Last August, my partner John Gray raised the question whether one state’s elected officials can force companies and governmental entities located in another state to comply with its enacted laws and regulations. He suggested that, if you thought they could not do so, you should follow North Carolina’s public nuisance case against the Tennessee Valley Authority (“TVA”) over cross-border pollution. Sure enough, the recent decision by the North Carolina-based federal judge in the TVA case accomplished precisely that result. The court decided that emissions from some of TVA’s plants created a pollution-based public nuisance and ordered TVA to abate the pollution from four of its facilities within 100 miles of North Carolina. This sweeping decision merits further scrutiny.

At the outset, let’s note that we don’t have any particular problem with the court’s conclusion that pollution can create a public nuisance. In centuries past, public nuisance was often the only legal way to stop someone from fouling the air or water. But that was yesterday – and today we live in different times. Today, industrial pollution is regulated and controlled by state and federally issued permits and regulations. Those requirements plainly govern the emissions from the TVA plants. More importantly, it is also generally and legally accepted that governmentally-authorized activities (such as permitted emission) are deemed reasonable – and reasonable behavior cannot create a public nuisance.

If you accept this line of reasoning, then North Carolina’s remedy for “excessive” TVA emissions is not a public nuisance lawsuit, but rather an administrative or legislative action. North Carolina should have simply asked the state environmental agencies and the EPA to modify TVA’s permits to reduce emissions. If the agencies ignore North Carolina, the recent U.S. Supreme Court case of Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007), provides the grounds for North Carolina to ask the federal judiciary to order both the EPA and neighboring state agencies to do their job of controlling and curtailing pollution from TVA’s plants.

So we wonder why the court decided to wade into a problem it is ill-equipped to address and enforce. In its Memorandum of Opinion, the court acknowledged that the “ancient common law of public nuisance is not ordinarily the means by which such major conflicts among governmental entities are resolved in modern American governance,” that the principles of public nuisance law “are less well-adapted than administrative relief” to achieving the result North Carolina seeks, and that the EPA is the “chief arbiter of interstate air pollution concerns.” The court even grudgingly acknowledged that North Carolina’s efforts working through proper legislative channels bore some “interesting fruit,” but it quickly stated that its efforts “has not, thus far, resulted in the reductions of emission … that North Carolina is ultimately seeking.” Citing North Carolina’s lack of satisfaction with a legislative solution, the impatient court declared that “the federal judiciary, including this court, is a proper forum for the adjudication of North Carolina’s [public nuisance] claims".

The North Carolina-based federal court then resorted to interpretations of Alabama, Kentucky and Tennessee nuisance law, eventually finding that some of TVA’s emissions in those states created a public nuisance and then ordered the nuisance to be abated. Interestingly, the court held as a matter of law, that the statutory pollution control regulations in the states where TVA operated are “inapplicable to this case, because all of Plaintiff’s alleged injuries are within North Carolina.” Ignoring state pollution control regulations and permits, the court declared that “an injunction requiring prompt installation and year-round usage of appropriate pollution control technologies [at certain TVA facilities] is a necessary outcome of this litigation.”

Some legal commentators will surely point to this case to demonstrate the need for additional Congressional action to curb air pollution. But we think differently. The TVA court’s decision is a bald exercise of regulation through litigation and loudly sends the message that public nuisance litigation is an acceptable, preferable and more expedient method to address not only cross-border pollution disputes, but cross-jurisdictional pollution disputes. The implications are enormous. What’s to stop a city or county from equability suing a legally operating industrial facility in another county for public nuisance – if all it must do is complain that the state and the EPA have not adequately satisfied its requests to reduce emissions? If this decision stands, it provides precedent – good or bad depending on your perspective – that litigating can be more effective than negotiating reductions with governmental authorities. It is another arrow in the arsenal of attorneys wanting to use public nuisance lawsuits as a means to reshape public policy.