Nuisance Doctrine Not Available to Require Power Plant Emissions Controls

that [they] approach the task of examining some of the com- basis in alabama and tennessee law. our resolution of the other issues in of emissions within the state on the ability of other states to general, tad thomas, assistant deputy attorney general, and 4,508 tons of so2 tva has already installed numerous pollution controls at gas & elec. co., 461 u.s. at 204 (ellipsis in original, citation 26 state of north carolina v. tva ments, would most assuredly keep matters unsettled. con- gray, washington, d.c., for jim cooper, phil roe, steve states to have independent and plenary regulatory authority states have enacted further rules implementing the act and the down of the emissions each tva plant would produce if the facts in cases, and also makes the resulting rules readily hampshire; state of new jersey; provides for a process whereby their interests will be consid- for public representation, washington, d.c., for national group of stationary sources emits or would emit any air pollu- summarized his findings and recommended installation of of its coverage. the fact that the process has been regulated north carolina attempts to frame this case in terms of pro- not an appropriate course. the laws in place have been standard." ouellette, 479 u.s. at 498 n.18. it apparently chose regulation of airborne emissions. and so2 of public nuisance. congress, established by the epa, and implemented through scrubbers and scrs on each electric generating unit at the allowed by tennessee law cannot be a public nuisance. see, objectives" is to "produce, distribute, and sell electric power." ney general, bismarck, north dakota, for the state of cerns about emissions. as already noted, the epa retains ulti- however, in light of the supreme court's direction in pacific amici supporting appellee. caps for tva." indeed, dr. staudt believed his suggested empted the field of emissions regulation. see pac. gas & or public profanity; with the public peace, as by loud it is worth describing this system in some detail. the fed- ), 50.9 & 50.15 (ozone), 50.11 (nox finally, any state that believes that it is being subjected to ted." 42 u.s.c. § 7426(a)(1). 593 f. supp. 2d at 818, at the end of which it issued an ated system for accommodating the need for energy produc- nessee, alabama, and kentucky. plaintiff-appellee, new york; douglas f. gansler, attorney general, steven m. environmental law professors, amicus supporting appellee. at 212-13 (quoting rice v. santa fe elevator corp., 331 u.s. of any emission standard or limitation or to seek any other (fed. cir. 2001) (en banc) ("when discussing the contours mended by dr. staudt, the injunction demanded installation of exhibit 95 showed precisely how many tons of so2 coal. c. emission rates that would be required for the clean smoke- claim that "a state may completely prohibit new construction before the fact by commenting and objecting to the proposed scrubbers and scrs were installed per dr. staudt's recom- result would be a serious interference with the achievement of 3state of north carolina v. tva over a single discharge would lead to chaotic confrontation naaqs may be adopted or modified. 42 u.s.c. permits, the clean air act provides for suits "against any per- injunction required tva to install and continuously operate tion agency (epa) has issued numerous regulations, and u.s. 837, 865-66 (1984) (acknowledging the epa's "great under alabama and tennessee law where tva is in compli- 218, 236 (1947)). while the court recognized that california new mexico, new york, oklahoma, rhode island, and ver- senior attorney/director, georgetown university indeed, a patchwork of nuisance injunctions could well washington, d.c.; george s. kopp, public nuisance way that a permit-authorized activity can be enjoined under a "[w]hen the federal government completely occupies a given of the rulemaking process and a cooperative partnership with per cubic meter (15 µg/m3 title iv, acid deposition control); 42 u.s.c. § 7651b(b) gordon, john tanner, parker griffith, and travis childers, one can argue whether expert witnesses in bench trials can gram that limits the amounts and types of emissions that each which threatens to cause a riot; with the public com- apply the standards found in the clean smokestacks act to decisions threatens to put at naught the . . . process established 27state of north carolina v. tva congress has placed its imprimatur. regulations and permits, invoke. by federal law, states are required to provide com- lished. this is especially so in light of the fact that "`the pur- tva's system of eleven power plants as a whole would be stacks act to be applied to tva. we need look no further operates each of the four plants at issue in this case in confor- across a remedy derived entirely from the north carolina act. see date on which commencement of construction is to be permit- new york, for natural resources defense council, amicus statutes and regulations addressing the problem represents association; natural resources blackburn, representative; responding to tva's first interrogatory, north carolina indi- 42 u.s.c. § 7416. it passed the north carolina clean smoke- ent air quality standard." 42 u.s.c. § 7410(a)(2)(d), (d)(i), & have been reluctant to enjoin as a public nuisance activities case does not join the issue of whether tva is in compliance alabama law certainly recognizes this principle. the ala- 25state of north carolina v. tva amici supporting appellant. charles h. knauss, michael b. § 7401 et seq. pursuant to the act, the environmental protec- tifiable effects on public health or welfare which may be menting the sweeping reforms that north carolina desires." to do so. there is no way to predict the effect on tva or utili- try in order to guarantee both a healthy populace and a north carolina v. tenn. valley auth., 593 f. supp. 2d at 817. immunity was waived because the clean air act required v. city of fairfield, 375 so. 2d at 441-43; st. louis-san fran- utility air regulatory group; develop expertise so that it can provide states with informa- plants. as far as the record before us indicates, tva currently ized knowledge in chemistry, medicine, meteorology, biol- source is located." 479 u.s. at 487. while ouellette involved national association of manufacturers, states. in the words of ouellette addressing the similarly com- moved to dismiss based on the discretionary function doctrine cisco ry. co. v. wade, 607 f.2d 126, 131 n.6 (5th cir. 1979) ouellette, 479 u.s. at 494. the court indicated that the clause it embodies carefully wrought compromises states the obvi- arena respect the strengths of the agency processes on which for downwind states like north carolina to address any con- "[s]tates can be expected to take into account their own nui- lution cannot alter the fact that its decision threatens to scuttle a system that seeks to keep air pollutants at or below safe sis added); see also fowler v. fayco, inc., 275 so. 2d 665, 321, 322 (ala. 1948) (quoting branyon v. kirk, 191 so. 345, tent." appalachian power co. v. epa, 249 f.3d 1032, 1040 (d.c. cir. instructed that it is appropriate for us to look to the pertinent while expressing the utmost respect for the obvious efforts 20 state of north carolina v. tva moting economic development in the tennessee valley son . . . who is alleged to have violated . . . or to be in viola- fights, see keeton, supra, at 643-45, we will be hard pressed act, compare 33 u.s.c. § 1365(e) with 42 u.s.c. § 7604(e), ural resources defense council, new york, ment cannot prosper, in this way. be increasingly difficult for anyone to determine what stan- congress left no room for the states to supplement it." pac. north carolina is by no means without remedy. as already iv. emis- measuring emissions levels and air quality, see 40 c.f.r. section 126's cross reference contains an apparent scrivener's error as those levels as necessary. 42 u.s.c. § 7409(b)(1) & (2). the and nox calculations, which he testified that he created to provide a would "affect only one of a fastidious taste") (quoting ala. between sovereign states." id. at 496-97 (quoting illinois v. this information and again referred to his proposals during emissions can also be reduced in alternative ways, such as works in the streets, harboring a vicious dog, or the , pm2.5 have ample opportunity to make its views known. in addition, decision and the agency's ability to rely on the expertise that mented, "one searches in vain . . . for anything resembling a a. the emissions levels demanded by the clean smokestacks act ronment alike. moreover, the injunction improperly applied air quality standards with standards whose content must await a result, it did not rule that they were a public nuisance. tion 126 claims for further epa consideration in light of its source state public nuisance law as a "foreign quasi sovereign" has no authorized by law."). assumed that the north carolina district court did apply ala- than the direct statements of the north carolina law itself. sions with the installation of scrubbers and scrs." the fact ) for a twenty-four hour period. 40 669 (ala. 1973) (nuisance not intended to prevent harms that u.s.c. § 7410(a)(2)(c), and must implement a permit pro- required in the clean smokestacks act in 2013" and used decision not as the chemist, biologist, or statistician that we to levels the air permitting process, testified that in issuing emissions and trade program implemented by congress in 1990 to office of the attorney general, cheyenne, wyo- control technology" as well as "data on alternative fuels, pro- other regions by strategically positioning sources along an valley auth., 593 f. supp. 2d at 816. the epa initially denied 215.107d(b)-(e). alabama and tennessee, applies in an interstate nuisance dis- this list of possible remedies does not even include private ered and balanced by the source state and the epa." 479 u.s. north carolina claims that because the clean smokestacks unfortunately, while the district court acknowledged the have been extensively regulated nationwide by the clean air after ordering that "tva shall adhere to the following caps federal and state government could somehow constitute a congress, the epa, and the states have collectively estab- home state law extraterritorially, in direct contradiction to the plex scientific issues presented in cases of this sort with some example, a person of "ordinary health and sensibilities, and act, a number of controls can be fitted to coal-fired power energy commission) control over issues relating to nuclear tive branch agency, established in 1933 and tasked with pro- installing selective non-catalytic reduction (sncr) controls. tinuous operation of those pollution controls once installed. required to create and submit to the epa a state implementa- mississippi; state of new the case at bar mirrors pacific gas & electric insofar as it clean air act in order to emphasize the comprehensiveness north carolina's petition because it believed a new set of reg- the tennessee valley authority (tva) is a federal execu- u.s.c. § 7426(a)(1). this notice must be given to any region wood, solicitor general, katherine kennedy, special deputy standards in particular as "vague" and "indeterminate," id. at ordinary modes of living," jenkins v. csx transp., inc., 906 that congress thought that a judge holding a twelve-day reversed and remanded by published opinion. judge wilkin- other states' attainment or maintenance of naaqs air emis- ever. prevailing high pressure weather systems in the states remedy that would be "equivalent to the requirements of the " (particulate matter less than 2.5 microme- 42 u.s.c. ation of manufacturers, american petroleum institute, public injunction requiring the installation and continual, year-round it develops." lead indus. ass'n, inc. v. epa, 647 f.2d 1130, seven different states in the belief that its permits allowed it representative; phil roe, frank h. lancaster, senior attorney, maria v. gillen, office stand, the injunction would encourage courts to use vague role of both the source and affected states, and specifically nox association; state of tennessee, before wilkinson, niemeyer and shedd, u.s. at 499. requested the federal courts to impose a different set of stan- ). in the atmosphere, both compounds can trans- gress opted instead for an expert regulatory body, guided by mit to operate in a particular fashion. "courts traditionally argues. indeed, the act directs the epa to ensure that its air tor general, william g. parker, jr., assistant attorney gen- stationary source within the areas covered by the [sip]," 42 wehrum, hunton & williams, washington, d.c., for huffman; f. scott kieff; john j. unlike tva, power plants in north carolina historically tiplicity in international paper co. v. ouellette, 479 u.s. 481 air. but the problem is not a neglected one. in fact, emissions ment periods before sips can be issued or modified, and elec. co. v. state energy res. conservation & dev. comm., ulations it had promulgated, known as the clean air interstate and other judgments, and we must respect both congress' can still be a nuisance, that proposition is simply not relevant coastal council, 505 u.s. 1003, 1055 (1992) (blackmun, j., acknowledged that "public nuisance principles . . . are less court utilized exhibit 97's csa-equivalent 2013 emissions provided by north carolina to show how tva could comply unpredictable consequences and potential confusion. "it is illegal liquor establishments, gambling houses, inde- sions caps that dr. staudt presented in plaintiff's exhibit 97. the ways so2 decision. see sierra club v. epa, 313 fed. appx. 331 (d.c. be illegal in order to be a nuisance, that is not the situation contemplate, north carolina's approach would reorder the further, north carolina repeatedly affirmed its desire to retrofitting plants with burners that result in lower nox parks conservation association, natural resources defense law sips, it cannot be in violation of less-stringent state law stringent requirements than source state nuisance law. ala- envisioning a role for the states that the clean air act did not provided that tva may "sue and be sued in its corporate ing units to reduce their emissions of nox 129 s. ct. 1159, 1171 (2009) (stevens, j., concurring in part relief." 42 u.s.c. § 7604(e). we must weigh that admonition, noted that "if affected states were allowed to impose separate state of maine; state of olina admits it will be over a billion dollars, while tva esti- c. gulick, senior deputy attorney general, marc bernstein, icy, 78 harv. l. rev. 921, 930-37 (1965). rulemaking can in a highway or a navigable stream, or creating a condi- indeed, north carolina has already filed section 126 claims sips are structured, but regardless of their choices, sips must state of louisiana; state of (tenn. 1947); fey v. nashville gas & heating co., 64 s.w.2d united states court of appeals the extensive system of anti-pollution mandates that promote by congress." palumbo, 989 f.2d at 161. an epa-sanctioned tive and judicial appeals of state permitting decisions, see ala. act compliance" containing "in a single, comprehensive set of the states where emissions sources are located, in this case goodstein & nelson p.c., washington, d.c.; richard issued . . . would be rendered meaningless." ouellette, 479 designed by congress to protect our air and water. plaintiff "emissions rates that were equivalent to what would be are equipped with scrubbers. similarly, while one-third to (ala. 1959) (same). the law draws a distinction between stringent controls on in-state coal-fired plants as a matter of or significant reduction of emissions." 42 u.s.c. significantly to pollution in north carolina. id. at 831-32. as tent across the country. ham v. city of fairfield, 375 so. 2d 438, 441 (ala. 1979) process and the plans and permits related to it would not meet b. a. ties, including the tennessee valley authority, to achieve demands of north carolina's clean smokestacks act on dakota, office of the attorney general, bama and tennessee nuisance law only prohibits activities id. while states are responsible for promulgating sips, they while we must overturn the district court's injunction, chevron, u.s.a., inc. v. natural res. def. council, inc., 467 the plants most in need of pollution controls to those with the public nuisance standards to scuttle the nation's carefully cre- dollars on power generation units that supply electricity to at 497. operating unreasonably. north carolina law provided dr. at 497. it is not open to this court to ignore the words of the states to determine whether a single source constitutes a nui- and epa approval of sips, see 42 u.s.c. § 7607(b)(1), while the agency with the responsibility for making these scientific safety, it completely occupied the field of nuclear safety regu- is at least in part because public nuisance is an all-purpose tort fairness coalition, washington, d.c.; robin s. con- cerns they have regarding the adequacy of an upwind state's create perverse incentives for power companies to increase with the various permits under which it operates, and we parenteau, vermont law school, environmental and work of standards, to the detriment of industry and the envi- it is technically accurate to state that an act that is not illegal public nuisance rulings in this case. the district court recog- naaqs are set to protect the surrounding environment. in tennessee valley authority, there are, therefore, a host of reasons why congress pre- authority, knoxville, tennessee, for appellant. kevin 21state of north carolina v. tva must behave in a negligent manner if its expressly permitted sions. "naaqs must protect not only average healthy indi- 1146 (d.c. cir. 1980). see also id. ("we must look at the lic morals, as in the case of houses of prostitution, reporter, nashville, tennessee, for the state of tennes- with respect to any such national primary or secondary ambi- ex ante under such a system, for any judge in any nuisance ance with the north carolina clean smokestacks act. and that must be completed by 2013. shurtleff, attorney general, state of utah, office of and scope of the common law, the supreme court has amendment referenced what is now section 7410(a)(2)(d)(i). the epa assurance that ouellette recognized the considerable potential a result of renumbering during extensive amendments in 1990. the section use to regulate prostitution, obstacles in highways, and bull- the difficulties with north carolina's approach in this liti- in addition, before new construction or modifications of a that dr. staudt calculated to show how tva could meet the reversals on appeal, the need to revisit and modify equitable as a natural byproduct of the power generation process, staudt with the benchmark for his recommendations regard- smokestacks act that it violates ouellette's directive that appeal from the united states district court that states retained their traditional power to regulate electri- cohen, marsha blackburn, lincoln davis, zach wamp, bart seven states. much of this power is generated by eleven tva appropriate deadline" because "it is consistent with the clean sip call, to demand that states modify their sips if it believes kieff, and john j. park, jr., amici supporting appellant. erik be no abatable nuisance for doing in a proper manner what is enables uniform application across industries, lessens the like- where tva operates tend to cause emissions to move east- for nuisance . . . if the defendant's activities are specifically ily by the epa. rather, "a reasonable time for interested per- § 7410(a)(1), (k)(2) & (3). once a sip is approved, however, ing the steps tva should take to bring its plants into compli- tion which makes travel unsafe or highly disagree- its decision was tied so tightly to the north carolina clean vii. they are inadequate to meet naaqs. 42 u.s.c. § 7410(k)(5). indeed, the district court properly recognized that "[t]he against its four plants, and we granted leave to the state of vi. until its safety concerns are satisfied by the federal govern- merely not illegal versus one that is explicitly granted a per- 33state of north carolina v. tva rently have scrs, tva is installing sncrs and is also cumstance that may arise in every future nuisance action. in did not, after all, impose the clean smokestacks act extrater- also restatement (second) of torts § 821b cmts. b & c; com- sullivan, solicitor general, william f. brockman, deputy state of california; state of 30 state of north carolina v. tva nized that "even in the present dispute, north carolina began f.2d 30, 33 (2d cir. 1981). this is especially true "where the counsel giedd, assistant attorney general, state of south air act and an ill-defined omnibus tort of last resort could not fashion an injunction. to derive any manageable criteria. as justice blackmun com- united states of america; the government." new england legal found. v. costle, 666 tion requiring immediate installation of emissions controls at tainment in, or interfere with maintenance by, any other state epa requirements. together, these laws and regulations form ing without such a permit, 42 u.s.c. § 7661a(a), and each it would be this is that we cannot state categorically that the ouellette state law, as it is allowed to do under the clean air act. see lina v. tenn. valley auth., 593 f. supp. 2d at 831. as recom- principle in the common law of nuisance." lucas v. s.c. sance laws in setting permit requirements." ouellette, 479 means, including . . . litigation to induce other states and enti- . . . [is] so pervasive as to make reasonable the inference that its pursuit of relief by utilizing the normal administrative epa, 531 f.3d at 901, it also remanded north carolina's sec- solicitor general, state of maryland, office of the and conflicting standards to guide emissions. these difficul- fits of providing proactive instead of reactive control, creating injunctive decrees, of course, are rulemakings of a sort. mccutchen llp, washington, d.c., for chamber of § 7409(a)(1)(b), (b)(1) & (2). the epa also has adopted alabama and tennessee permits, north carolina has these scenarios probably fail to exhaust the full scope of methods by which the federal statute was designed to reach because tva's electricity-generating operations are expressly secondary naaqs, 42 u.s.c. § 7409(b)(2). primary arbitrary border line. practice, the two standards are often, though not necessarily, wigmore, robert v. zener, sandra p. franco, bingham cubic meter (35 µg/m3 ensure that its sip "contain[s] adequate provisions prohibiting and dislocations would be heavy indeed. without a single sys- remains, not surprisingly, a matter of dispute. the system of see, e.g., 42 u.s.c. §§ 7409(a)(1)(b), (b)(1) & (2), under permits, required by congress and epa regulations, we ous. but the framework is the work of many, many people, hearings, albeit in a more focused and circumscribed manner. reversed cair because it believed aspects of the rule were cannot say that the plant emissions of which north carolina attorney general, frankfort, kentucky, for the com- and regulations controlling such interstate emissions, north completion of all scrubber and scr construction. id. at 827, new york, office of the attorney general, new york, reliance interests. david l. shapiro, the choice of rulemak- one-half of the country's coal plants have scrs to control attorney general, montgomery, alabama; brian m. and so2 28 state of north carolina v. tva association, washington, d.c., for amici supporting tain, and modify emissions standards and to do so with the aid emis- information that regulatory bodies can consider. "courts are v. bradley, ronald a. cass, james l. huffman, f. scott eral clean air act, 42 u.s.c. § 7401 et seq., is the primary restrict any right which any person (or class of persons) may be more stark. we are hardly at liberty to ignore the supreme calculations in fashioning its injunction. the court essentially savings clause states that "[n]othing in this section shall s.w.2d 460, 462 (tenn. ct. app. 1995) (emphasis added), or ing how to meet naaqs are left to individual states. 42 of the storage of explosives, the shooting of fire- emissions. indeed, this suit does not present a challenge to (plaintiff's ex. 97). indeed, the court imposed the limitations the epa for approval before they become final. 42 u.s.c. ). for instance, the naaqs level for pm2.5 "an ordinary reasonable man," ala. code § 6-5-120 (empha- the utility air regulatory group; quentin riegel, carolina chose to bring a public nuisance suit against tva in air pollution policies. to say this regulatory and permitting ) and nitrous tva. when the north carolina attorney general filed the court also established a schedule of so2 was ambiguous as to which state actions were preserved and ity, knoxville, tennessee, for appellant. michael d. good- only scientific knowledge, but also the varied practical per- in order to comply with requirements under the clean air the country is set at an annual average of fifteen micrograms or vague and uncertain nuisance standards. in addition to against the epa if it fails to perform any non-discretionary shapiro also observed that the general nature of rulemaking interstate emissions may file what is known as a section 126 wide, only one-third to one-half of the country's coal plants derived from public nuisance law, but one suspects the costs act for four decades. the real question in this case is whether broad reliance interests. tva, for example, spent billions of dict the standard" for lawful emissions, and "[a]ny permit chase power from tva. tva appealed the injunctions before us in this case. see fey, 64 s.w.2d at 62. thus while plex area of environmental law." id.; see also restatement this case makes it unnecessary for us to resolve this issue. its coal-fired plants. so2 mings, llp, birmingham, alabama, for intervenor. chris- levels. for the fourth circuit sance action brought under source state law. 479 u.s. at 497- future. as the supreme court has emphasized, the legal diffi- nuisance law of alabama and tennessee on its way to crafting ambient air quality standards (naaqs), "the attainment permits the state takes into account the same factors that very real threat that the inquiry into the validity of its permit representative; steve cohen, respective functions of courts and agencies. per year--the precise states are accorded flexibility in determining how their cross-references" and that this "substitution of `(ii)' for `(i)' was inadver- welter of conflicting court orders across the country. section 126, 42 u.s.c. § 7426." north carolina v. epa, 531 would be considered by a court in a nuisance case. the only law remedies that may be available to north carolina. indeed, chamber of commerce of the dioxide (so2 spectives of industry and environmental groups. as david tem of permitting, "[i]t would be virtually impossible to pre- plants to reduce the amounts of so2 petroleum institute; public occurred, it remains free to pursue such avenues as well. w. page keeton et al., prosser and keeton on the law of "court must apply the law of the state in which the point state of rhode island; state of v. tenn. valley auth., 593 f. supp. 2d at 833 with j.a. 1112 that believe they are suffering from improper interstate pollu- had not put sufficient controls on their emissions, choosing and subject to congressional oversight, to implement, main- clean air act allows petitions for judicial review of a broad reversed. they must regulate "the modification and construction of any closing argument, it is not at all surprising that the district pleted this year will bring that number above 50%. nation- water act, all parties agree its holding is equally applicable north dakota; lawrence e. long, attorney general, roxanne , nox statute, ordinance or administrative regulation does not sub- involves an attempt to replace comprehensive federal emis- the agency issues the permit, the permit-holder would face the gordon, representative; john tons of nox naaqs are intended to protect individuals, while secondary against any entity that constructs a source of emissions with- to regulate smokestack emissions by the same principles we decision compromised principles of federalism by applying opportunities for notice and comment, allowing flexibility in activities which are merely not illegal, see ala. code § 6-5- ) and sulfur in sum, tva's plants cannot logically be public nuisances ing ethyl corp. v. epa, 541 f.2d 1, 36 (d.c. cir. 1976)); lators to receive broad inputs into the regulatory scheme. expected from the presence of such pollutant in the ambient 15state of north carolina v. tva dissenting). instead to purchase emissions allowances under an epa cap north carolina "had the opportunity to protect [its] interests means by which such major conflicts among governmental and disturbing noises, or an opera performance not all emissions are generated by in-state sources, how- alabama and tennessee's sips, the permits issued to tva nuisance law to contradict joint federal-state rules so meticu- circuit judges. based emissions standards. the act even requires the epa to viduals, but also `sensitive citizens'--children, for example, the actual amount, there is no question that costs will be ment" was rejected. id. at 212. the court explained that ing or adjudication in the development of administrative pol- (under alabama law, "[n]egligence is an element of a claim reductions in emissions of oxides of nitrogen (nox decides to modify its sip in the future, north carolina will cesses, and operating methods which will result in elimination 2013 deadline for installation of emissions controls was "an state of north dakota, office of the attor- son wrote the opinion, in which judge niemeyer and judge ward into north carolina and other states. north carolina v. retained the right to regulate for traditional utilities purposes, lutant in amounts which will contribute significantly to nonat- right to act is in any way regulated by the federal act.'" id. argued: may 14, 2010 so2 published forum shopping and races to the courthouse, the chances of in addition to this framework, there are a number of checks large chemical plants--often larger than the power plants jaber, david j. depippo, hunton & williams llp, that substantially interfere with the average person--for some 20 to 40% of nox emissions eral, monica wagner, assistant solicitor general, state of themselves--that remove so2 trol at its source is the primary responsibility of states and mendation. at the end of plaintiff's exhibit 97, the sum total lina clean smokestacks act on a similar timetable." and in carolina asked the court to require tva to install controls "in argued: harriet a. cooper, tennessee valley triggered by injunctions are likely inferior to system-wide 2013. id. at 832. in addition to these requirements, the district if north carolina believes that tva is not complying with its may be affected by such source at least sixty days prior to the tasked with enforcing the limitations they adopt in their sips. 2009). although there are lengthy clean air act provisions detriment of the environment itself. waste techs. indus., 989 f.2d 156, 159 (4th cir. 1993). stringent emission rates than those required by federal law on georgetown university law center, institute a nuisance suit against a source regulated under the clean 461 u.s. 190, 203-04 (1983). we cannot anticipate every cir- amounts that dr. staudt proposed. compare north carolina limits for each electric generation unit at the four plants, cap- special deputy attorney general, north carolina sance grounds. as the supreme court has made clear, 9state of north carolina v. tva and should any of these avenues fail to satisfy the state, the north carolina law extraterritorially to tva plants located in or people with asthma, emphysema, or other conditions ren- mental entity," 42 u.s.c. § 7418(a), and because congress might be reopened in an altogether different forum." emption is whether `the matter on which the state asserts the emissions are acceptable and has the responsibility to modify tion about available emissions controls, including "cost of the conclusions of agencies, and upset the reliance interests of ties are heightened if we allow multiple courts in different north carolina has a number of possible paths to pursue in its 2001) (citation omitted). one can, of course, debate the respective merits of agency dissatisfied with the air quality standards authorized by gas & electric, 461 u.s. at 203-13. there the court ten notice to all nearby states the air pollution levels of which scheme was just below the clean smokestacks act caps pres- for the foregoing reasons, we reverse the judgment of the with universal approbation. litigation that amounts to "noth- the attorney general, salt lake city, utah, for the istrator [of the epa] for a finding that any major source or entities are resolved in modern american governance." north lic health." 42 u.s.c. § 7409(b)(1). naaqs are further sub- § 7426(b). as noted earlier, section 7410(a)(2)(d)(i)(i) pro- act demands only system-wide caps, dr. staudt's plant- decision below does little more than mention the black letter trict court adopted against the four tva plants at issue here. 31state of north carolina v. tva 6 state of north carolina v. tva reduction benefits, and environmental impact of the emission regime is comprehensive would be an understatement. to say attorney general, baltimore, maryland, for states of califor- sions, burning types of coal that have low nox cent exhibitions, bullfights, unlicensed prize fights, 18 state of north carolina v. tva the cost of compliance with the district court's injunction ceivable suit under nuisance law. we can state, however, with nuisance at common law, conduct that is fully authorized by with its requirements. to replace duly promulgated ambient national association of "its requirements become federal law and are fully enforce- states an extensive role in the clean air act's regulatory utilization of plants in regions subject to less stringent judicial with an extraterritorial application of its law and used them to sips must provide for written notice before a new source can certainly north carolina intended for its clean smoke- the required notice and comment periods detailed above, scrubbers and scrs at each of the plants by december 31, indeterminate." id. at 496 (citation omitted). torts 643-45 (5th ed. 1984) (citing numerous examples). see against the four tva plants is uncertain, but even north car- did not preserve a broad right for states to "undermine this chapter or (b) an order issued by the administrator or a state a similar way the state of north carolina is requiring [in-state (1981)) (internal quotation marks omitted). the upshot of all and nox stacks act extraterritorially in alabama and tennessee. the includes such broad-ranging offenses as: burning low nox griffith, representative; travis emphatic that a state law is preempted "if it interferes with the sons to submit written comments" must be provided before dards govern. energy policy cannot be set, and the environ- clean air act may allow for some common law nuisance 832. nor is section 126 the only remedy north carolina could erning preparation, adoption by the state, and submission to standards that are scientifically grounded and thus give rise to measures, means, or techniques" to ensure that each state id. at 832. it also adopted dr. staudt's 2013 timeline for final that encompasses a truly eclectic range of activities. it and codified at 42 u.s.c. § 7426(b), the section states that mechanism under which emissions in the united states are david b. rivkin, jr., lee a. casey, mark w. delaquil, the district court expended in this case, we doubt seriously bama supreme court has repeatedly explained that "there can states to ascribe to a generic savings clause a meaning that the 99. at the same time, however, the ouellette court was brought under these circumstances is barred by preemption monwealth edison co. v. united states, 271 f.3d 1327, 1353 , they have the benefit of costing the western district of north carolina, seeking an injunction national parks conservation that there may have been other ways that tva could reach the supreme court addressed this precise problem of mul- carefully drawn statute through a general savings clause." decrees. alabama br. at 62. similarly, rushed plant alterations 470, 485 (1996)). a field of state law, here public nuisance lette, 479 u.s. 481 (1987). finally, even if it could be accessible in a single location. id. at 935-41. motions. north carolina v. tenn. valley auth., 439 f. supp. most problematic method for resolving interstate emissions explained that when congress chose to give the nuclear reg- mont, amici supporting appellee. district court and remand with directions to dismiss the action. 16 state of north carolina v. tva levels, however, the epa does not directly regulate actual individual states will be allowed to supplant the cooperative state citizens. tva as well as alabama as intervenor argue with some lead to increased air pollution. differing standards could and it is in place. source of emissions may begin, a sip must provide for "writ- ritorially because it only imposed caps on the four of tva's reversed and remanded environmental law professors; in addition to the problems noted above, the district court's carolina's proposed system-wide caps for nox ington, d.c., for american lung association and american 50.13 (pm2.5 decades of thought by legislative bodies and agencies and the inconsistent with the clean air act, see north carolina v. nia, connecticut, delaware, illinois, iowa, maine, maryland, 335 (citing 42 u.s.c. § 7604(a)). provided the basis for dr. staudt's opinion that tva was thought not. it was certainly open to the legislative branch to the epa, 40 c.f.r. § 51, and all sips must be submitted to in such detail has contributed to its inclusiveness and predict- attorney general, baton rouge, louisiana, for the sion levels. thus, section 126 provides an important method with respect to such a standard or limitation." 42 u.s.c. odd, to say the least, for specific state laws and regulations to see, amicus supporting appellant and intervenor. patrick use the vagaries of public nuisance doctrine to overturn the importantly, in plaintiff's exhibits 95 and 97 dr. staudt meets naaqs. 42 u.s.c. § 7410(a)(2)(a). states are also permit holder is allowed to discharge, 42 u.s.c. state sovereigns to bring public nuisance suits on behalf of their out-of- petition. named after the original section of the clean air act expert at statutory construction, while agencies are expert at equivalent 2013 emissions," then gave a unit-by-unit break- baker & hostetler llp, washington, d.c., for gerard local governments," 42 u.s.c. § 7401(a)(3), decisions regard- permit is intended to be "a source-specific bible for clean air ing more than a collateral attack" on the system, however, than courts were likely to possess. "congress has entrusted that may be affected before such changes can take place. id. tion. "[d]ownwind states retain their statutory right to petition ming, for the state of wyoming, amici supporting appellant. , tva has installed scrs on 60% of its coal-fired elec- they emit and, driven demand for such artificial changes could channel a with the more demanding federal epa requirements and state childers, representative; permitted to operate as they do. as tva's facilities operate bama and tennessee law, it is difficult to understand how an f.3d 896, 930 (d.c. cir. 2008) (per curiam). this section is responsibility, 42 u.s.c. § 7604(a)(2), and also allows suit and american forest and paper association; william l. north carolina with a full and fair venue for airing its con- acceptable levels of airborne emissions, known as national american forest and paper cially managed nuisance decrees for which north carolina extensive regulations explaining proper scientific equipment tva i, for example, we held that the savings clause of the chapel hill, north carolina, for national parks conservation has been made clear. where congress has chosen to grant §§ 7661a(d)(1), 7661c(a). sources are prohibited from operat- at 414). this is because "for an uncertain length of time after authorized by law." fricke v. city of guntersville, 36 so. 2d 29state of north carolina v. tva permits that implement them. these standards impose more 2d 486 (w.d.n.c. 2006). we affirmed, holding that tva's lytic reduction (scr). like scrubbers, scrs are building- restatement and other secondary sources.") (citing cases and diffidence." lead indus. ass'n, 647 f.2d at 1146. department of justice, raleigh, north carolina, for this manner take advantage of the attributes of legislative bench trial could evaluate more than a mere fraction of the not to do so, and cannot complain now that it desires a differ- what occurred: the district court took the very calculations exposed to sunlight, nox four plants closest to the north carolina border and the con- for all of the emissions involved in this case. see 40 c.f.r. (quoting hillsborough county v. automated med. labs., inc., e. ayres, ayres law group, washington, d.c.; james appellee. on brief: f. william brownell, makram b. jacob a. stein et al., administrative law § 14.01. as a result, tricity generation capacity. at several plants that do not cur- means of arriving at emissions standards. congress, however, north dakota; state of south pollution controls in their facilities." 4 state of north carolina v. tva omitted). here, of course, the role envisioned for the states pute. the supreme court's decision in ouellette is explicit: a activity expressly permitted and extensively regulated by both first instance rather than through courts. the prospects of (emissions allowance transfer system under acid rain pro- 105(a)(1), 68-201-108(a), 4-5-322. passed on in the form of rate increases to citizens who pur- while north carolina points out that an activity need not 2 state of north carolina v. tva state of north carolina, ex rel. to add substance to the acts of congress, to complete absent specific emissions caps and emissions control technologies while scrubbers under construction and anticipated to be com- club, amici supporting appellee; mitchell s. bernard, nat- weigh the formidable costs in delay and litigation, and simply law, would be preempted if "a scheme of federal regulation coal-fired power plants in north carolina by the north caro- auth., 515 f.3d 344 (4th cir. 2008) (tva i). nuisance fairness coalition; alabama and tennessee. there is no question that the law of ping on a jury, or being a common scold. risk in the future, "otherwise worthy permit applicants will ronald a. cass; james l. fort, as in the case of bad odors, smoke, dust and authorize various private causes of action as the primary supreme court in ouellette held congress never intended. court held a bench trial, north carolina v. tenn. valley auth., entific fields to use their knowledge to create empirically- commonwealth of kentucky, office of the can be reduced, for example, is by installing a emission levels necessary to achieve those same public ends. knowledge useful in indicating the kind and extent of all iden- 16 u.s.c. §§ 831d(l), 831i, & 831n-4(f). as a result of this power companies] duke and progress energy by statute to put alabama and tennessee laws provide for similar administra- i. appellee. troy king, attorney general, corey maze, solici- 120, and those which are expressly permitted. thus, an entity shapiro has explained, the rulemaking process has the bene- pose of congress is the ultimate touchstone in every pre- ability. it was hardly unforeseeable that the aforementioned and judicial roles in addressing the problem of air pollution. ping the emissions that each unit was allowed to release. id. and maintenance of which . . . are requisite to protect the pub- upon resolution of the interlocutory appeal, the district injunction against four of the power plants. all of these plants sions standards different from federal and state regulatory law federal-state framework that congress through the epa has that reflects the extensive application of scientific expertise epa also has the authority, through a procedure known as a --from plant exhaust and cost defendant-appellant, "north carolina is seeking a court order requiring tva to christopher newsom, bradley arant boult cum- about one-tenth as much as scrs. park, jr.; jim cooper, protect even those individuals particularly sensitive to emis- stein, stacey h. myers, anne e. lynch, hunsucker cir. 2009) (per curiam). those claims remain pending, and natural resources law clinic, south royalton, vermont, for force that the district court's decision that north carolina could enforce according states a wholly different role and allowing state clean air in this country. if courts across the nation were to ented in plaintiff's exhibit 95. but necessary details, and to resolve unexpected problems." 3 so too tennessee. an activity that is explicitly licensed and ent resolution. however, if either tennessee or alabama its on tva's four plants are clearly drawn from dr. staudt's ) comparable to those required by [the clean for the western district of north carolina, at asheville. ii. of the tennessee attorney general and nance, and enforcement of [naaqs] . . . within such state." commonwealth of kentucky; and that has set in motion reliance interests and expectations out securing the requisite permits. 42 u.s.c. § 7604(a)(3). if meaning, would be simply unable to determine its obligations wilkinson, circuit judge: tion center, inc., for the chamber of commerce of the on the part of those states and enterprises that have complied smokestacks act] . . . on a comparable schedule." 2002 n.c. "those equivalent emission rates [to develop] what would be malarial pond; with the public safety, as in the case (same); johnson v. bryant, 350 so. 2d 433, 436 (ala. 1977) 7state of north carolina v. tva balkanization of clean air regulations and a confused patch- "would be less than candid if [they] failed to acknowledge ill behooves the judiciary to set aside a congressionally sanc- the primary process for states to address interstate emissions four tva electricity generating plants in alabama and ten- is the hapless source to follow? see ouellette, 479 u.s. at 496 manufacturers; american quality standards "accurately reflect the latest scientific code § 6-5-120). ject the actor to tort liability."). in addition, such unclassified offenses as eavesdrop- oxides (nox eleven plants that were closest to the north carolina line. discharge standards on a single point source, the inevitable 1 states from essentially exporting most of their emissions to court in its opening statement that dr. staudt would provide "include enforceable emission limitations and other control 14 state of north carolina v. tva extensively regulated through the clean air act, 42 u.s.c. refined over many years. smokestacks act final deadline." of the general counsel, tennessee valley author- state of illinois; state of iowa; and dissenting in part). in fact, the district court properly u.s. at 497 (quoting illinois v. city of milwaukee, 731 f.2d culties with this approach are legion. no matter how lofty the further, the court's injunction traced, line by line, the emis- even were we to accept north carolina's claim that the dis- as a result of this statutory directive, the epa has promul- interferences with the public health, as in the case of law center, institute for public representation, wash- mischief in those nuisance actions seeking to establish emis- cerns. but, as already explained, the district court's emissions lim- stacks act, n.c. gen. stat. § 143-215.107d, which requires investor-owned public utilities that operate coal-fired generat- the nox 5state of north carolina v. tva commerce of the united states of america, national associ- north carolina law ultimately provided the remedy the dis- emissions controls, especially in comparison with the judi- problem is only exacerbated if state nuisance law is the mech- carolina v. tenn. valley auth., 593 f. supp. 2d at 815. this divided into primary naaqs, 42 u.s.c. § 7409(b)(1), and vines, bradley arant boult cummings, llp, bir- ferred that emissions standards be set through agencies in the with regard to the very tva plants against which it sought shedd joined. the `full purposes and objectives of congress.'" id. at 493-94 naaqs. mates that the actual cost will be even higher. regardless of for the benefits of agency expertise in setting standards of state of utah; bruce a. salzburg, state of wyoming, gram). as a result, north carolina decided to implement more roy cooper, attorney general, . . . any source . . . within the state from emitting any air pol- by extension, the amounts of pm2.5 construct. however, they can remove approximately 90% of disputes, a method which would chaotically upend an entire analysis of where changes will do the most good. injunction- regime through the sip and permitting process, field and con- appellant. robert e. cooper, jr., attorney general and managed. the act makes the epa responsible for developing tant in violation of the prohibition of section regulatory structure," id. at 497, and singled out nuisance cated that it was requesting the imposition of "emission rates the tennessee valley authority (tva) appeals an injunc- activities are to constitute a nuisance. see city of birmingham (second) of torts § 821b cmt. f. ("although it would be a capped emissions from electric generating unit number eight range of epa actions, including promulgation of air standards 61, 62 (tenn. ct. app. 1933). additionally, tennessee's dep- as part of its compliance with these regulations tva has another, and a judge in another state a third. which standard before us. there is a distinction between an activity that is tanner, representative; parker rad, amar d. sarwal, national chamber litiga- scrubbers and scrs to meet specific emissions caps for each lish such a chaotic regulatory structure." ouellette, 479 u.s. sess. laws 4 § 10. connecticut; state of delaware; vermont, replicate the resources that epa can bring to bear in deciding anism used, because "nuisance standards often are vague and massachusetts; state of and created the strongest cautionary presumption against form into microscopic particles known as "fine particulate tioned scheme of many years' duration--a scheme, moreover, 2 s. jaffe, erik s. jaffe, p.c., washington, d.c.; c. boyden complains are a public nuisance. nuisance in north carolina. as a result, the court imposed related to each of the twenty-two electric generating units at from the flue gasses a coal power plant produces. nox cluded there was insufficient evidence that they contributed goal, we are unwilling to sanction the least predictable and the air." 42 u.s.c. § 7408(a)(2). the clean air act's extensive rule (cair), 70 fed. reg. 25,162 (may 12, 2005), would ogy, engineering, and other relevant fields that agencies rather supp. 2d at 829 (citing ouellette, 479 u.s. at 487), it for all nor did north carolina change its tune once the bench trial also assists in the creation of ozone, and the fact that the district court ultimately decided to award 13state of north carolina v. tva "[a]ny state or political subdivision may petition the admin- against all eleven of tva's coal-fired power plants. tva there is no suggestion that the process will fail to provide of the tva units' emissions under dr. staudt's proposed supreme court, overturn the judgment of congress, supplant ity as to provide almost no standard of application. if we are thoracic society, amici supporting appellee. john t. sut- while it establishes acceptable nationwide emissions v. state of louisiana; wayne stenehjem, attorney general, 32 state of north carolina v. tva polluting source." virginia v. browner, 80 f.3d 869, 873 (4th in this case because tva's tennessee plants are expressly pierre, south dakota, for the state of south dakota; mark l. address acid rain. see 42 u.s.c. § 7651-7651o (clean air act federal entities to comply with state and local regulations "in for immediate relief from unlawful interstate pollution under granted plaintiff its request. it created "a judicially-imposed be constructed or an existing source can be modified. 42 sources of emissions. in light of the fact that congress recog- cir. 1996). under the supremacy clause. the ouellette court itself andrew m. cuomo, attorney general, barbara d. under- it is crucial therefore that courts in this highly technical 19state of north carolina v. tva tennessee, it would be difficult to uphold the injunctions statutory implementation." negusie v. holder, 555 u.s. ___, (d)(i)(i) (internal section breaks omitted). this rule prevents the four plants it enjoined. compare id. at 832-33 with j.a. installation and operation, energy requirements, emission supporting appellee; jamie gibbs pleune, hope m. babcock, the district court's well-meaning attempt to reduce air pol- §§ 50.4 & 50.5 (so2 lously drafted. 1111-12 (plaintiff's ex. 97). for instance, the district court meet naaqs. the clean air act requires each state to 17state of north carolina v. tva state of new mexico; state of code §§ 22-22a-6(a)(4), 22a-7(c)(6); tenn. code §§ 68-201- we have explained at some length the structure of the entirely laudable quest to guarantee pure air to its citizens. to control nox opinion suit could modify them dramatically. rather than take this c.f.r. § 50.13. such standards, however, are not set arbitrar- even lower than those specified in epa regulations promul- pursuant to them, or tva's operation pursuant to the permits. the sips implementing them are understandably designed to iii. council, and sierra club, amici supporting appellee. noted, the section 126 process provides protection for states state permit may set one standard, a judge in a nearby state use of appropriate pollution control technology." north caro- able, or the collection of an inconvenient crowd; and wyoming; gerard v. bradley; ters in diameter) that cause health problems if inhaled. when source states and permit holders in favor of the nebulous rules tion of (a) an emission standard or limitation under this name," 16 u.s.c. § 831c(b). north carolina v. tenn. valley plants located in those two jurisdictions. ouellette, 479 u.s. carefully enacted rules governing airborne emissions, it would critically for this case, each sip must consider the impact the supreme court emphasized that only source state law, permitted to emit under the north carolina clean smoke- washington, d.c.; maureen h. dunn, general counsel, (same); city of birmingham v. scogin, 115 so. 2d 505, 512 gated naaqs for a number of emissions, including standards ney general, state of louisiana, office of the reporter, barry turner, deputy attorney general, office while hardly perfect, provide an opportunity for predictable the desirability of reducing air pollution is widely new york; state of oklahoma; will not apply." id. practical purposes applied north carolina's clean smoke- tecting public health and saving the environment from dirty attorney general, robert rosenthal, assistant attorney gen- developing rules, and lowering the likelihood of disturbing at 832-33. primarily because tva's seven other plants are fact admits that "exhibit 97 was intended to demonstrate at equivalent to north carolina's clean smokestack[s] act." public nuisance. for these reasons, the judgment must be lations, notwithstanding a general savings clause indicating assume, without deciding, that it is. if tva is in compliance § 7408(b)(1). gation do not end with the prospect of multiplicitous decrees at tva's widows creek plant in northeast alabama at 860 stacks act." dr. staudt stated that his "benchmark" was (1987). it emphasized that allowing "a number of different ings clause, which is similar to the one found in the clean air proper standard, north carolina v. tenn. valley auth., 593 f. specific calculations do not represent an extraterritorial appli- trict court actually applied source state law from alabama and 11state of north carolina v. tva able in federal court." her majesty the queen, 874 f.2d at ancient common law of public nuisance is not ordinarily the here that of alabama and tennessee, could impose more lung ass'n v. epa, 134 f.3d 388, 389 (d.c. cir. 1998). this thus, while public nuisance law doubtless encompasses expertise" in air quality matters). eral, state of alabama, office of the including tva, to follow its state rules. north carolina law built into the system to prevent abuses and to address con- similarly, ouellette held that the clean water act's sav- field or an identifiable portion of it, . . . the test of pre- monwealth of kentucky; james d. "buddy" caldwell, attor- amici supporting appellant, tion and the need for clean air. the result would be a based upon looking at the clean smokestacks act and the sel & corporate secretary, american forest & paper and the supremacy clause. the district court denied the tenn. valley auth., 593 f. supp. 2d 812, 825 (w.d.n.c. both alabama and tennessee have promulgated sips, and north carolina believes that any of these violations have have under any statute or common law to seek enforcement to the clean air act. 34 state of north carolina v. tva 43% of tva's coal-fired electricity generation capacity, defense council; sierra club; the contrast between the defined standards of the clean 8 state of north carolina v. tva hibits states from allowing emissions that will interfere with a hogpen, the keeping of diseased animals, or a of tva's coal-fired electricity generation units. plaintiff's nized "that air pollution prevention . . . and air pollution con- court intended a flat-out preemption of each and every con- source state law applies to interstate nuisance suits. and ozone created. one of thought the problem required a very high degree of special- unlikely--to say the least--that congress intended to estab- gated pursuant to the clean air act. n.c. gen. stat. § 143- u.s.c. § 7410(a)(1). pursuant to this goal, each state is were within 100 miles of the north carolina border. the ), & ulatory commission (at the time of the legislation the atomic channels established by the caa." north carolina v. tenn. which is known to cause respiratory ailments. portions of the csa-equivalent 2013 emissions chart that in light of the fact that north carolina informed the district we need not hold flatly that congress has entirely pre- 471 u.s. 707, 713 (1985)). we thus cannot allow non-source vast array of interests seeking to press upon them a variety of it is true, as north carolina argues, that the clean air act's in particular, it is essential that we respect the system that decrees in light of changing technologies or subsequent enact- tion plan (sip) "which provides for implementation, mainte- prehensive clean water act, the statute "carefully defines the [its] goal," id. at 494, admonished against the "tolerat[ion]" of 349 (ala. 1939)) (emphasis added); see also city of birming- in contrast, the epa's regulations regarding naaqs and american thoracic society; § 50, apps. a-r, to ensure that measurements will be consis- department of justice, raleigh, north carolina, for north carolina clean smokestacks act." north carolina in least one way that tva would be capable of meeting north this ruling was flawed for several reasons. if allowed to yet the state now attempts to argue that the district court ) and at thirty-five micrograms per expressly permit a power plant to operate and then have a alabama to intervene on appeal on tva's behalf. address the state's concerns. however, after the d.c. circuit cation of the law. 23state of north carolina v. tva id. at 829-31. mination that the tva plants' emissions constitute a public as the district of columbia circuit has emphasized, courts emption case.'" wyeth v. levine, 555 u.s. ___, 129 s.ct. flict preemption principles caution at a minimum against sized plants that can cost hundreds of millions of dollars to sance. "adding another layer of collateral review for agency which have been considered and specifically authorized by decided: july 26, 2010 restatement (second) of torts). although sncrs are not as effective as scrs, removing control its emissions to levels similar to those required for mandate, tva provides electricity to citizens in parts of seeking public nuisance injunctions against tva, however, is output, and limited pool of specialized construction expertise away from 1187, 1194 (2009) (quoting medtronic, inc. v. lohr, 518 u.s. as printed references section 7410(a)(2)(d)(ii), but section 126(b) prior to general counsel, american petroleum institute, risks results that lack both clarity and legitimacy. palumbo v. at 494-97. yet exactly the opposite has happened. north car- dakota; state of utah; state of no. 09-1623 court's concerns and the practical effects of having multiple hundreds of millions of dollars. 496 (quoting city of milwaukee v. illinois, 451 u.s. 304, 317 mingham, alabama, for intervenor. jack conway, attorney maryland; state of b. "contends that the congress amended § 126 only in order to update the ties generally of supplanting operating permits with mandates state of alabama, , and ozone are among the air pollutants n.17. vibration; with public convenience, as by obstructing lacy h. thornburg, district judge. coverage allows regulators with expertise in the relevant sci- supreme court's decision in international paper co. v. ouel- representative; marsha well-adapted than administrative relief to the task of imple- scrubbers already operating cover healthy environment. see her majesty the queen v. city of stacks act. plaintiff's exhibit 97, revealingly titled "csa- them. sions regulations with a contrasting state perspective about the began. its primary expert witness, dr. james staudt, reiterated 24 state of north carolina v. tva 7410(a)(2)(d)([i]) of this title or this section."1 association, natural resources defense council, and sierra "common-law suits that have the potential to undermine [the] nuisance fairness coalition, utility air regulatory group, conduct sought to be enjoined implicates the technically com- inputs into the rulemaking process would ideally reflect not mate authority over naaqs to determine what levels of dards. the pitfalls of such an approach are all too evident. it region. 48 stat. 58 (may 18, 1933). one of tva's "primary lincoln davis, representative; cal utilities. id. at 210. as a result, the state of california's acknowledged, but the most effective means of doing so suits, although we did not address whether a nuisance action the same manner, and to the same extent as any nongovern- matter" or "pm2.5 practice of medicine by one not qualified; with pub- massachusetts, mississippi, new hampshire, new jersey, v. detroit, 874 f.2d 332, 335 (6th cir. 1989). american lung association; nuisance theory is if it is operating negligently, a claim not e.g., o'neil v. state ex rel. baker, 206 s.w.2d 780, 781 7426(a)(1), are further designed to allow epa and state regu- generic statute countermand those permissions on public nui- would replace them with an unknown and uncertain litigative palumbo, 989 f.2d at 162. a company, no matter how well- zach wamp, representative; bart on emissions," id. at 832, the district court reproduced the owned and operated coal-fired power plants located in ten- 22 state of north carolina v. tva coal-fired power plants emit sulfur dioxide (so2 the same. see 40 c.f.r. § 50. as the name suggests, naaqs flue gas desulfurization system, or "scrubber." scrubbers are § 7604(a)(1). the statute further grants a cause of action lihood of distortions caused by the influence of individualized states and industries at sea and potentially expose them to a environmental concerns, it does so at such a level of general- sought and obtained state permits to operate each of its power north carolina only part of its requested relief cannot obscure permitted by the states in which they are located.2 the uncertain twists and turns of litigation will leave whole are meant to set a uniform level of air quality across the coun- united states; harry m. ng, stacy r. linden, office of the topher grafflin browning, jr., north carolina jamie gibbs pleune, staff attorney, hope m. babcock, as this non-exclusive discussion of remedies demonstrates, nessee. the injunction was based on the district court's deter- washington, d.c., jan poling, vice president, general coun- dering them particularly vulnerable to air pollution." am. and nox 12 state of north carolina v. tva (1:06-cv-00020-lht) located farther from north carolina, the district court con- nuisance standards. the parties also dispute whether alabama and tennessee allow out-of- body of clean air law and could all too easily redound to the explicitly refrained from categorically preempting every nui- and techniques and providing detailed schematic diagrams for are qualified neither by training nor experience to be.") (quot- olina explicitly stated that it wanted out-of-state entities, city of milwaukee, 731 f.2d 403, 414 (7th cir. 1984)). this 10 state of north carolina v. tva agency rulemaking is a "quasi-legislative power, . . . intended the act orders the state to "use all available resources and documents, all caa requirements relevant to the particular and nox but congress in the clean air act opted rather emphatically appropriate emissions standards. but congress evidently that they believe cause problems with their attainment of most pressing legal demands. tennessee br. at 8-9, 12. even often his "opinion [that tva was a public nuisance was] mity with the permits, including limitations on so2 emissions, plants may use selective cata- every single electric generating unit it enjoined. ance with epa naaqs, the corresponding state sips, and the intervenor, must do so consistently with extensive epa regulations gov- present lawsuit in 2006, he issued a press release stating that even in opening statements before the district court, north uty air director, one of the officials responsible for managing tles, jr., southern environmental law center,