v. AUTHORITY 291 Cite as 615 F.3d 291 (4th Cir. 2010)

Rather, the state’s dual role as publisher the walk, as well. The district court did and re-publication punisher necessitates a not err in so concluding here. more searching analysis of its involvement. For this reason, while I agree with the observation in the majority opinion that , certain evolving ‘‘practices indicate a broad consensus that SSNs’ public disclosure should be strictly curtailed,’’ Maj. Op. at 280, where, as here, an individual state has not manifested its genuine embrace of that ‘‘consensus,’’ then judicially-noticed facts State of NORTH CAROLINA, ex rel. do not trump the state’s tangible actions, Roy COOPER, Attorney General, nor can they render the state’s behavior an Plaintiff–Appellee, unimportant or minor aspect of the proper v. analysis. TENNESSEE VALLEY AUTHORITY, Thus, an analysis of a state’s view and Defendant–Appellant, its actual conduct in furthering its asserted v. interest is imperative in striking the prop- er balance, under the First Amendment, State of , Intervenor, between pursuit of ‘‘a state interest of the Commonwealth of Kentucky; State of highest order,’’ on the one hand, and, on ; State of North Dakota; the other hand, the state’s efforts to re- State of South Dakota; State of Utah; strict the exercise of constitutionally-pro- State of Wyoming; Gerard V. Brad- tected expressive activity. This is not to ley; Ronald A. Cass; James L. Huff- say that ‘‘objective’’ data have no role to man; F. Scott Kieff; John J. Park, Jr.; play in the analysis of a federal court’s Jim Cooper, Representative; Phil Roe, assessment of whether an asserted state Representative; Steve Cohen, Repre- interest rises to become one ‘‘of the high- sentative; Marsha Blackburn, Repre- est order.’’ See Maj. Op. at 277. But such sentative; Lincoln Davis, Representa- a consideration should not, and must not, tive; Zach Wamp, Representative; supplant a fact-intensive inquiry into the Bart Gordon, Representative; John state’s view and its actual conduct in fur- Tanner, Representative; Parker Grif- thering its asserted interest.* fith, Representative; Travis Childers, In sum, when a state seeks to punish a Representative; Chamber of Com- speaker for republishing state-published merce of the United States of Amer- information, the state should be expected, ica; National Association of Manufac- in the words of a contemporary colloquial- turers; American Petroleum Institute; ism, not simply to talk the talk, but to walk Public Nuisance Fairness Coalition;

* Butterworth v. Smith, 494 U.S. 624, 110 S.Ct. Federal Rules prohibited the writer’s actions. 1376, 108 L.Ed.2d 572 (1990), is not to the Id. at 634–35, 110 S.Ct. 1376. But of course, contrary. There, the Supreme Court held un- in Butterworth, the state never had control of constitutional a Florida statute that prohibit- the information in question: the writer’s testi- ed a writer’s disclosure of his own grand jury mony. Thus, the Court had scant reason to testimony. Id. at 626, 110 S.Ct. 1376. In so consider the actions of the state in safeguard- holding, the Court considered whether other ing the information because the state never states maintain such a rule and whether the controlled the information in the first place. 292 615 FEDERAL REPORTER, 3d SERIES

Utility Air Regulatory Group; Ameri- (1) of Alabama and Tennessee, rather can Forest and Paper Association; than law of North Carolina, applied to State of Tennessee, Amici Supporting determination of whether the plants’ Appellant, emissions constituted a public nuisance in North Carolina, and Environmental Law Professors; Ameri- (2) plants’ emissions were not a public nui- can Lung Association; American sance under Alabama and Tennessee Thoracic Society; National Parks law. Conservation Association; Natural Resources Defense Council; Sierra Reversed and remanded. Club; State of California; State of Connecticut; State of Delaware; 1. Environmental Law O255 State of Illinois; State of ; State National Ambient Air Quality Stan- of Maine; State of Maryland; State dards (NAAQS) developed by the Environ- of Massachusetts; State of Mississip- mental Protection Agency (EPA) pursuant pi; State of New Hampshire; State to the Clean Air Act (CAA) are meant to Of New Jersey; State of New Mexico; set a uniform level of air quality across the State of New York; State of Okla- country to guarantee both a healthy popu- homa; State of Rhode Island; State lace and a healthy environment. Clean of Vermont, Amici Supporting Appel- Air Act, § 109(b), 42 U.S.C.A. § 7409(b). lee. 2. Environmental Law 258 No. 09–1623. O Once a State Implementation Plan United States Court of Appeals, (SIP) providing for implementation, main- Fourth Circuit. tenance, and enforcement of National Am- bient Air Quality Standards (NAAQS) Argued: May 14, 2010. within the state is approved by the Envi- Decided: July 26, 2010. ronmental Protection Agency (EPA), its Background: State of North Carolina requirements become federal law and are brought action in public nuisance against fully enforceable in federal court under the the Tennessee Valley Authority (TVA), Clean Air Act (CAA). Clean Air Act, seeking an injunction against 11 of the § 304(a), 42 U.S.C.A. § 7604(a). TVA’s coal-fired power plants. After a 3. Environmental Law O265 bench trial, the United States District Each permit issued under a State Im- Court for the Western District of North plementation Plan (SIP) is intended to be Carolina, Lacy H. Thornburg, J., 593 a source-specific bible for Clean Air Act F.Supp.2d 812, issued an injunction requir- (CAA) compliance containing in a single, ing the immediate installation of emissions comprehensive set of documents, all CAA controls at four plants located in Tennes- requirements relevant to the particular see and Alabama and denied TVA’s motion polluting source. Clean Air Act, § 502, 42 to stay the judgment, 2009 WL 2497934. U.S.C.A. § 7661a. TVA appealed, and the state of Alabama was granted leave to intervene on appeal 4. Nuisance O59 on TVA’s behalf. Public nuisance is an all-purpose tort Holdings: The Court of Appeals, Wilkin- that encompasses a truly eclectic range of son, Circuit Judge, held that: activities. NORTH CAROLINA v. TENNESSEE VALLEY AUTHORITY 293 Cite as 615 F.3d 291 (4th Cir. 2010)

5. States O18.11 public nuisance in North Carolina, as ap- Purpose of Congress is the ultimate plying North Carolina law extraterritorial- touchstone in every preemption case. ly would have compromised principles of federalism. 6. States O18.7 A field of state law would be preempt- 11. Nuisance O59 ed if a scheme of federal is so In a nuisance suit against a source pervasive as to make reasonable the infer- regulated under the Clean Air Act (CAA), ence that Congress left no room for the a court must apply the law of the state in states to supplement it. which the point source is located. Clean Air Act, § 101 et seq., 42 U.S.C.A. § 7401 7. Nuisance O41, 59 et seq. States O18.15 12. Nuisance 64 Where Congress has chosen to grant O states an extensive role in the Clean Air Under Alabama and Tennessee law, Act’s (CAA’s) regulatory regime through sulfur dioxide, nitrous oxide, ozone, and the State Implementation Plan (SIP) and fine particulate matter emissions from permitting process, field and conflict pre- Tennessee Valley Authority (TVA) coal- emption principles caution at a minimum fired power plants located in Alabama and against according states a wholly different Tennessee did not constitute a public nui- role and allowing state nuisance law to sance in North Carolina, where the plants contradict joint federal-state rules so me- were in compliance with National Ambient ticulously drafted. Clean Air Act, Air Quality Standards (NAAQS) developed §§ 110(a)(1), 502, 42 U.S.C.A. by the Environmental Protection Agency §§ 7410(a)(1), 7661a. (EPA) pursuant to the Clean Air Act (CAA), the corresponding State Implemen- 8. and Procedure tation Plans (SIPs), and the permits that O390.1 implemented them. Clean Air Act, Statutes O219(1) §§ 109(b), 110(a), 502, 42 U.S.C.A. Courts are expert at statutory con- §§ 7409(b), 7410(a), 7661a; Ala.Code 1975, struction, while agencies are expert at § 6–5–120; 40 C.F.R. §§ 50.4, 50.5, 50.9, statutory implementation. 50.11, 50.13, 50.15.

9. Environmental Law O683 13. Environmental Law O265 It is crucial that courts in the highly States can be expected to take into technical arena of clean air regulation re- account their own nuisance in setting spect the strengths of the agency process- permit requirements under the Clean Air es on which Congress has placed its impri- Act (CAA). Clean Air Act, § 502, 42 matur. U.S.C.A. § 7661a.

10. Nuisance O59 14. Nuisance O7 Law of Alabama and Tennessee, Alabama nuisance law draws a distinc- where Tennessee Valley Authority (TVA) tion between activities which are merely coal-fired power plants were located, rath- not illegal and those which are expressly er than law of North Carolina, applied to permitted; thus, an entity must behave in a determination of whether the plants’ sulfur negligent manner if its expressly permit- dioxide, nitrous oxide, ozone, and fine par- ted activities are to constitute a nuisance. ticulate matter emissions constituted a Ala.Code 1975, § 6–5–120. 294 615 FEDERAL REPORTER, 3d SERIES

15. Nuisance O64 Senior Attorney, Maria V. Gillen, Office An activity that is explicitly licensed of the General Counsel, Tennessee Valley and allowed by Tennessee law cannot be a Authority, Knoxville, Tennessee, for Ap- public nuisance. pellant. Michael D. Goodstein, Stacey H. Myers, Anne E. Lynch, Hunsucker 16. Nuisance O5, 23(1) Goodstein & Nelson P.C., Washington, Under Tennessee law, the only way D.C.; Richard E. Ayres, Ayres Law that a permit-authorized activity can be Group, Washington, D.C.; James C. Gu- enjoined under a nuisance theory is if it is lick, Senior Deputy Attorney General, operating negligently. Marc Bernstein, Special Deputy Attorney General, North Carolina Department of 17. Nuisance O4 Justice, Raleigh, North Carolina, for Ap- Alabama and Tennessee nuisance law pellee. Troy King, Attorney General, only prohibits activities that substantially Corey Maze, Solicitor General, William interfere with the average person—for ex- G. Parker, Jr., Assistant Attorney Gener- ample, a person of ordinary health and al, State of Alabama, Office of the Attor- sensibilities, and ordinary modes of living, ney General, Montgomery, Alabama; or an ordinary reasonable man. Ala.Code Brian M. Vines, Bradley Arant Boult 1975, § 6–5–120. Cummings, LLP, Birmingham, Alabama, 18. Environmental Law O255 for Intervenor. Jack Conway, Attorney National Ambient Air Quality Stan- General, Tad Thomas, Assistant Deputy dards (NAAQS) developed by the Environ- Attorney General, Commonwealth of mental Protection Agency (EPA) pursuant Kentucky, Office of the Attorney Gener- to the Clean Air Act (CAA) must protect al, Frankfort, Kentucky, for the Com- monwealth of Kentucky; James D. ‘‘Bud- not only average healthy individuals, but dy’’ Caldwell, Attorney General, State of also sensitive citizens—children, for exam- Louisiana, Office of the Attorney Gener- ple, or people with asthma, emphysema, or al, Baton Rouge, Louisiana, for the State other conditions rendering them particu- of Louisiana; Wayne Stenehjem, Attor- larly vulnerable to air pollution. Clean Air ney General, State of North Dakota, Of- Act, § 109(b), 42 U.S.C.A. § 7409(b). fice of the Attorney General, Bismarck, North Dakota, for the State of North Dakota; Lawrence E. Long, Attorney General, Roxanne Giedd, Assistant Attor- ARGUED: Harriet A. Cooper, Ten- ney General, State of South Dakota, Of- nessee Valley Authority, Knoxville, Ten- fice of the Attorney General, Pierre, nessee, for Appellant. Kevin Christo- South Dakota, for the State of South pher Newsom, Bradley Arant Boult Dakota; Mark L. Shurtleff, Attorney Cummings, LLP, Birmingham, Alabama, General, State of Utah, Office of the At- for Intervenor. Christopher Grafflin torney General, Salt Lake City, Utah, Browning, Jr., North Carolina Depart- for the State of Utah; Bruce A. Salz- ment of Justice, Raleigh, North Carolina, burg, State of Wyoming, Office of the for Appellee. ON BRIEF: F. William Attorney General, Cheyenne, Wyoming, Brownell, Makram B. Jaber, David J. for the State of Wyoming, Amici Sup- DePippo, Hunton & Williams LLP, porting Appellant. David B. Rivkin, Jr., Washington, D.C.; Maureen H. Dunn, Lee A. Casey, Mark W. DeLaquil, Baker General Counsel, Frank H. Lancaster, & Hostetler LLP, Washington, D.C., for NORTH CAROLINA v. TENNESSEE VALLEY AUTHORITY 295 Cite as 615 F.3d 291 (4th Cir. 2010)

Gerard V. Bradley, Ronald A. Cass, pellee. Jamie Gibbs Pleune, Staff Attor- James L. Huffman, F. Scott Kieff, and ney, Hope M. Babcock, Senior Attor- John J. Park, Jr., Amici Supporting Ap- ney/Director, Georgetown University Law pellant. Erik S. Jaffe, Erik S. Jaffe, Center, Institute for Public Representa- P.C., Washington, D.C.; C. Boyden tion, Washington, D.C., for American Gray, Washington, D.C., for Jim Cooper, Lung Association and American Thoracic Phil Roe, Steve Cohen, Marsha Black- Society, Amici Supporting Appellee. burn, Lincoln Davis, Zach Wamp, Bart John T. Suttles, Jr., Southern Environ- Gordon, John Tanner, Parker Griffith, mental Law Center, Chapel Hill, North and Travis Childers, Amici Supporting Carolina, for National Parks Conserva- Appellant. Charles H. Knauss, Michael tion Association, Natural Resources De- B. Wigmore, Robert V. Zener, Sandra P. fense Council, and Sierra Club, Amici Franco, Bingham McCutchen LLP, Washington, D.C., for Chamber of Com- Supporting Appellee; Mitchell S. Ber- merce of the United States of America, nard, Natural Resources Defense Coun- National Association of Manufacturers, cil, New York, New York, for Natural American Petroleum Institute, Public Resources Defense Council, Amicus Sup- Nuisance Fairness Coalition, Utility Air porting Appellee; Jamie Gibbs Pleune, Regulatory Group, and American Forest Hope M. Babcock, Georgetown Universi- and Paper Association; William L. Weh- ty Law Center, Institute for Public Rep- rum, Hunton & Williams, Washington, resentation, Washington, D.C., for Na- D.C., for the Utility Air Regulatory tional Parks Conservation Association, Group; Quentin Riegel, National Associa- Natural Resources Defense Council, and tion of Manufacturers, Washington, D.C.; Sierra Club, Amici Supporting Appellee. George S. Kopp, Public Nuisance Fair- Andrew M. Cuomo, Attorney General, ness Coalition, Washington, D.C.; Robin Barbara D. Underwood, Solicitor Gener- S. Conrad, Amar D. Sarwal, National al, Katherine Kennedy, Special Deputy Chamber Litigation Center, Inc., for the Attorney General, Robert Rosenthal, As- Chamber of Commerce of the United sistant Attorney General, Monica Wag- States; Harry M. Ng, Stacy R. Linden, ner, Assistant Solicitor General, State of Office of the General Counsel, American New York, Office of the Attorney Gener- Petroleum Institute, Washington, D.C., al, New York, New York; Douglas F. Jan Poling, Vice President, General Gansler, Attorney General, Steven M. Counsel & Corporate Secretary, Ameri- Sullivan, Solicitor General, William F. can Forest & Paper Association, Wash- Brockman, Deputy Solicitor General, ington, D.C., for Amici Supporting Ap- State of Maryland, Office of the Attor- pellant. Robert E. Cooper, Jr., Attorney ney General, Baltimore, Maryland, for General and Reporter, Barry Turner, States of California, Connecticut, Dela- Deputy Attorney General, Office of the Tennessee Attorney General and Report- ware, Illinois, Iowa, Maine, Maryland, er, Nashville, Tennessee, for the State of Massachusetts, Mississippi, New Hamp- Tennessee, Amicus Supporting Appellant shire, New Jersey, New Mexico, New and Intervenor. Patrick Parenteau, Ver- York, Oklahoma, Rhode Island, and Ver- mont Law School, Environmental and mont, Amici Supporting Appellee. Natural Resources Law Clinic, South Royalton, Vermont, for Environmental Before WILKINSON, NIEMEYER and Law Professors, Amicus Supporting Ap- SHEDD, Circuit Judges. 296 615 FEDERAL REPORTER, 3d SERIES

Reversed and remanded by published I. opinion. Judge WILKINSON wrote the The Tennessee Valley Authority (TVA) opinion, in which Judge NIEMEYER and is a federal executive branch agency, es- Judge SHEDD joined. tablished in 1933 and tasked with promot- ing economic development in the Tennes- OPINION see Valley region. 48 Stat. 58 (May 18, 1933). One of TVA’s ‘‘primary objectives’’ WILKINSON, Circuit Judge: is to ‘‘produce, distribute, and sell electric power.’’ 16 U.S.C. §§ 831d(l ), 831i, & The Tennessee Valley Authority (TVA) 831n–4(f). As a result of this mandate, appeals an injunction requiring immediate TVA provides electricity to citizens in installation of emissions controls at four parts of seven states. Much of this power TVA electricity generating plants in Ala- is generated by eleven TVA owned and bama and Tennessee. The injunction was operated coal-fired power plants located in based on the district court’s determination Tennessee, Alabama, and Kentucky. that the TVA plants’ emissions constitute a As a natural byproduct of the power public nuisance in North Carolina. As a generation process, coal-fired power plants result, the court imposed specific emissions emit sulfur dioxide (SO 2) and nitrous ox- caps and emissions control technologies ides (NO x). In the atmosphere, both com- that must be completed by 2013. pounds can transform into microscopic particles known as ‘‘fine particulate mat- This ruling was flawed for several rea- ter’’ or ‘‘PM ’’ (particulate matter less sons. If allowed to stand, the injunction 2.5 than 2.5 micrometers in diameter) that would encourage courts to use vague pub- cause health problems if inhaled. When lic nuisance standards to scuttle the na- exposed to sunlight, NO x also assists in tion’s carefully created system for accom- the creation of ozone, which is known to modating the need for energy production cause respiratory ailments. and the need for clean air. The result SO , NO , PM , and ozone are among would be a balkanization of clean air regu- 2 x 2.5 the air pollutants extensively regulated lations and a confused patchwork of stan- through the Clean Air Act, 42 U.S.C. dards, to the detriment of industry and the § 7401 et seq. Pursuant to the Act, the environment alike. Moreover, the injunc- Environmental Protection Agency (EPA) tion improperly applied home state law has issued numerous , and extraterritorially, in direct contradiction to states have enacted further rules imple- the Supreme Court’s decision in Interna- menting the Act and the EPA require- tional Paper Co. v. Ouellette, 479 U.S. 481, ments. Together, these laws and regula- 107 S.Ct. 805, 93 L.Ed.2d 883 (1987). Fi- tions form a system that seeks to keep air nally, even if it could be assumed that the pollutants at or below safe levels. North Carolina district court did apply In order to comply with requirements Alabama and Tennessee law, it is difficult under the Clean Air Act, a number of to understand how an activity expressly controls can be fitted to coal-fired power permitted and extensively regulated by plants to reduce the amounts of SO 2 and both federal and state government could NO x they emit and, by extension, the somehow constitute a public nuisance. amounts of PM 2.5 and ozone created. One For these reasons, the judgment must be of the ways SO can be reduced, for exam- reversed. ple, is by installing a flue gas desulfuriza- NORTH CAROLINA v. TENNESSEE VALLEY AUTHORITY 297 Cite as 615 F.3d 291 (4th Cir. 2010)

tion system, or ‘‘scrubber.’’ Scrubbers are Act Title IV, Acid Deposition Control); 42 large chemical plants—often larger than U.S.C. § 7651b(b) (emissions allowance the power plants themselves—that remove transfer system under acid rain program).

SO 2—from plant exhaust and cost hun- As a result, North Carolina decided to dreds of millions of dollars. implement more stringent controls on in- state coal-fired plants as a matter of state To control NO x emissions, plants may use selective catalytic reduction (SCR). law, as it is allowed to do under the Clean Like scrubbers, SCRs are building-sized Air Act. See 42 U.S.C. § 7416. It passed plants that can cost hundreds of millions of the North Carolina Clean Smokestacks dollars to construct. However, they can Act, N.C. Gen.Stat. § 143–215.107D, which requires investor-owned public utilities remove approximately 90% of the NO x from the flue gasses a coal power plant that operate coal-fired generating units to

produces. NO x emissions can also be reduce their emissions of NO x and SO 2 to reduced in alternative ways, such as retro- levels even lower than those specified in fitting plants with burners that result in EPA regulations promulgated pursuant to

lower NO x emissions, burning types of the Clean Air Act. N.C. Gen.Stat. § 143–

coal that have low NO x output, and install- 215.107D(b)–(e). ing selective non-catalytic reduction Not all emissions are generated by in- (SNGR) controls. Although SNCRs are state sources, however. Prevailing high not as effective as SCRs, removing some pressure weather systems in the states 20 to 40% of NO , they have the benefit of x where TVA operates tend to cause emis- costing about one-tenth as much as SCRs. sions to move eastward into North Car- TVA has already installed numerous pol- olina and other states. North Carolina v. lution controls at its coal-fired plants. Tenn. Valley Auth., 593 F.Supp.2d 812, SO 2 scrubbers already operating cover 825 (W.D.N.C.2009). Although there are 43% of TVA’s coal-fired electricity genera- lengthy Clean Air Act provisions and regu- tion capacity, while scrubbers under con- lations controlling such interstate emis- struction and anticipated to be completed sions, North Carolina chose to bring a this year will bring that number above public nuisance suit against TVA in the 50%. Nationwide, only one-third to one- Western District of North Carolina, seek- half of the country’s coal plants are ing an injunction against all eleven of equipped with scrubbers. Similarly, while TVA’s coal-fired power plants. TVA one-third to one-half of the country’s coal moved to dismiss based on the discretion- plants have SCRs to control NO x, TVA ary function doctrine and the Supremacy has installed SCRs on 60% of its coal-fired Clause. The district court denied the mo- electricity generation capacity. At several tions. North Carolina v. Tenn. Valley plants that do not currently have SCRs, Auth., 439 F.Supp.2d 486 (W.D.N.C.2006). TVA is installing SNCRs and is also burn- We affirmed, holding that TVA’s immunity ing low NO x coal. was waived because the Clean Air Act Unlike TVA, power plants in North Car- required federal entities to comply with olina historically had not put sufficient con- state and local regulations ‘‘in the same trols on their emissions, choosing instead manner, and to the same extent as any to purchase emissions allowances under an nongovernmental entity,’’ 42 U.S.C. EPA cap and trade program implemented § 7418(a), and because Congress provided by Congress in 1990 to address acid rain. that TVA may ‘‘sue and be sued in its See 42 U.S.C. §§ 7651–7651o (Clean Air corporate name,’’ 16 U.S.C. § 831c(b). 298 615 FEDERAL REPORTER, 3d SERIES

North Carolina v. Tenn. Valley Auth., 515 the problem represents decades of thought F.3d 344 (4th Cir.2008) (TVA I). by legislative bodies and agencies and the Upon resolution of the interlocutory ap- vast array of interests seeking to press peal, the district court held a bench trial, upon them a variety of air pollution poli- North Carolina v. Tenn. Valley Auth., 593 cies. To say this regulatory and permit- F.Supp.2d at 818, at the end of which it ting regime is comprehensive would be an issued an injunction against four of the understatement. To say it embodies care- power plants. All of these plants were fully wrought compromises states the obvi- within 100 miles of the North Carolina ous. But the framework is the work of border. The injunction required TVA to many, many people, and it is in place. install and continuously operate scrubbers The district court’s well-meaning at- and SCRs at each of the plants by Decem- tempt to reduce air pollution cannot alter ber 31, 2013. Id. at 832. In addition to the fact that its decision threatens to scut- these requirements, the district court also tle the extensive system of anti-pollution established a schedule of SO and NO emis- mandates that promote clean air in this sions limits for each electric generation country. If courts across the nation were unit at the four plants, capping the emis- to use the vagaries of public nuisance doc- sions that each unit was allowed to release. trine to overturn the carefully enacted Id. at 832–33. Primarily because TVA’s rules governing airborne emissions, it seven other plants are located farther from would be increasingly difficult for anyone North Carolina, the district court conclud- to determine what standards govern. En- ed there was insufficient evidence that ergy policy cannot be set, and the environ- they contributed significantly to pollution ment cannot prosper, in this way. in North Carolina. Id. at 831–32. As a result, it did not rule that they were a A. public nuisance. North Carolina attempts to frame this The cost of compliance with the district case in terms of protecting public health court’s injunction against the four TVA and saving the environment from dirty air. plants is uncertain, but even North Car- But the problem is not a neglected one. olina admits it will be over a billion dollars, In fact, emissions have been extensively while TVA estimates that the actual cost regulated nationwide by the Clean Air Act will be even higher. Regardless of the for four decades. The real question in this actual amount, there is no question that case is whether individual states will be costs will be passed on in the form of rate allowed to supplant the cooperative feder- increases to citizens who purchase power al-state framework that Congress through from TVA. TVA appealed the injunctions the EPA has refined over many years. against its four plants, and we granted leave to the state of Alabama to intervene [1] It is worth describing this system on appeal on TVA’s behalf. in some detail. The federal Clean Air Act, 42 U.S.C. § 7401 et seq., is the primary II. mechanism under which emissions in the The desirability of reducing air pollution United States are managed. The Act is widely acknowledged, but the most ef- makes the EPA responsible for developing fective means of doing so remains, not acceptable levels of airborne emissions, surprisingly, a matter of dispute. The sys- known as National Ambient Air Quality tem of statutes and regulations addressing Standards (NAAQS), ‘‘the attainment and NORTH CAROLINA v. TENNESSEE VALLEY AUTHORITY 299 Cite as 615 F.3d 291 (4th Cir. 2010)

maintenance of which TTT are requisite to EPA does not directly regulate actual protect the public health.’’ 42 U.S.C. sources of emissions. In light of the fact § 7409(b)(1). NAAQS are further subdi- that Congress recognized ‘‘that air pollu- vided into Primary NAAQS, 42 U.S.C. tion prevention TTT and air pollution con- § 7409(b)(1), and Secondary NAAQS, 42 trol at its source is the primary responsi- U.S.C. § 7409(b)(2). Primary NAAQS are bility of States and local governments,’’ 42 intended to protect individuals, while Sec- U.S.C. § 7401(a)(3), decisions regarding ondary NAAQS are set to protect the sur- how to meet NAAQS are left to individual rounding environment. In practice, the states. 42 U.S.C. § 7410(a)(1). Pursuant two standards are often, though not neces- to this goal, each state is required to cre- sarily, the same. See 40 C.F.R. § 50. As ate and submit to the EPA a State Imple- the name suggests, NAAQS are meant to mentation Plan (SIP) ‘‘which provides for set a uniform level of air quality across the implementation, maintenance, and enforce- country in order to guarantee both a ment of [NAAQS] TTT within such State.’’ healthy populace and a healthy environ- Id. While states are responsible for pro- ment. See Her Majesty the Queen v. City mulgating SIPs, they must do so consis- of Detroit, 874 F.2d 332, 335 (6th Cir.1989). tently with extensive EPA regulations gov- As a result of this statutory directive, erning preparation, adoption by the state, the EPA has promulgated NAAQS for a and submission to the EPA, 40 C.F.R. number of emissions, including standards § 51, and all SIPs must be submitted to for all of the emissions involved in this the EPA for approval before they become case. See 40 C.F.R. §§ 50.4 & 50.5 (SO ), 2 final. 42 U.S.C. § 7410(a)(1), (k)(2) & (3). 50.9 & 50.15 (ozone), 50.11 (NO ), & x Once a SIP is approved, however, ‘‘its 50.13(PM ). For instance, the NAAQS 2.5 requirements become federal law and are level for PM across the country is set at an fully enforceable in federal court.’’ Her annual average of fifteen micrograms per Majesty the Queen, 874 F.2d at 335 (citing cubic meter (15 g/m 3) and at thirty-five 42 U.S.C. § 7604(a)). micrograms per cubic meter (35 g/m 3) for a twenty-four hour period. 40 C.F.R. [3] States are accorded flexibility in § 50.13. Such standards, however, are not set arbitrarily by the EPA. Rather, ‘‘a determining how their SIPs are struc- reasonable time for interested persons to tured, but regardless of their choices, SIPs submit written comments’’ must be provid- must ‘‘include enforceable emission limita- ed before NAAQS may be adopted or mod- tions and other control measures, means, ified. 42 U.S.C. § 7409(a)(1)(B), (b)(1) & or techniques’’ to ensure that each state (2). The EPA also has adopted extensive meets NAAQS. 42 U.S.C. § 7410(a)(2)(A). regulations explaining proper scientific States are also tasked with enforcing the equipment and techniques and providing limitations they adopt in their SIPs. They detailed schematic diagrams for measuring must regulate ‘‘the modification and con- emissions levels and air quality, see 40 struction of any stationary source within C.F.R. § 50, apps. A–R, to ensure that the areas covered by the [SIP],’’ 42 U.S.C. measurements will be consistent across the § 7410(a)(2)(C), and must implement a country. permit program that limits the amounts and types of emissions that each permit B. holder is allowed to discharge, 42 U.S.C. [2] While it establishes acceptable na- §§ 7661a(d)(1), 7661c(a). Sources are pro- tionwide emissions levels, however, the hibited from operating without such a per- 300 615 FEDERAL REPORTER, 3d SERIES mit, 42 U.S.C. § 7661a(a), and each permit record before us indicates, TVA currently is intended to be ‘‘a source-specific bible operates each of the four plants at issue in for Clean Air Act compliance’’ containing this case in conformity with the permits,

‘‘in a single, comprehensive set of docu- including limitations on SO 2 and NO x ments, all CAA requirements relevant to emissions. Indeed, this suit does not pres- the particular polluting source.’’ Virginia ent a challenge to Alabama and Tennes- v. Browner, 80 F.3d 869, 873 (4th Cir. see’s SIPs, the permits issued to TVA 1996). pursuant to them, or TVA’s operation pur- suant to the permits. Critically for this case, each SIP must consider the impact of emissions within the In addition to this framework, there are state on the ability of other states to meet a number of checks built into the system NAAQS. The Clean Air Act requires each to prevent abuses and to address concerns state to ensure that its SIP ‘‘contain[s] about emissions. As already noted, the adequate provisions prohibiting TTT any EPA retains ultimate authority over source TTT within the State from emitting NAAQS to determine what levels of emis- any air pollutant in amounts which will sions are acceptable and has the responsi- contribute significantly to nonattainment bility to modify those levels as necessary. in, or interfere with maintenance by, any 42 U.S.C. § 7409(b)(1) & (2). The EPA other State with respect to any such na- also has the authority, through a proce- tional primary or secondary ambient air dure known as a SIP Call, to demand that quality standard.’’ 42 U.S.C. states modify their SIPs if it believes they § 7410(a)(2)(D), (D)(i), & (D)(i)(I) (internal are inadequate to meet NAAQS. 42 section breaks omitted). This rule pre- U.S.C. § 7410(k)(5). Finally, any state vents states from essentially exporting that believes that it is being subjected to most of their emissions to other regions by interstate emissions may file what is strategically positioning sources along an known as a section 126 petition. Named arbitrary border line. after the original section of the Clean Air Act and codified at 42 U.S.C. § 7426(b), In addition, before new construction or the section states that ‘‘[a]ny State or po- modifications of a source of emissions may litical subdivision may petition the Admin- begin, a SIP must provide for ‘‘written istrator [of the EPA] for a finding that any notice to all nearby States the air pollution major source or group of stationary levels of which may be affected by such sources emits or would emit any air pollu- source at least sixty days prior to the date tant in violation of the prohibition of sec- on which commencement of construction is tion 7410(a)(2)(D)( [i] ) of this title or this to be permitted.’’ 42 U.S.C. § 7426(a)(1). section.’’ 1 42 U.S.C. § 7426(b). As noted Both Alabama and Tennessee have pro- earlier, section 7410(a)(2)(D)(i)(I) prohibits mulgated SIPs, and as part of its compli- states from allowing emissions that will ance with these regulations TVA has interfere with other states’ attainment or sought and obtained state permits to oper- maintenance of NAAQS air emission lev- ate each of its power plants. As far as the els. Thus, section 126 provides an impor-

1. Section 126’s cross reference contains an 7410(a)(2)(D)(i). The EPA ‘‘contends that the apparent scrivener’s error as a result of re- Congress amended § 126 only in order to numbering during extensive amendments in update the cross-references’’ and that this 1990. The section as printed references sec- ‘‘substitution of ‘(ii)’ for ‘(i)’ was inadvertent.’’ tion 7410(a)(2)(D)(ii), but section 126(b) prior Appalachian Power Co. v. EPA, 249 F.3d 1032, to amendment referenced what is now section 1040 (D.C.Cir.2001) (citation omitted). NORTH CAROLINA v. TENNESSEE VALLEY AUTHORITY 301 Cite as 615 F.3d 291 (4th Cir. 2010) tant method for downwind states like A. North Carolina to address any concerns The Supreme Court addressed this pre- they have regarding the adequacy of an cise problem of multiplicity in Internation- upwind state’s regulation of airborne emis- al Paper Co. v. Ouellette, 479 U.S. 481, 107 sions. S.Ct. 805, 93 L.Ed.2d 883 (1987). It em- phasized that allowing ‘‘a number of differ- III. ent states to have independent and plenary regulatory authority over a single dis- We have explained at some length the charge would lead to chaotic confrontation structure of the Clean Air Act in order to between sovereign states.’’ Id. at 496–97, emphasize the comprehensiveness of its 107 S.Ct. 805 (quoting Illinois v. City of coverage. The fact that the process has Milwaukee, 731 F.2d 403, 414 (7th Cir. been regulated in such detail has contrib- 1984)). This problem is only exacerbated uted to its inclusiveness and predictability. if state nuisance law is the mechanism It was hardly unforeseeable that the afore- used, because ‘‘nuisance standards often mentioned process and the plans and per- are vague and indeterminate.’’ Id. at 496, mits related to it would not meet with 107 S.Ct. 805 (citation omitted). universal approbation. Litigation that [4] Indeed, the district court properly amounts to ‘‘nothing more than a collateral recognized that ‘‘[t]he ancient attack’’ on the system, however, risks re- of public nuisance is not ordinarily the sults that lack both clarity and legitimacy. means by which such major conflicts Palumbo v. Waste Techs. Indus., 989 F.2d among governmental entities are resolved 156, 159 (4th Cir.1993). in modern American governance.’’ North Dissatisfied with the air quality stan- Carolina v. Tenn. Valley Auth., 593 dards authorized by Congress, established F.Supp.2d at 815. This is at least in part by the EPA, and implemented through because public nuisance is an all-purpose Alabama and Tennessee permits, North tort that encompasses a truly eclectic Carolina has requested the federal courts range of activities. It includes such broad- to impose a different set of standards. ranging offenses as: The pitfalls of such an approach are all too interferences with the public health, as evident. It ill behooves the judiciary to in the case of a hogpen, the keeping of set aside a congressionally sanctioned diseased animals, or a malarial pond; scheme of many years’ duration—a with the public safety, as in the case of scheme, moreover, that reflects the exten- the storage of explosives, the shooting of sive application of scientific expertise and fireworks in the streets, harboring a vi- that has set in motion reliance interests cious dog, or the practice of medicine by and expectations on the part of those one not qualified; with public morals, as states and enterprises that have complied in the case of houses of prostitution, with its requirements. To replace duly illegal liquor establishments, gambling promulgated ambient air quality standards houses, indecent exhibitions, bullfights, with standards whose content must await unlicensed prize fights, or public profan- the uncertain twists and turns of litigation ity; with the public peace, as by loud will leave whole states and industries at and disturbing noises, or an opera per- sea and potentially expose them to a wel- formance which threatens to cause a ter of conflicting court orders across the riot; with the public comfort, as in the country. case of bad odors, smoke, dust and vi- 302 615 FEDERAL REPORTER, 3d SERIES

bration; with public convenience, as by ent states to determine whether a single obstructing a highway or a navigable source constitutes a nuisance. ‘‘Adding stream, or creating a condition which another layer of collateral review for agen- makes travel unsafe or highly disagreea- cy decisions threatens to put at naught the ble, or the collection of an inconvenient TTT process established by Congress.’’ crowd; and in addition, such unclassified Palumbo, 989 F.2d at 161. An EPA-sanc- offenses as eavesdropping on a jury, or tioned state permit may set one standard, being a common scold. a judge in a nearby state another, and a W. Page Keeton et al., Prosser and Keeton judge in another state a third. Which on the Law of Torts 643–45 (5th ed.1984) standard is the hapless source to follow? (citing numerous examples). See also Re- See Ouellette, 479 U.S. at 496 n. 17, 107 statement (Second) of Torts § 821B cmts. S.Ct. 805. b & c; Commonwealth Edison Co. v. Unit- Indeed, a patchwork of nuisance injunc- ed States, 271 F.3d 1327, 1353 (Fed.Cir. tions could well lead to increased air pollu- 2001) (en banc) (‘‘When discussing the con- tion. Differing standards could create tours and scope of the common law, the perverse incentives for power companies to Supreme Court has instructed that it is increase utilization of plants in regions appropriate for us to look to the pertinent subject to less stringent judicial decrees. Restatement and other secondary Alabama Br. at 62. Similarly, rushed sources.’’) (citing cases and Restatement plant alterations triggered by injunctions (Second) of Torts). are likely inferior to system-wide analysis Thus, while public nuisance law doubt- of where changes will do the most good. less encompasses environmental concerns, Injunction-driven demand for such artifi- it does so at such a level of generality as cial changes could channel a limited pool of to provide almost no standard of applica- specialized construction expertise away tion. If we are to regulate smokestack from the plants most in need of pollution emissions by the same principles we use to controls to those with the most pressing regulate prostitution, obstacles in high- legal demands. Tennessee Br. at 8–9, 12. ways, and bullfights, see Keeton, supra, at Even these scenarios probably fail to ex- 643–45, we will be hard pressed to derive haust the full scope of unpredictable conse- any manageable criteria. As Justice quences and potential confusion. ‘‘It is Blackmun commented, ‘‘one searches in unlikely—to say the least—that Congress vain TTT for anything resembling a princi- intended to establish such a chaotic regula- ple in the common law of nuisance.’’ Lu- tory structure.’’ Ouellette, 479 U.S. at 497, cas v. S.C. Coastal Council, 505 U.S. 1003, 107 S.Ct. 805. 1055, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (Blackmun, J., dissenting). B. The contrast between the defined stan- We need not hold flatly that Congress dards of the Clean Air Act and an ill- has entirely preempted the field of emis- defined omnibus tort of last resort could sions regulation. See Pac. Gas & Elec. Co. not be more stark. We are hardly at v. State Energy Res. Conservation & Dev. liberty to ignore the Supreme Court’s con- Comm., 461 U.S. 190, 203–04, 103 S.Ct. cerns and the practical effects of having 1713, 75 L.Ed.2d 752 (1983). We cannot multiple and conflicting standards to guide anticipate every circumstance that may emissions. These difficulties are height- arise in every future nuisance action. In ened if we allow multiple courts in differ- TVA I, for example, we held that the NORTH CAROLINA v. TENNESSEE VALLEY AUTHORITY 303 Cite as 615 F.3d 291 (4th Cir. 2010)

savings clause of the Clean Air Act may L.Ed.2d 700 (1996)). A field of state law, allow for some common law nuisance suits, here public nuisance law, would be although we did not address whether a preempted if ‘‘a scheme of federal regula- nuisance action brought under these cir- tion TTT [is] so pervasive as to make rea- cumstances is barred by preemption under sonable the inference that Congress left no the Supremacy Clause. The Ouellette room for the States to supplement it.’’ Court itself explicitly refrained from cate- Pac. Gas & Elec. Co., 461 U.S. at 204, 103 gorically preempting every nuisance action S.Ct. 1713 (ellipsis in original, citation brought under source state law. 479 U.S. omitted). Here, of course, the role envi- at 497–99, 107 S.Ct. 805. At the same sioned for the states has been made clear. time, however, the Ouellette Court was Where Congress has chosen to grant emphatic that a state law is preempted ‘‘if states an extensive role in the Clean Air it interferes with the methods by which Act’s regulatory regime through the SIP the federal statute was designed to reach and permitting process, field and conflict [its] goal,’’ id. at 494, 107 S.Ct. 805, admon- preemption principles caution at a mini- ished against the ‘‘tolerat[ion]’’ of ‘‘com- mum against according states a wholly dif- mon-law suits that have the potential to ferent role and allowing state nuisance law undermine [the] regulatory structure,’’ id. to contradict joint federal-state rules so at 497, 107 S.Ct. 805, and singled out nui- meticulously drafted. sance standards in particular as ‘‘vague’’ It is true, as North Carolina argues, that and ‘‘indeterminate,’’ id. at 496, 107 S.Ct. the Clean Air Act’s savings clause states 805 (quoting City of Milwaukee v. Illinois, that ‘‘[n]othing in this section shall restrict 451 U.S. 304, 317, 101 S.Ct. 1784, 68 any right which any person (or class of L.Ed.2d 114 (1981)) (internal quotation persons) may have under any statute or marks omitted). The upshot of all this is common law to seek enforcement of any that we cannot state categorically that the emission standard or limitation or to seek Ouellette Court intended a flat-out pre- any other relief.’’ 42 U.S.C. § 7604(e). emption of each and every conceivable suit We must weigh that admonition, however, under nuisance law. We can state, howev- in light of the Supreme Court’s direction in er, with assurance that Ouellette recog- Pacific Gas & Electric, 461 U.S. at 203–13, nized the considerable potential mischief in 103 S.Ct. 1713. There the Court explained those nuisance actions seeking to establish that when Congress chose to give the Nu- emissions standards different from federal clear Regulatory Commission (at the time and state regulatory law and created the of the legislation the Atomic Energy Com- strongest cautionary presumption against mission) control over issues relating to nu- them. clear safety, it completely occupied the field of nuclear safety regulations, notwith- [5–7] In particular, it is essential that standing a general savings clause indicat- we respect the system that Congress, the ing that states retained their traditional EPA, and the states have collectively es- power to regulate electrical utilities. Id. tablished. This is especially so in light of at 210, 103 S.Ct. 1713. As a result, the the fact that ‘‘ ‘the purpose of Congress is State of California’s claim that ‘‘a State the ultimate touchstone in every preemp- may completely prohibit new construction tion case.’ ’’ Wyeth v. Levine, 555 U.S. until its safety concerns are satisfied by ––––, 129 S.Ct. 1187, 1194, 173 L.Ed.2d 51 the Federal Government’’ was rejected. (2009) (quoting Medtronic, Inc. v. Lohr, Id. at 212, 103 S.Ct. 1713. The Court 518 U.S. 470, 485, 116 S.Ct. 2240, 135 explained that ‘‘[w]hen the Federal Gov- 304 615 FEDERAL REPORTER, 3d SERIES

ernment completely occupies a given field vague and uncertain nuisance standards. or an identifiable portion of it, TTT the test In addition to envisioning a role for the of preemption is whether ‘the matter on states that the Clean Air Act did not con- which the State asserts the right to act is template, North Carolina’s approach would in any way regulated by the Federal reorder the respective functions of courts Act.’ ’’ Id. at 212–13, 103 S.Ct. 1713 (quot- and agencies. ing Rice v. Santa Fe Elevator Corp., 331 One can, of course, debate the respective U.S. 218, 236, 67 S.Ct. 1146, 91 L.Ed. 1447 merits of agency and judicial roles in ad- (1947)). While the Court recognized that dressing the problem of air pollution. But California retained the right to regulate Congress in the Clean Air Act opted rath- for traditional utilities purposes, the case er emphatically for the benefits of agency at bar mirrors Pacific Gas & Electric inso- expertise in setting standards of emissions far as it involves an attempt to replace controls, especially in comparison with the comprehensive federal emissions regula- judicially managed nuisance decrees for tions with a contrasting state perspective which North Carolina argues. Indeed, the about the emission levels necessary to Act directs the EPA to ensure that its air achieve those same public ends. quality standards ‘‘accurately reflect the Similarly, Ouellette held that the Clean latest scientific knowledge useful in indi- Water Act’s savings clause, which is simi- cating the kind and extent of all identifi- lar to the one found in the Clean Air Act, able effects on public health or welfare compare 33 U.S.C. § 1365(e) with 42 which may be expected from the presence U.S.C. § 7604(e), did not preserve a broad of such pollutant in the ambient air.’’ 42 right for states to ‘‘undermine this careful- U.S.C. § 7408(a)(2). The Clean Air Act’s ly drawn statute through a general savings extensive coverage allows regulators with clause.’’ Ouellette, 479 U.S. at 494, 107 expertise in the relevant scientific fields to S.Ct. 805. The Court indicated that the use their knowledge to create empirically- clause was ambiguous as to which state based emissions standards. The Act even actions were preserved and noted that ‘‘if requires the EPA to develop expertise so affected States were allowed to impose that it can provide states with information separate discharge standards on a single about available emissions controls, includ- point source, the inevitable result would be ing ‘‘cost of installation and operation, en- a serious interference with the achieve- ergy requirements, emission reduction ment of the ‘full purposes and objectives of benefits, and environmental impact of the Congress.’ ’’ Id. at 493–94, 107 S.Ct. 805 emission control technology’’ as well as (quoting Hillsborough County v. Automat- ‘‘data on alternative fuels, processes, and ed Med. Labs., Inc., 471 U.S. 707, 713, 105 operating methods which will result in S.Ct. 2371, 85 L.Ed.2d 714 (1985)). We elimination or significant reduction of thus cannot allow non-source states to as- emissions.’’ 42 U.S.C. § 7408(b)(1). cribe to a generic savings clause a meaning One can argue whether expert witnesses that the Supreme Court in Ouellette held in bench trials can replicate the resources Congress never intended. that EPA can bring to bear in deciding appropriate emissions standards. But C. Congress evidently thought not. It was The difficulties with North Carolina’s certainly open to the legislative branch to approach in this litigation do not end with authorize various private causes of action the prospect of multiplicitous decrees or as the primary means of arriving at emis- NORTH CAROLINA v. TENNESSEE VALLEY AUTHORITY 305 Cite as 615 F.3d 291 (4th Cir. 2010)

sions standards. Congress, however, Shapiro, The Choice of Rulemaking or thought the problem required a very high Adjudication in the Development of Ad- degree of specialized knowledge in chemis- ministrative Policy, 78 Harv. L.Rev. 921, try, medicine, meteorology, biology, engi- 930–37 (1965). Rulemaking can in this neering, and other relevant fields that manner take advantage of the attributes agencies rather than courts were likely to of legislative hearings, albeit in a more possess. ‘‘Congress has entrusted the focused and circumscribed manner. Sha- Agency with the responsibility for making piro also observed that the general nature these scientific and other judgments, and of rulemaking enables uniform application we must respect both Congress’ decision across industries, lessens the likelihood of and the Agency’s ability to rely on the distortions caused by the influence of indi- expertise that it develops.’’ Lead Indus. vidualized facts in cases, and also makes Ass’n, Inc. v. EPA, 647 F.2d 1130, 1146 the resulting rules readily accessible in a (D.C.Cir.1980). See also id. (‘‘We must single location. Id. at 935–41. look at the decision not as the chemist, biologist, or statistician that we are quali- [8] Injunctive decrees, of course, are fied neither by training nor experience to rulemakings of a sort. While expressing be.’’) (quoting Ethyl Corp. v. EPA, 541 the utmost respect for the obvious efforts F.2d 1, 36 (D.C.Cir.1976)); Chevron, the district court expended in this case, we U.S.A., Inc. v. Natural Res. Def. Council, doubt seriously that Congress thought that Inc., 467 U.S. 837, 865–66, 104 S.Ct. 2778, a judge holding a twelve-day bench trial 81 L.Ed.2d 694 (1984) (acknowledging the could evaluate more than a mere fraction EPA’s ‘‘great expertise’’ in air quality mat- of the information that regulatory bodies ters). can consider. ‘‘Courts are expert at statu- The required notice and comment peri- tory construction, while agencies are ex- ods detailed above, see, e.g., 42 U.S.C. pert at statutory implementation.’’ Negu- §§ 7409(a)(1)(B), (b)(1) & (2), 7426(a)(1), sie v. Holder, 555 U.S. ––––, 129 S.Ct. are further designed to allow EPA and 1159, 1171, 173 L.Ed.2d 20 (2009) (Stevens, state regulators to receive broad inputs J., concurring in part and dissenting in into the regulatory scheme. Agency rule- part). In fact, the district court properly making is a ‘‘quasi-legislative power, TTT acknowledged that ‘‘public nuisance princi- intended to add substance to the Acts of ples TTT are less well-adapted than admin- Congress, to complete absent but neces- istrative relief to the task of implementing sary details, and to resolve unexpected the sweeping reforms that North Carolina problems.’’ 3 Jacob A. Stein et al., Ad- desires.’’ North Carolina v. Tenn. Valley ministrative Law § 14.01. As a result, in- Auth., 593 F.Supp.2d at 817. As the Dis- puts into the rulemaking process would trict of Columbia Circuit has emphasized, ideally reflect not only scientific knowl- courts ‘‘would be less than candid if [they] edge, but also the varied practical per- failed to acknowledge that [they] approach spectives of industry and environmental the task of examining some of the complex groups. As David Shapiro has explained, scientific issues presented in cases of this the rulemaking process has the benefits of sort with some diffidence.’’ Lead Indus. providing proactive instead of reactive Ass’n, 647 F.2d at 1146. control, creating opportunities for notice and comment, allowing flexibility in devel- [9] It is crucial therefore that courts in oping rules, and lowering the likelihood of this highly technical arena respect the disturbing reliance interests. David L. strengths of the agency processes on 306 615 FEDERAL REPORTER, 3d SERIES which Congress has placed its imprimatur. latory body, guided by and subject to con- Regulations and permits, while hardly per- gressional oversight, to implement, main- fect, provide an opportunity for predictable tain, and modify emissions standards and standards that are scientifically grounded to do so with the aid of the rulemaking and thus give rise to broad reliance inter- process and a cooperative partnership with ests. TVA, for example, spent billions of states. In the words of Ouellette address- dollars on power generation units that sup- ing the similarly comprehensive Clean Wa- ply electricity to seven different states in ter Act, the statute ‘‘carefully defines the the belief that its permits allowed it to do role of both the source and affected States, so. There is no way to predict the effect and specifically provides for a process on TVA or utilities generally of supplant- whereby their interests will be considered ing operating permits with mandates de- and balanced by the source State and the rived from public nuisance law, but one EPA.’’ 479 U.S. at 497, 107 S.Ct. 805. It is suspects the costs and dislocations would not open to this court to ignore the words be heavy indeed. Without a single system of the Supreme Court, overturn the judg- of permitting, ‘‘[i]t would be virtually im- ment of Congress, supplant the conclusions possible to predict the standard’’ for lawful of agencies, and upset the reliance inter- emissions, and ‘‘[a]ny permit issued TTT ests of source states and permit holders in would be rendered meaningless.’’ Ouel- favor of the nebulous rules of public nui- lette, 479 U.S. at 497, 107 S.Ct. 805 (quot- sance. ing Illinois v. City of Milwaukee, 731 F.2d at 414). This is because ‘‘for an uncertain length of time after the agency issues the IV. permit, the permit-holder would face the [10, 11] In addition to the problems very real threat that the inquiry into the noted above, the district court’s decision validity of its permit might be reopened in compromised principles of federalism by an altogether different forum.’’ Palumbo, applying North Carolina law extraterritori- 989 F.2d at 162. A company, no matter ally to TVA plants located in Alabama and how well-meaning, would be simply unable Tennessee. There is no question that the to determine its obligations ex ante under law of the states where emissions sources such a system, for any judge in any nui- are located, in this case Alabama and Ten- sance suit could modify them dramatically. nessee, applies in an interstate nuisance Rather than take this risk in the future, dispute. The Supreme Court’s decision in ‘‘otherwise worthy permit applicants will Ouellette is explicit: a ‘‘court must apply weigh the formidable costs in delay and the law of the State in which the point litigation, and simply will not apply.’’ Id. source is located.’’ 479 U.S. at 487, 107 There are, therefore, a host of reasons S.Ct. 805. While Ouellette involved a nui- why Congress preferred that emissions sance suit against a source regulated un- standards be set through agencies in the der the Clean Water Act, all parties agree first instance rather than through courts. its holding is equally applicable to the The prospects of forum shopping and races Clean Air Act. to the courthouse, the chances of reversals on appeal, the need to revisit and modify Unfortunately, while the district court equitable decrees in light of changing tech- acknowledged the proper standard, North nologies or subsequent enactments, would Carolina v. Tenn. Valley Auth., 593 most assuredly keep matters unsettled. F.Supp.2d at 829 (citing Ouellette, 479 U.S. Congress opted instead for an expert regu- at 487, 107 S.Ct. 805), it for all practical NORTH CAROLINA v. TENNESSEE VALLEY AUTHORITY 307 Cite as 615 F.3d 291 (4th Cir. 2010)

purposes applied North Carolina’s Clean Nor did North Carolina change its tune Smokestacks Act extraterritorially in Ala- once the bench trial began. Its primary bama and Tennessee. The decision below expert witness, Dr. James Staudt, reiterat- does little more than mention the black ed often his ‘‘opinion [that TVA was a letter nuisance law of Alabama and Ten- public nuisance was] based upon looking at nessee on its way to crafting a remedy the Clean Smokestacks Act and the emis- derived entirely from the North Carolina sion rates that would be required for the Act. See id. at 829–31. Clean Smokestacks Act.’’ Dr. Staudt stated Certainly North Carolina intended for that his ‘‘benchmark’’ was ‘‘emissions rates its Clean Smokestacks Act to be applied to that were equivalent to what would be TVA. We need look no further than the required in the Clean Smokestacks Act in direct statements of the North Carolina 2013’’ and used ‘‘those equivalent emission law itself. The Act orders the state to rates [to develop] what would be caps for ‘‘use all available resources and means, TVA.’’ Indeed, Dr. Staudt believed his sug- including TTT litigation to induce other gested 2013 deadline for installation of states and entities, including the Tennes- emissions controls was ‘‘an appropriate see Valley Authority, to achieve reductions deadline’’ because ‘‘it is consistent with the Clean Smokestacks Act final deadline.’’ in emissions of oxides of nitrogen (NO x)

and sulfur dioxide (SO 2) comparable to Importantly, in Plaintiff’s Exhibits 95 those required by [the Clean Smokestacks and 97 Dr. Staudt summarized his findings Act] TTT on a comparable schedule.’’ 2002 and recommended installation of scrubbers N.C. Sess. Laws 4 § 10. and SCRs to meet specific emissions caps Further, North Carolina repeatedly af- for each of TVA’s coal-fired electricity gen- firmed its desire to apply the standards eration units. Plaintiff’s Exhibit 95 found in the Clean Smokestacks Act to showed precisely how many tons of SO 2 TVA. When the North Carolina Attorney and NO x TVA’s system of eleven power General filed the present lawsuit in 2006, plants as a whole would be permitted to he issued a press release stating that emit under the North Carolina Clean ‘‘North Carolina is seeking a Court order Smokestacks Act. Plaintiff’s Exhibit 97, re- requiring TVA to control its emissions to vealingly titled ‘‘CSA–Equivalent 2013 levels similar to those required for coal- Emissions,’’ then gave a unit-by-unit fired power plants in North Carolina by breakdown of the emissions each TVA the North Carolina Clean Smokestacks plant would produce if the scrubbers and Act on a similar timetable.’’ And in re- SCRs were installed per Dr. Staudt’s rec- sponding to TVA’s first interrogatory, ommendation. At the end of Plaintiff’s North Carolina indicated that it was re- Exhibit 97, the sum total of the TVA units’ questing the imposition of ‘‘emission rates emissions under Dr. Staudt’s proposed equivalent to North Carolina’s Clean scheme was just below the Clean Smoke- Smokestack[s] Act.’’ Even in opening stacks Act caps presented in Plaintiff’s statements before the district court, North Exhibit 95. Carolina asked the court to require TVA In light of the fact that North Carolina to install controls ‘‘in a similar way the informed the district court in its opening State of North Carolina is requiring [in- statement that Dr. Staudt would provide state power companies] Duke and Prog- this information and again referred to his ress Energy by statute to put pollution proposals during closing argument, it is controls in their facilities.’’ not at all surprising that the district court 308 615 FEDERAL REPORTER, 3d SERIES

utilized Exhibit 97’s CSA–Equivalent 2013 ally because it only imposed caps on the Emissions calculations in fashioning its in- four of TVA’s eleven plants that were clos- junction. The court essentially granted est to the North Carolina line. North plaintiff its request. It created ‘‘a judicial- Carolina claims that because the Clean ly-imposed injunction requiring the instal- Smokestacks Act demands only system- lation and continual, year-round use of ap- wide caps, Dr. Staudt’s plant-specific cal- propriate pollution control technology.’’ culations do not represent an extraterrito- North Carolina v. Tenn. Valley Auth., 593 rial application of the law. F.Supp.2d at 831. As recommended by But, as already explained, the district Dr. Staudt, the injunction demanded in- court’s emissions limits on TVA’s four stallation of scrubbers and SCRs on each plants are clearly drawn from Dr. Staudt’s electric generating unit at the four plants calculations, which he testified that he cre- closest to the North Carolina border and ated to provide a remedy that would be the continuous operation of those pollution ‘‘equivalent to the requirements of the controls once installed. Id. at 832. It also North Carolina Clean Smokestacks Act.’’ adopted Dr. Staudt’s 2013 timeline for final North Carolina in fact admits that ‘‘Exhib- completion of all scrubber and SCR con- it 97 was intended to demonstrate at least struction. Id. at 827, 832. one way that TVA would be capable of Further, the court’s injunction traced, meeting North Carolina’s proposed sys- line by line, the emissions caps that Dr. tem-wide caps for NO x and SO 2 emissions Staudt presented in Plaintiff’s Exhibit 97. with the installation of scrubbers and After ordering that ‘‘TVA shall adhere to SCRs.’’ The fact that there may have been the following caps on emissions,’’ id. at other ways that TVA could reach the emis- 832, the district court reproduced the por- sions levels demanded by the Clean tions of the CSA–Equivalent 2013 Emis- Smokestacks Act and the fact that the sions chart that related to each of the district court ultimately decided to award twenty-two electric generating units at the North Carolina only part of its requested four plants it enjoined. Compare id. at relief cannot obscure what occurred: The 832–33 with J.A. 1111–12 (Plaintiff’s Ex. district court took the very calculations 97). For instance, the district court provided by North Carolina to show how capped emissions from electric generating TVA could comply with an extraterritorial unit number eight at TVA’s Widows Creek application of its law and used them to plant in northeast Alabama at 860 tons of fashion an injunction. NO x and 4,508 tons of SO 2 per year—the The Supreme Court emphasized that precise amounts that Dr. Staudt proposed. only source state law, here that of Ala- Compare North Carolina v. Tenn. Valley bama and Tennessee, could impose more Auth., 593 F.Supp.2d at 833 with J.A. 1112 stringent emission rates than those re- (Plaintiff’s Ex. 97). Indeed, the court im- quired by federal law on plants located in posed the limitations that Dr. Staudt calcu- those two jurisdictions. Ouellette, 479 lated to show how TVA could meet the U.S. at 494–97, 107 S.Ct. 805. Yet exactly demands of North Carolina’s Clean the opposite has happened. North Car- Smokestacks Act on every single electric olina explicitly stated that it wanted out-of- generating unit it enjoined. state entities, including TVA, to follow its Yet the state now attempts to argue that state rules. North Carolina law provided the district court did not, after all, impose the basis for Dr. Staudt’s opinion that TVA the Clean Smokestacks Act extraterritori- was operating unreasonably. North Car- NORTH CAROLINA v. TENNESSEE VALLEY AUTHORITY 309 Cite as 615 F.3d 291 (4th Cir. 2010)

olina law provided Dr. Staudt with the public nuisance activities which have been benchmark for his recommendations re- considered and specifically authorized by garding the steps TVA should take to the government.’’ New England Legal bring its plants into compliance with the Found. v. Costle, 666 F.2d 30, 33 (2d Cir. North Carolina Clean Smokestacks Act. 1981). This is especially true ‘‘where the And North Carolina law ultimately provid- conduct sought to be enjoined implicates ed the remedy the district court adopted the technically complex area of environ- against the four TVA plants at issue here. mental law.’’ Id.; see also Restatement Its decision was tied so tightly to the (Second) of Torts § 821B cmt. f. (‘‘Al- North Carolina Clean Smokestacks Act though it would be a nuisance at common that it violates Ouellette’s directive that law, conduct that is fully authorized by source state law applies to interstate nui- statute, ordinance or administrative regu- sance suits. lation does not subject the actor to tort liability.’’). V. [14] Alabama law certainly recognizes [12, 13] Even were we to accept North this principle. The Alabama Supreme Carolina’s claim that the district court ac- Court has repeatedly explained that ‘‘there tually applied source state law from Ala- can be no abatable nuisance for doing in a bama and Tennessee, it would be difficult proper manner what is authorized by law.’’ to uphold the injunctions because TVA’s Fricke v. City of Guntersville, 251 Ala. 63, electricity-generating operations are ex- 36 So.2d 321, 322 (1948) (quoting Branyon pressly permitted by the states in which v. Kirk, 238 Ala. 321, 191 So. 345, 349 2 they are located. It would be odd, to say (1939)) (emphasis added); see also City of the least, for specific state laws and regu- Birmingham v. City of Fairfield, 375 lations to expressly permit a power plant So.2d 438, 441 (Ala.1979) (same); Johnson to operate and then have a generic statute v. Bryant, 350 So.2d 433, 436 (Ala.1977) countermand those permissions on public (same); City of Birmingham v. Scogin, nuisance grounds. As the Supreme Court 269 Ala. 679, 115 So.2d 505, 512 (1959) has made clear, ‘‘[s]tates can be expected (same). The law draws a distinction be- to take into account their own nuisance tween activities which are merely not ille- laws in setting permit requirements.’’ gal, see Ala.Code § 6–5–120, and those Ouellette, 479 U.S. at 499, 107 S.Ct. 805. which are expressly permitted. Thus, an While North Carolina points out that an entity must behave in a negligent manner activity need not be illegal in order to be a if its expressly permitted activities are to nuisance, that is not the situation before constitute a nuisance. See City of Bir- us. There is a distinction between an ac- mingham v. City of Fairfield, 375 So.2d at tivity that is merely not illegal versus one 441–43; St. Louis–San Francisco Ry. Co. that is explicitly granted a permit to oper- v. Wade, 607 F.2d 126, 131 n. 6 (5th Cir. ate in a particular fashion. ‘‘Courts tradi- 1979) (Under Alabama law, ‘‘[n]egligence is tionally have been reluctant to enjoin as a an element of a claim for nuisance TTT if

2. The parties also dispute whether Alabama could enforce source state public nuisance and Tennessee allow out-of-state sovereigns to law as a ‘‘foreign quasi sovereign’’ has no bring public nuisance suits on behalf of their basis in Alabama and Tennessee law. Our out-of-state citizens. TVA as well as Alabama resolution of the other issues in this case as intervenor argue with some force that the makes it unnecessary for us to resolve this district court’s decision that North Carolina issue. 310 615 FEDERAL REPORTER, 3d SERIES the defendant’s activities are specifically 120 (emphasis added); see also Fowler v. authorized by law.’’). Fayco, Inc., 290 Ala. 237, 275 So.2d 665, [15, 16] So too Tennessee. An activity 669 (1973) (nuisance not intended to pre- that is explicitly licensed and allowed by vent harms that would ‘‘affect only one of a Tennessee law cannot be a public nuisance. fastidious taste’’) (quoting Ala.Code § 6–5– See, e.g., O’Neil v. State ex rel. Baker, 185 120). Tenn. 534, 206 S.W.2d 780, 781 (1947); Fey v. Nashville Gas & Heating Co., 16 Tenn. [18] In contrast, the EPA’s regulations App. 234, 64 S.W.2d 61, 62 (1933). Addi- regarding NAAQS and the SIPs imple- tionally, Tennessee’s Deputy Air Director, menting them are understandably de- one of the officials responsible for manag- signed to protect even those individuals ing the air permitting process, testified particularly sensitive to emissions. that in issuing emissions permits the state ‘‘NAAQS must protect not only average takes into account the same factors that healthy individuals, but also ‘sensitive citi- would be considered by a court in a nui- zens’—children, for example, or people sance case. The only way that a permit- with asthma, emphysema, or other condi- authorized activity can be enjoined under a tions rendering them particularly vulnera- nuisance theory is if it is operating negli- ble to air pollution.’’ Am. Lung Ass’n v. gently, a claim not before us in this case. EPA, 134 F.3d 388, 389 (D.C.Cir.1998). See Fey, 64 S.W.2d at 62. Thus while it is This case does not join the issue of wheth- technically accurate to state that an act er TVA is in compliance with the various that is not illegal can still be a nuisance, permits under which it operates, and we that proposition is simply not relevant in assume, without deciding, that it is. If this case because TVA’s Tennessee plants TVA is in compliance with the more de- are expressly permitted to operate as they manding federal EPA requirements and do. As TVA’s facilities operate under per- state law SIPs, it cannot be in violation of mits, required by Congress and EPA regu- less-stringent state law nuisance stan- lations, we cannot say that the plant emis- dards. sions of which North Carolina complains are a public nuisance. VI. [17] In sum, TVA’s plants cannot logi- cally be public nuisances under Alabama While we must overturn the district and Tennessee law where TVA is in com- court’s injunction, North Carolina is by no pliance with EPA NAAQS, the corre- means without remedy. As already noted, sponding state SIPs, and the permits that the section 126 process provides protection implement them. These standards impose for states that believe they are suffering more stringent requirements than source from improper interstate pollution. state nuisance law. Alabama and Tennes- ‘‘[D]ownwind states retain their statutory see nuisance law only prohibits activities right to petition for immediate relief from that substantially interfere with the aver- unlawful interstate pollution under section age person—for example, a person of ‘‘or- 126, 42 U.S.C. § 7426.’’ North Carolina v. dinary health and sensibilities, and ordi- EPA, 531 F.3d 896, 930 (D.C.Cir.2008) (per nary modes of living,’’ Jenkins v. CSX curiam). This section is the primary pro- Transp., Inc., 906 S.W.2d 460, 462 (Tenn. cess for states to address interstate emis- Ct.App.1995) (emphasis added), or ‘‘an or- sions that they believe cause problems dinary reasonable man,’’ Ala.Code § 6–5– with their attainment of NAAQS. NORTH CAROLINA v. TENNESSEE VALLEY AUTHORITY 311 Cite as 615 F.3d 291 (4th Cir. 2010)

Indeed, North Carolina has already filed must be given to any region that may be section 126 claims with regard to the very affected before such changes can take TVA plants against which it sought public place. Id. And should any of these ave- nuisance rulings in this case. The district nues fail to satisfy the state, the Clean Air court recognized that ‘‘even in the present Act allows petitions for judicial review of a dispute, North Carolina began its pursuit broad range of EPA actions, including of relief by utilizing the normal administra- promulgation of air standards and EPA tive channels established by the CAA.’’ approval of SIPs, see 42 U.S.C. North Carolina v. Tenn. Valley Auth., 593 § 7607(b)(1), while Alabama and Tennes- F.Supp.2d at 816. The EPA initially de- see laws provide for similar administrative nied North Carolina’s petition because it and judicial appeals of state permitting believed a new set of regulations it had decisions, see Ala.Code §§ 22–22A–6(a)(4), promulgated, known as the Clean Air In- 22A–7(c)(6); Tenn.Code §§ 68–201– terstate Rule (CAIR), 70 Fed.Reg. 25,162 105(a)(1), 68–201–108(a), 4–5–322. (May 12, 2005), would address the state’s This list of possible remedies does not concerns. However, after the D.C. Circuit even include private law remedies that reversed CAIR because it believed aspects may be available to North Carolina. In- of the rule were inconsistent with the deed, if North Carolina believes that TVA Clean Air Act, see North Carolina v. EPA, is not complying with its permits, the 531 F.3d at 901, it also remanded North Clean Air Act provides for suits ‘‘against Carolina’s section 126 claims for further any person TTT who is alleged to have EPA consideration in light of its decision. See Sierra Club v. EPA, 313 Fed.Appx. violated TTT or to be in violation of (A) an 331 (D.C.Cir.2009) (per curiam). Those emission standard or limitation under this claims remain pending, and there is no chapter or (B) an order issued by the suggestion that the process will fail to Administrator or a State with respect to provide North Carolina with a full and fair such a standard or limitation.’’ 42 U.S.C. venue for airing its concerns. § 7604(a)(1). The statute further grants a cause of action against the EPA if it fails Nor is section 126 the only remedy to perform any non-discretionary responsi- North Carolina could invoke. By federal bility, 42 U.S.C. § 7604(a)(2), and also al- law, states are required to provide com- lows suit against any entity that constructs ment periods before SIPs can be issued or a source of emissions without securing the modified, and North Carolina ‘‘had the op- requisite permits. 42 U.S.C. § 7604(a)(3). portunity to protect [its] interests before If North Carolina believes that any of the fact by commenting and objecting to these violations have occurred, it remains the proposed standard.’’ Ouellette, 479 free to pursue such avenues as well. U.S. at 498 n. 18, 107 S.Ct. 805. It appar- ently chose not to do so, and cannot com- As this non-exclusive discussion of reme- plain now that it desires a different resolu- dies demonstrates, North Carolina has a tion. However, if either Tennessee or number of possible paths to pursue in its Alabama decides to modify its SIP in the entirely laudable quest to guarantee pure future, North Carolina will have ample air to its citizens. Seeking public nuisance opportunity to make its views known. In injunctions against TVA, however, is not addition, SIPs must provide for written an appropriate course. The laws in place notice before a new source can be con- have been designed by Congress to protect structed or an existing source can be mod- our air and water. Plaintiff would replace ified. 42 U.S.C. § 7426(a)(1). This notice them with an unknown and uncertain liti- 312 615 FEDERAL REPORTER, 3d SERIES

gative future. As the Supreme Court has No. 08–1858. emphasized, the legal difficulties with this United States Court of Appeals, approach are legion. No matter how lofty Fourth Circuit. the goal, we are unwilling to sanction the least predictable and the most problematic Argued: March 23, 2010. method for resolving interstate emissions Decided: July 30, 2010. disputes, a method which would chaotically Background: Union newly elected as upend an entire body of clean air law and collective bargaining representative for could all too easily redound to the detri- pilots of merged airline sued competing ment of the environment itself. union formed to support former union’s candidacy in election, asserting civil claim VII. for violation of Racketeer Influenced and Corrupt Organizations Act (RICO). The For the foregoing reasons, we reverse United States District Court for the the judgment of the district court and Western District of North Carolina, Mar- remand with directions to dismiss the ac- tin K. Reidinger, J., 2008 WL 2761388, tion. dismissed for failure to state claim, and REVERSED AND REMANDED. thus, for lack of subject matter jurisdic- tion. Appeal was taken. Holding: The Court of Appeals, Diana Gribbon Motz, Circuit Judge, held that alleged extortionate acts failed to yield , pattern of racketeering activity. Affirmed.

1. Federal Courts O776 Court of Appeals reviews de novo a district court’s dismissal for failure to state a claim. Fed.Rules Civ.Proc.Rule 12(b)(6), US AIRLINE PILOTS ASSOCIATION, 28 U.S.C.A. Plaintiff–Appellant, 2. Federal Civil Procedure O1835 v. On motion to dismiss for failure to state a claim, all of the factual allegations AWAPPA, LLC; John McIlvenna; contained in the complaint must be accept- Mitch Vasin; Peter Blandino; Eric ed as true. Fed.Rules Civ.Proc.Rule Ferguson; Jeff Koontz; Russ Payne; 12(b)(6), 28 U.S.C.A. Keith Krueger; Eric Auxier; Christo- pher Cundari; Jack Tooke; David 3. Federal Civil Procedure O1772 Braid; Robert J. Narloch; Bruce A. To survive a motion to dismiss for Hannah; Ron Gabaldon; Shawn failure to state a claim, the complaint need Metzker; Jurie Maree; John Does 1– not provide detailed factual allegations, but 100; Al Casby; Jeff Abbott; Mark it must provide the grounds of plaintiff’s Doyal; Larry Diehl; Steve Trimmer; entitlement to relief with more than labels CJ Szmal; Joe Heil; Kevin Steele, De- and conclusions and more than a formulaic fendants–Appellees. recitation of the elements of a cause of