Tuesday, March 24, 2009
A frequent reader brought this article in Toxic Law Reporter to my attention. Trent Taylor's article discusses the implications of the district court ruling in North Carolina v. TVA and other recent public nuisance rulings. Here's the opening paragraph:
On January 13, 2009, in North Carolina ex rel.Cooper v. Tennessee Valley Authority,—-F. Supp.2d—- Civil No. 1:06CV20, 2009 WL 77998 (W.D. N.C. Jan. 13, 2009) (hereafter ‘‘TVA decision’’), U.S. District Judge Lacy Thornburg of North Carolina declared that air emissions from three coal-fired plants located in eastern Tennessee and one plant located in Alabama, all operated by the Tennessee Valley Authority, are a public nuisance contributing to ‘‘significant hurt, inconvenience [and] damage’’ in North Carolina. As a remedy, the court ordered that the TVA proceed with plans to install enhanced pollution controls in these plants and reduce emission of certain pollutants by specific time limits. The court estimated that complying with its orders would cost, at a minimum, approximately $1 billion. The court found against the TVA despite its compliance with all applicable federal and state regulations. Yet few noticed this important decision–it caused barely a ripple in mainstream legal circles. This may be because while public nuisance as recently as several years ago was seen as the ‘‘hot’’ tort, some legal commentators have since written it off as a serious legal doctrine due to a string of victories for defendants in the most high-profile public nuisance litigation to date–claims against the past manufacturers of lead paint and pigment. However, it would be a mistake for practitioners to ignore this decision. Though it may not singlehandedly rehabilitate public nuisance as a tort theory of consequence in the minds of the legal literati, the TVA decision will have a number of far-reaching implications, especially when other recent decisions on public nuisance are taken into account. Indeed, it may herald in a new era of public nuisance suits against corporate defendants, [including those] seeking to redress environmental harms...