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NORTH CAROLINA V. TENNESSEE VALLEY AUTHORITY 291 Cite As 615 F.3D 291 (4Th Cir

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NORTH CAROLINA V. TENNESSEE VALLEY AUTHORITY 291 Cite As 615 F.3D 291 (4Th Cir NORTH CAROLINA v. TENNESSEE VALLEY 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 Alabama, Intervenor, between pursuit of ‘‘a state interest of the Commonwealth of Kentucky; State of highest order,’’ on the one hand, and, on Louisiana; 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) law 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 Iowa; 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 regulation 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. Administrative Law 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 laws 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.
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