The Gap-Filling Role of Nuisance in Interstate Air Pollution

Sangi, Emily
May 2011
Ecology Law Quarterly;2011, Vol. 38 Issue 2, p479
Academic Journal
Air pollutants from coal-fired power plants frequently cross state borders, which can impact a receiving state's ability to meet and maintain the National Ambient Air Quality Standards (NAAQS) mandated by the Clean Air Act (CAA). North Carolina asserted that such interstate air pollution was responsible for its nonattainment of certain NAA QS. Afier engaging in a protracted and circuitous petitioning process under the CAA, which failed to compel large electric utilities in thirteen states to reduce emissions of certain pollutants, North Carolina then looked to the common law of public nuisance for relief Under public nuisance law, a defendant is liable for unreasonably interfering with a right common to the general public. In North Carolina ex rel. Cooper v. Tennessee Valley Authority (TVA), North Carolina sued the TVA, contending that the air pollution from the agency's eleven coal plants in three surrounding states crossed North Carolina's borders in unreasonable amounts, creating a public nuisance under the nuisance laws of each source state. This Note argues that, in overturning the lower court's finding that four of the plants created a public nuisance, the Fourth Circuit missed an important opportunity to use source state nuisance law as a gap-filler and provide relief where the CAA provided none. It explains how, in reaching its decision, the Fourth Circuit muddled the application of nuisance law, in contravention of the goals of public nuisance and the CAA, and misconstrued and misapplied Supreme Court precedent. This Note advances the popular contention that the common law of nuisance rightfully co-exists with, complements, and fills the gaps in, statutory regimes. Specifically, it defines the proper edges of the gap public nuisance actions may fill in the interstate air pollution context and advises the courts to adopt such a conception.


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