y t o r e t r e a t f r o m i t s r e a d i n g o f O u e l l e t t e . T h ec i r c u i t s p l i t t h u s a p p e a r s t o b e f i r m l y e n t r e n c h e d . T ot h e e x t e n t t h a t t h i s s p l i t i s n o t r e s o l v e d b y t h i s C o u r tin American Electric Power Co. v. Connecticut, No. 10-174, the present petition should be granted in order tobring uniformity among the circuit courts on thisimportant issue.III. THE ISSUES PRESENTED ARE

EXTRAORDINARILYIMPORTANTANDSHOULD BE DECIDED BY THECOURT.It is difficult to overstate the importance of this

case. In factual findings that were uncontested byTVA on appeal, the district court found that exposureto particulate matter and ozone formed from emissionsfrom TVAs four plants closest to North Carolina haveresulted in significant adverse health effects in NorthCarolina. Exposure to these pollutants results in an


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27increase of premature deaths from adverse pulmonaryinflammation, cardiac arrhythmia and sudden infantdeath syndrome. 593 F. Supp. 2d at 821-22. (Pet.App. 69a-70a) These pollutants result in scarring ofthe lungs, acute respiratory pain, and increasedincidence of asthma and chronic bronchitis. Id. at 822-24. (Pet. App. 69a-76a) Deposition of particulatematter also causes the release of toxins in soils andlowers the nutrient content of soils, stunting thegrowth of vegetation. Id. at 823. (Pet. App. 73a)Finally, the district court found that particulatematter diminishes visibility in the "cherished, pristinewilderness areas" of western North Carolina. Id. at823. (Pet. App. 74a)

The decision below has a tremendous impact onthe environment and public health. At issue iswhether people in North Carolina will continue to dieas a result of TVAs excess emissions - even thoughthese deaths could be readily averted by installing andoperating modern pollution control equipment.Accordingly, the decision below has profoundconsequences on the ability of States to protect theircitizens from deadly emissions emanating from plantssuch as TVAs.

For well over a century, this Court has recognizedthat the ability of States to bring a nuisance action inorder to protect their citizens from air pollution is acore aspect of state sovereignty. Georgia v. TennesseeCopper Co., 206 U.S. 230, 237 (1907). In that case, thisCourt emphasized that States must have "the last


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28word as to whether * * * [their] inhabitants shallbreathe pure air." Id. The interest of the affectedState is particularly acute where, as here, theoffending facilities are near the State line, and so theeffects are felt fully in the downwind State. See id. at238 (facilities in question were "near the Georgialine"). More recently, in Massachusetts v. EPA, 549U.S. 497, 519 (2007), this Court reiterated that Stateshave a strong interest in "preserv[ing] [their] sovereignterritory" from the impacts of air pollution. The CleanAir Act was drafted with the intent of preserving theability of States to use nuisance law to protect againstenvironmental harm. 42 U.S.C. 7401(a)(3), 7416,7604(e); see William H. Rodgers, Jr., EnvironmentalLaw 3.1, at 125 (2d ed. 1994); H.R. Rep. No. 1146,91st Cong., 2d Sess. 56 (1970), reprinted in 1970U.S.C.C.A.N. 5356, 5388. The Fourth Circuitsdecision not only flies in the face of expresscongressional intent, it profoundly affects the interestof States, recognized for over a century by this Court,in protecting natural resources and the health of theircitizens.

The issues raised by this petition are particularlyimportant given that this Court has previouslyaddressed the role that nuisance actions should play inthe context of interstate pollution. For over twodecades, this Court has recognized that when pollutioncrosses state lines, an action may be brought forcommon law nuisance provided it is based on the lawof the State from which the harmful emissionsoriginate - notwithstanding a comprehensive federal


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29permitting scheme addressing such emissions.International Paper Co. v. Ouellette, 479 U.S. 481(1987). As set out above, the Fourth Circuit effectivelyignored both the holding and language of the Ouellettedecision. Opinions of this Court must not becircumvented by the lower courts. Review by thisCourt is necessary to bring the Fourth Circuit back inline with the precedents of this Court.

Finally, the split that the Fourth Circuitsdecision creates with the Second and Sixth Circuitsfurther highlights the importance of the issues raisedby the petition. The significance of this split ismagnified by the fact that electrical utilities aretypically large, multi-state businesses whose servicearea reaches into multiple circuits. TVAs servicearea, for example, extends into seven different Stateswithin the Fourth, Fifth, Sixth and Eleventh Circuits.~Thus, a plaintiff who brings a public nuisance actionagainst TVA can file that action in any one of fourdifferent circuits. Given the fact that public utilitieswill generally be subject to suit in multiple circuits,uniformity among the circuit courts is particularlyimportant.

a As a further example, the service area of AmericanElectric Power Co. (one of the utilities that petitioned forcertiorari in the Second Circuit case) spans eleven Stateswithin the Fourth, Fifth, Sixth, Seventh, Eighth and TenthCircuits.


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30The issue of whether the Clean Air Act preempts

public nuisance actions relating to emissions from apermitted facility is an important and recurring issueof federal law. The resolution of this issuesignificantly impacts our environment, States and theregulated community. Given the tremendous burdensand costs that TVAs excessive emissions unfairlyplace on North Carolina and its citizens, this Courtshould grant the petition and resolve this importantissue.

THE FOURTH CIRCUITS DISREGARDOF CONTROLLING DECISIONS OFTHE SUPREME COURTS OFALABAMA AND TENNESSEE MERITSSUPERVISORY REVIEW BY THISCOURT.Apparently recognizing that its holding was a

remarkable break from this Courts decision inInternational Paper Co. v. Ouellette, the Fourth Circuitattempted to buttress its holding by asserting thatbecause "TVAs facilities operate under permits," they"cannot logically be public nuisances under Alabamaand Tennessee law." 615 F.3d at 310. (Pet App. 38a)In doing so, however, the Fourth Circuits decisionruns afoul of this Courts repeated directive thatfederal courts are bound to accept the interpretation ofstate law made by a States highest court. Alabama v.Shelton, 535 U.S. 654, 674 (2002); Hortonville JointSchool Dist. v. Hortonville Educ. Assoc., 426 U.S. 482,


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31488 (1976). As set out below, both Alabama andTennessee law clearly recognize that the issuance of anair quality permit does not insulate the permit holderfrom an action for nuisance. Accordingly, the FourthCircuits effort to provide an alternative basis for itsholding should not insulate its decision fromcertiorari.7Moreover, supervisory review by thisCourt is appropriate whenever a circuit court floutsbinding Supreme Court precedent - even when the

~ The Fourth Circuit purports to set out three bases forits opinion. First, the Fourth Circuit held that NorthCarolinas action is preempted by the Clean Air Act.Second, the Fourth Circuit concluded that the district courtapplied North Carolina law rather than the law of thesource States. Third, the Fourth Circuit found that underAlabama and Tennessee law, the issuance of a permit toTVA bars a nuisance action. Assuming the Fourth Circuitwere correct that the district court improperly appliedNorth Carolina law (which the record does not support), theremedy - in the absence of a determination that the actionwas preempted - would be to remand with instructions toapply Alabama and Tennessee law, rather than dismissalof the action. Accordingly, if the Fourth Circuit erred inholding that the action was preempted, North Carolina isentitled to relief irrespective of the second basis for theFourth Circuits opinion. Thus, only the third basis of theopinion appears to stand as a separate and independentground for the Fourth Circuits holding. As set forth below,however, the third basis for the Fourth Circuits opinionshould not deny this Court the opportunity to resolve animportant issue of federal preemption.


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32lower court attempts to provide an alternative basisfor its holding. See S. Ct. R. 10(a).

Alabama law could not be clearer that theissuance of a permit authorizing the discharge ofpollutants does not insulate the permit holder from anuisance action. In Russell Corp. v. Sullivan, 790 So.2d 940 (Ala. 2001), the Alabama Supreme Courtrejected the defendants argument that the issuance ofa valid waste water discharge permit by the AlabamaDepartment of Environmental Management todefendants shielded them from a nuisance action:

[E]ven a lawful and careful activity, whencombined with culpable acts,8 constitutes anuisance if the activity hurts,inconveniences, or damages the complainingparty. Therefore, although [defendants]argue that their actions were in accordancewith state and federal regulations and thatthey were permissible under various permits,the plaintiffs may still maintain an action

s The Alabama Supreme Court has long recognized thatthe failure to install readily available pollution controlequipment may constitute a culpable act under Alabamalaw giving rise to an action in nuisance. Martin Bldg. Co.v. ImperiaILaundry Co., 124 So. 82, 85 (Ala. 1929). Here,the district court found as a fact that TVAs failure to installreadily available pollution control equipment resulted insubstantial harm to North Carolina and its citizens. 593 F.Supp. 2d at 830. (Pet. App. at 88a)


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33against [defendants] if they can prove theelements of nuisance.

ld. at 951 (citation omitted). Remarkably, the FourthCircuits opinion fails to cite to this controlling decisionof the Alabama Supreme Court, even though it wasexpressly relied on by the district court and cited inNorth Carolinas brief to the Fourth Circuit. 593 F.Supp. 2d at 829 (Pet. App. 86a); N.C. 4th Cir. Br,pp. 20, 50. Instead of relying on Alabama law aspronounced by the Alabama Supreme Court, theFourth Circuit based its opinion on what it would likeAlabama law to become. See 615 F.3d at 310 (Pet.App. 38a) ("As TVAs facilities operate under permits,required by Congress and EPA regulations, we cannotsay that the plant emissions of which North Carolinacomplains are a public nuisance.").

Not only is Alabama law clear that anenvironmental permit does not shield the permitholder from a nuisance action, this is particularly truewith respect to air pollution. The Alabama AirPollution Control Act expressly states:

[N]othing in this section shall be construedto limit or abrogate any private remediesnow available to any person for thealleviation, abatement, control, correction, orprevention of air pollution * * * *

Ala. Code 22-28-23(a). (Pet. App. 187a) In Borlandv. Sanders Lead Co., 369 So. 2d 523, 526 (Ala. 1979),


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34the Alabama Supreme Court held that in light of thisstatute, the trial court erred in concluding that apermit holders compliance with the Alabama AirPollution Control Act shields the defendant fromliability under common law causes of action.

The Fourth Circuit also attempted to re-writeTennessee law in its effort to craft an alternative basisfor its opinion. Like Alabama, the Tennesseelegislature has expressly recognized that neithercompliance with the States environmental statutesnor compliance with any permit issued under thosestatutes stands as a defense to a nuisance action. TheTennessee Air Quality Act expressly provides that theAct shall not "be construed to abridge or alter anyrights of action, civil or criminal, arising from statute,common law or equity." Tenn. Code Ann. 68-201-114. (Pet. App. 195a) In fact, the very permits issuedby the Tennessee Department of Environment andConservation provide that they do not authorize TVAto violate any state law - whether statutory orcommon law. 4th Cir. J.A. 1303, 1582, 1734.

Disregarding this controlling state statute, theFourth Circuit asserts that "[a]n activity that isexplicitly licensed and allowed by Tennessee lawcannot be a public nuisance." 615 F.3d at 310. (Pet.App. 38a) No Tennessee appellate court has ever so


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35held.9 Moreover, for well over a century, theTennessee Supreme Court has recognized thatlicenses, permits and charters issued by the State donot immunize the holder from a nuisance action.Louisville & Nashville Terminal Co. v. Lellyett, 85S.W. 881 (Tenn. 1904).

InLellyett, the State of Tennessee granted thedefendant a charter to construct a railroad terminal in

Although the Fourth Circuit cites to two Tennesseeappellate court decisions in support of its view of Tennesseelaw, neither case supports the opinion below. 615 F.3d at310. (Pet. App. 38a) InONeil v. State ex rel. Baker, 206S.W.2d 780 (Tenn. 1947), the Tennessee Supreme Court, ina two page opinion, considered the validity of a referendumon the sale of liquor. TheONeil opinion has no bearing onthe issue that was before the Fourth Circuit. Similarly, theFourth Circuits citation to Fey v. Nashville Gas & HeatingCo., 64 S.W.2d 61 (Tenn. Ct. App. 1933), is misplaced.Tennessee courts have long held that any unauthorizedobstruction of a public highway is a nuisance. See MemphisStreet Ry. v. Rapid Transit Co., 179 S.W. 635, 640 (Tenn.1915). In Fey, the Tennessee Court of Appeals noted, inpassing, that this doctrine had no applicability to the factsbefore it given that the defendant had been authorized toinstall gas pipes below the streets surface. 64 S.W. at 62.Here, North Carolinas nuisance action is not based on TVAimpeding traffic on a public highway. The Fey decisionsimply does not stand for the proposition that a license orpermit immunizes the defendant from a nuisance action.


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36Nashville. 85 S.W. at 881-82. An adjoining landownerbrought a nuisance action as a result of noise andsmoke emanating from the facility. Id. The TennesseeSupreme Court concluded that the fact that thelegislature had authorized the defendant to operate arailroad terminal did not prevent the facility fromconstituting a nuisance. The Tennessee SupremeCourt reasoned that although the Tennesseelegislature had granted the defendant the power tocondemn property for public use, the legislature couldnot grant defendant the right "to seriously impair ordestroy property not so taken." 85 S.W. at 886. TheTennessee Supreme Court held that the State "cangive no license" that will allow a defendant to operate"in disregard of the rights of others" and "withimmunity for the~ invasion" of those rights. Id. at 887(quoting Louisville & Nashville Terminal Co. v.Jacobs, 72 S.W. 954, 958 (Tenn. 1902)).

The Tennessee Supreme Court in Lellyett notedthat any legislation that authorizes the holder of alicense to engage in a nuisance would be "so utterlyrepugnant to our constitution and system ofgovernment * * * that it will never be attempted orupheld." 85 S.W. at 887. Accordingly, it is notsurprising that the Tennessee Air Quality Act providesthat it shall not "be construed to abridge or alter anyrights of action, civil or criminal, arising from statute,common law or equity." Tenn. Code Ann. 68-201-114. (Pet. App. 195a)


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37This Court should not generally concern itself

with issues of state law (even if wrongly decided by acircuit court). When, however, a circuit court blatantlyrefuses to apply this Courts precedent and then seeksto insulate its holding from reversal by asserting analternative basis arising from a clearly erroneousreading of state law, this Court should exercise itssupervisory powers to ensure that this Courts priordecisions are not circumvented. Regardless of howmuch the panel below disliked this Courts holding inInternational Paper Co. v. Ouellette, it was obligated tofollow that decision unless and until it is reversed bythis Court. The lower court did not have the option ofdisregarding that holding. The fact that the panel didso and then tacked on to its opinion erroneousstatements regarding Alabama and Tennessee lawshould not make this case any less worthy of certiorari- particularly given the fact that the Fourth Circuitclearly disregarded binding opinions of the highestcourts of those two States.

CONCLUSIONThe petition for writ of certiorari should be

granted. In the alternative, the petition should be heldpending this Courts decision in American ElectricPower Co. v. Connecticut, No. 10-174, and thendisposed of accordingly.


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38Respectfully s u b m i t t e d ,

ROY COOPERAttorney General of North CarolinaChristopher G. Browning, Jr.*Solicitor General of North CarolinaJames C. GulickSenior Deputy Attorney GeneralMarc D. BernsteinSpecial Deputy Attorney General

February 2011 *Counsel of Record

petition for cert (2.2.11)

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