• Authored by Steve O’Day, soday@sgrlaw.com

On July 26, the Fourth Circuit U.S. Court of Appeals reversed a lower court ruling that had found that pollutant emissions from four coal-fired power plants operated by the Tennessee Valley Authority constituted a public nuisance to the State of North Carolina, and vacated an injunction requiring stringent emissions controls on the four plants.

In its ruling, the Fourth Circuit stated that it is “difficult” to see how emissions that were explicitly permitted and regulated by EPA and the State of Tennessee could be a public nuisance.

The Court stated that “if allowed to stand, the injunction would encourage courts to use vague public nuisance standards to scuttle the nation’s carefully created system for accommodating the need for energy production and the need for clean air.” It would result in a “balkanization of clean air regulations and a confused patchwork of standards”.

The ruling is widely viewed as an impediment to the use of common law nuisance claims to address alleged air pollution when the emissions are permitted under the Clean Air Act. The ruling’s effect on pending cases challenging greenhouse gas emissions under a nuisance theory is less clear, because there is currently no permitting program for emission of greenhouse gases.