The Fourth Circuit Issues an Important Opinion Rejecting Environmental Regulation by Litigation
On Monday the Fourth Circuit issued an opinion in a public nuisance suit that contains important legal reasoning that is likely to impact global warming litigation. See State of North Carolina v. Tennessee Valley Authority, No. 90-1623, Slip op. (4th Cir. Jul. 26, 2010). To be clear, the suit against the TVA was not a global warming case. Rather, it was a public nuisance case in which the State of North Carolina sought to use public nuisance theory to impose restrictions on Alabama and Tennessee energy plants to reduce the amount of sulfur dioxide and nitrous oxides that they emitted, even though the plants were operating within their state and federal permits.
The trial court had entered judgment for North Carolina, declaring the emissions a public nuisance and issuing an injunction requiring the Tennessee and Alabama plants to install expensive scrubber plants to remove sulfur dioxide and nitrous oxide from their emissions.
The Fourth Circuit Court of Appeals -- in a unanimous panel opinion -- reversed the trial court. The court premised its opinion on some fundamental precepts that should discourage other courts from using public nuisance theory to regulate air pollution.
First, the court held that there is a strong presumption that a common-law public nuisance theory is preempted by the complex framework of federal and state statutes and regulations governing air pollution. The court explained that comprehensive framework, and then observed:
The system of statutes and regulations addressing the problem [of air pollution] represents decades of thought by legislative bodies and agencies and the vast array of interests seeking to press upon them a variety of air pollution policies. To say this regulatory and permitting regime is comprehensive would be an understatement. To say it embodies carefully wrought compromises states the obvious. But it is the work of many, many people, and it is in place.
. . . [The district court's] decision threatens to scuttle the extensive system of anti-pollution mandates that promote clean air in this country. If courts across the nation were to use the vagaries of the public nuisance doctrine to overturn the carefully enacted rules governing airborne emissions, it would be increasingly difficult for anyone to determine what standards would govern. Energy policy cannot be set, and the environment cannot prosper, in this way.
Slip op. at 10-11. The court continued:
It ill behooves the judiciary to set aside a congressionally sanctioned scheme of many years' duration -- a scheme, moreover, that reflects the extensive application of scientific expertise and has set in motion reliance interests and expectations on the part of those states and enterprises that have complied with its requirements. To replace duly promulgated ambient air quality standards with standards whose content must await the uncertain twists and turns of litigation will leave whole states and industries at sea and potentially expose them to a welter of conflicting court orders across the country.
Slip op. at 16.
As the court recognized, public nuisance standards are blunt tools that are often vague and indeterminate. This is, in part, due to the fact that public nuisance is the Swiss Army knife of the common law, being pressed into service in a pinch to address loud parties, prostitution, obstacles in highways, bullfights, and smells from pig farms. Applying International Paper Co. v. Ouellette, 479 U.S. 481 (1987), the court reasoned:
We can state . . . with assurance that Ouellette recognized the considerable potential mischief in those nuisance actions seeking to establish emissions standards different from federal and state regulatory law and created the strongest cautionary presumption against them.
Slip op. at 19. Thus, where Congress has granted states a role in the federal regulatory regime and permitting process, both field and conflict preemption principles come into play, and at a minimum they prevent the use of common law public nuisance to create a wholly different role for states (like North Carolina). As the court explained, the fact that the federal statute has a generic savings clause does not change this analysis. Slip op. at 20.
The Fourth Circuit's opinion has an entire section devoted to the difference between the branches of government and their institutional capabilities. It recognizes that agencies -- with the notice and comment process -- are better equipped to regulate in a forward-looking mode and to digest an entire body of science to create empirically-based regulations. See slip op. at 21-23 ("[W]e doubt seriously that Congress thought that a judge holding a twelve-day bench trial could evaluate more than a mere fraction of the information that regulatory bodies can consider."). The court instructed:
It is crucial therefore that courts in this highly technical arena respect the strengths of the agency processes on which Congress has placed its imprimatur. Regulations and permits, while hardly perfect, provide an opportunity for predictable standards that are scientifically grounded and thus give rise to broad reliance interests.
Slip op. at 23-24.
These fundamental principles articulated by the Fourth Circuit are not limited to cases involving sulfur dioxide or nitrous oxide. They would apply equally to global warming litigation, and they highlight the inherent inadequacy of the judicial branch and the common law to provide the sort of empirical, forward-looking regulations that would promote stability and predictability in this important area of public policy.
The Fourth Circuit's opinion also articulated a basic principle of public nuisance law that is an independent reason why the TVA could not be held liable for creating a public nuisance: where the conduct complained of has been expressly approved by the applicable federal and/or state authorities, it cannot be a public nuisance as a matter of law. Slip op. at 29-30, 32 ("If TVA is in compliance with the more demanding federal EPA requirements and state law SIPs, it cannot be in violation of less-stringent state law nuisance standards.").
