No. 10-997

Supreme Cou~t, U.8.FILED

7- 2011I3FFIP.I:: P.l: Till= CLERK

IN THE

STATE OF NORTH CAROLINA ex rel.

ROY COOPER, ATTORNEY GENERAL,

Petitioner,

V.

TENNESSEE VALLEY AUTHORITY

and STATE OF ALABAMA,Respondents.

On Petition for Writ of Certiorari to theUnited States Court of Appeals

for the Fourth Circuit

BRIEF OF AMICI CURIAEDEFENDERS OF WILDLIFE,

NATIONAL PARKS CONSERVATIONASSOCIATION, NATURAL RESOURCESDEFENSE COUNCIL AND SIERRA CLUB

IN SUPPORT OF PETITIONER

MITCHELL S. BERNARDNATUR~L RESOURCES

DEFENSE COUNCIL40 West 20th StreetNew Yock, NY 10011(212) 727-4469

JOHN T. SUTTLES, JR.Counsel of Record

SOUTHERN ENVIRONMENTALLAW CENTER

601 West Rosemary StreetSuite 220Chapel Hill, NC 27516(919) 967-1450jsuttles~selcnc.org

Counsel for Amici Curiae

Blank Page

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................iii

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF ARGUMENT .....................................3

ARGUMENT ...............................................................5

THE FOURTH CIRCUIT’SDECISION CONTRAVENESCONGRESS’SINTENT IN THECLEAN AIR ACT ANDCONFLICTS WITH THEDECISIONS OF THIS COURTAND OTHER CIRCUIT COURTS ................ 5

no The Fourth Circuit’s DecisionConflicts with This Court’sDecision in Ouellette ..............................5

Bo The Fourth Circuit’s DecisionContravenes Congress’s Intentto Preserve Common-LawNuisance Actions Based onSource-State Law andConflicts with This Court’sAnalysis in Ouellette ............................11

II. THIS CASE SIGNIFICANTLYAFFECTS A MATTER OFPUBLIC IMPORTANCE .............................16

CONCLUSION ..........................................................19

ii

TABLE OF AUTHORITIES

CASES

Federal Cases

Chevron U.S.A., Inc. v. Natural ResourcesDefense Council, Inc., 467 U.S. 837 (1984) ...........5

Cipollone v. Liggett Group, Inc.,505 U.S. 504 (1992) ........................................13, 15

Connecticut v. American Electric Power Co.,582 F.3d 309 (2d Cir. 2009), cert. granted,79 U.S.L.W. 3342 (U.S. 2010) (No. 10-174) ..........2

Georgia v. Tennessee Copper Co.,206 U.S. 230 (1907) ....................................3, 12, 14

Gutierrez v. Mobil Oil,798 F. Supp. 1280 (W.D. Tex. 1992) ....................19

Her Majesty the Queen in the Right of theProvince of Ontario v. Detroit,874 F.2d 332 (6th Cir. 1989) ............................6, 10

Huron Portland Cement Co. v. Detroit,362 U.S. 440 (1960) ..............................................13

Illinois v. Milwaukee,731 F.2d 403 (7th Cir. 1984) ..................................6

oooIII

International Paper Co. v. Ouellette,479 U.S. 481 (1987) ......................................passim

Milwaukee v. Illinois,451 U.S. 304 (1981) ..........................................8, 15

New Jersey v. New York,283 U.S. 473 (1931) ................................................9

North Carolina ex rel. Cooper v. TVA,

615 iF.3d 291 (4th Cir. 2010) ....................4, 6, 7, 16

North Carolina ex rel. Cooper v. TVA,593 IF. Suppo 2d 812 (W.D.N.C. 2009) .................17

North Carolina ex rel. Cooper v. TVA,593 IF. Supp. 2d 812 (W.D.N.C. 2008) .................17

Washington v. General Motors Corp.,406 U.S. 109 (1972) ..............................................17

Wyeth v. Levine,555 U.S. __., 129 S.Ct. 1187 (2009) ..............11, 15

State Cases

Borland v. Sanders Lead Co.,369 So.2d 523 (Ala. 1979) ......................................9

Louisville & Nashville Terminal Co. v.Lellyett, 85 S.W. 881 (Tenn. 1904) ........................9

iv

Morgan County Concrete Co. v. Tanner,374 So.2d 1344 (Ala. 1979) ....................................9

Russell Corp. v. Sullivan,790 So.2d 940 (Ala. 2001) ......................................9

STATUTES

Federal Statutes

Clean Water Act, 33 U.S.C. §9 1251 et seq .......passim

Section 505(e), 33 U.S.C. 9 1365(e) ................5, 7

Section 510, 33 U.S.C. § 1370 .........................5, 7

Clean Air Act, 42 U.S.C. 99 7401 et seq ............passim

Section 101(a)(3), 42 U.S.C. § 7401(a)(3) ........4, 12

Section 101(b)(1), 42 U.S.C. 9 7401(}))(1).. 3, 16, 18

Section 101(c), 42 U.S.C. 9 7401(c) ......................17

Section 116, 42 U.S.C. 9 7416 ........................4, 5, 8

Section 118, 42 U.S.C. § 7418(a) ...........................4

Section 302(e), 42 U.S.C. § 7602(e) .......................8

Section 304(e), 42 U.S.C. § 7604(e) ...............4, 5, 8

V

Act of July 14, 1955, Pub. L. No. 84-159, 69Stat. 322 ...........................................................4, 12

Air Pollution Control Act, Pub. L. No. 88-206, sec. 5(f)(1), 77 Stat. 392 (Dec. 17,1963) .................................................................4, 12

Air Quality Act of 1967, Pub. L. No. 90-148,sec. 108(b), 81 Stat. 485 (Nov. 21, 1967) ...............4

State Statutes

Ala. Code § 22-28-23 ...................................................9

Ala. Code § 6-5-120 (2009) ..........................................9

Ala. Code § 6-5-121 (2009) ..........................................9

Tenn. Code Ann. § 68-201-114 ....................................9

Legislative Histor~v

S. Rep. No. 91-1196 (1970) ........................................14

S. Rep. No. 100-231 (1993) ........................................15

Treatises and Other Sources

National Parks Conservation Association,Great Smoky Mountains National Park:Air Quality at Risk, available at

vi

http://www.npca.org/darkhorizons/pdf/GRSM.pdf .............................................................18

William Rodgers, Environmental Law § 3:1(2009) ....................................................................14

INTEREST OF AMICI CURIAE1

Amici are national, membership-based, non-profit organizations committed to protecting theenvironment and its natural resources. Defenders ofWildlife ("Defenders") is dedicated to the protectionof all native wild animals and plants in their naturalcommunities. Defenders has approximately 400,000members nationwide, including 7,605 who live inNorth Carolina. Defenders advocates newapproaches to wildlife conservation that will helpkeep species from becoming endangered, andemploys education, litigation, research, legislation,and advocacy to defend wildlife and their habitat.Defenders seeks to limit pollution from coal-firedpower plants to improve air quality and wildlifehabitat, and to mitigate the impacts of climatechange. Defenders and its members includeindividuals with scientific, professional, educational,recreational, aesthetic, moral, spiritual, and otherinterests in the preservation of wildlife and theenvironment.

The National Parks Conservation Association("NPCA") seeks to protect and enhance the naturaland cultural resources of the nation’s National Park

1 This brief is properly before the Court pursuant to Supreme

Court Rule 37.2 because amici notified all parties of theirintent to file this brief at least 10 days prior to the due date andall parties have consented to its filing. The parties’ letters ofconsent are being submitted with the brief. Pursuant toSupreme Court Rule 37.6, no counsel for any party authoredthis brief either in whole or in part, and no persons other thanamici curiae or their counsel have made any monetarycontributions to the preparation or submission of this brief.

2

System, forests, wilderness areas, and open spacesthrough research, public education, advocacy, andlitigation. NPCA was founded in 1919 and today hasmore than 450,000 members nationwide. NPCA’sSoutheast Regional Office in Tennessee serves morethan 9,800 North Carolina NPCA members andfocuses on air-quality issues in Great SmokyMountains National Park. NPCA and its membersactively seek to restore and protect healthy air,thriving ecosystems, and scenic values to theNational Park System by reducing air pollution,particularly emissions from coal-fired power plants.

The Natural Resources Defense Council("NRDC") is a national non-profit organization withmore than 400,000 members nationwide and morethan 9,200 members in North Carolina. One ofNRDC’s organizational purposes is to protect publichealth and the environment, including the healthand environment of its members. Reducing harmfulpower-plant pollution is a key component of thiswork. NRDC has identified TVA’s power plants as asignificant source of sulfur dioxide, nitrogen oxides,and particulate matter in the air of North Carolina.As part of its advocacy to protect public health andthe environment, NRDC attorneys representRespondents Open Space Institute, Inc., Open SpaceConservancy, Inc. and the Audubon Society of NewHampshire in Connecticut v. American ElectricPower Co., 582 F.3d 309 (2d Cir. 2009), cert. granted,79 U.S.L.W. 3342 (U.S. 2010) (No. 10-174).

The Sierra Club works to promote energyefficiency, natural resource conservation, the

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development of clean energy, and the protection ofpublic health. As a focus of its commitment to asafe, clean, reliable energy future, the Sierra Clubhas developed a comprehensive set of nationalinitiatives to reduce or eliminate the harmful effectspower plant air pollution. Its 15,000-member NorthCarolina Chapter seeks to protect the state’s fragileecosystems and improve air quality by enforcing airpollution control requirements, with a particularfocus on mitigating the adverse effects of coal-firedpower plants.

Amici and their members have longstandingand demonstrated interests in protecting people andnatural and cultural resources from the harmfuleffects of air pollution. The Fourth Circuit’s decisionwill hamper amici’s efforts to protect public healthand the environment from harmful air pollution byeliminating important common law remedies thatCongress expressly preserved in the Clean Air Act("CAA" or "Act") in furtherance of the Act’s goal to"protect and enhance the quality of the Nation’s airresources." 42 U.S.C. § 7401(b)(1).

SUMMARY OF ARGUMENT

The Fourth Circuit’s decision in this caseignores the plain language of the Clean Air Act("Act") and conflicts with Supreme Court precedentby barring what Congress expressly preserved in theAct: common-law remedies to abate excessive airpollution. As quasi-sovereigns, states have for morethan a century exercised police powers to protect "allthe earth and air within [their] domain," Georgia v.

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Tenn. Copper Co., 206 U.S. 230, 237 (1907). Fromenactment of the earliest federal laws to control airpollution through the modern CAA amendments,Congress has consistently upheld and maintainedstate authority to exercise these historic policepowers as an integral facet of the Act’scomprehensive scheme. See, e.g., Act of July 14,1955 Pub. L. No. 84-159, 69 Stat. 322, 322; AirPollution Control Act, Pub. L. No. 88-206, sec. 5(f)(1),77 Stat. 392, 396-98 (Dec. 17, 1963); Air Quality Actof 1967, Pub. L. No. 90-148, sec. 108(b), 81 Stat. 485,491,494-97 (Nov. 21, 1967); Clean Air Act, 42 U.S.C.§§ 7401(a)(3), 7416, 7604(e), 7418(a). The goals andhistory of the modern Act confirm Congress’s intentto maintain source -state common -law nuisanceclaims as an integral component of the cooperativestate-federal regulatory system designed to addressair pollution.

Contrary to Congress’s mandate, the FourthCircuit concluded that North Carolina’spublicnuisance action pursuant to the laws of itsneighboring source-states would "scuttle,"ratherthan promote, the Act’s comprehensive regulatoryregime and replace it with "an unknown anduncertain litigative future." North Carolina ex tel.Cooper v. TVA, 615 F.3d 291, 311-12 (4th Cir. 2010).This decision conflicts with the Supreme Court’sruling in International Paper Co. v. Ouellette, inwhich this Court held that a source-state common-law nuisance action to abate interstate waterpollution "would not frustrate the goals of the [CleanWater Act]" or "disturb the balance among federal,source-state, and affected-state interests." 479 U.S.

481, 498-99 (1987). Accordingly, amici respectfullyrequest that the Court grant North Carolina’spetition for a writ of certiorari.

ARGUMENT

THE FOURTH CIRCUIT’S DECISIONCONTRAVENESCONGRESS’SINTENT INTHE CLEAN AIR ACT AND CONFLICTSWITH THE DECISIONS OF THIS COURTAND OTHER CIRCUIT COURTS.

The Fourth Circuit’s DecisionConflicts with This Court’s Decision inOuellette.

The Fourth Circuit decision violates thecardinal rule of statutory construction bysubstituting its policy choices for plain statutorylanguage. In the Clean Air Act, Congress expresslypreserved states’ traditional common law authorityto control air pollution. And where Congress "hasdirectly spoken to the precise question at issue . . .that is the end of the matter." Chevron U.S.A., Inc.v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842(1984).

In International Paper Co. v. Ouellette, thisCourt held that a savings clause in the Clean WaterAct, which is nearly identical to the Clean Air Actsavings provisions at issue in this case, "by itsterms" preserves nuisance suits under source-statecommon law. 479 U.S. 481, 497 (1987); compare 33U.S.C. §§ 1365(e), 1370 with 42 U.S.C. §§ 7604(e),7416. The Fourth Circuit acknowledged that

6

Ouellette applies to its interpretation of the CleanAir Act, North Carolina ex. rel. Cooper v. TVA, 615

F.3d 291, 306 (4th Cir. 2010), but nonetheless heldthat the Act pre-empts North Carolina’s source-statenuisance action. The Fourth Circuit’s decisiondirectly conflicts with decisions of the SupremeCourt and the Sixth and Seventh Circuit Courts ofAppeals. See Her Majesty the Queen in the Right ofthe Province of Ontario v. Detroit, 874 F.2d 332 (6thCir. 1989) (applying Ouellette to the Clean Air Actand holding that the plain language of the Actcompels the conclusion that Congress did not pre-empt state control over air pollution); Illinois v.Milwaukee, 731 F.2d 403, 413-414 (Tth Cir. 1984)(holding that nuisance actions alleging violations ofthe pollution source-state are not pre-empted bysavings provisions of the Clean Water Act).

In Ouellette, Vermont property owners broughta nuisance action under Vermont common lawagainst a paper mill in New York for dischargingwater pollution that reached their state. 479 12-.S. at483-84. This Court held that while the Clean WaterAct pre-empts such nuisance actions when broughtunder the law of the affected state, "[t]he savingclause specifically preserves other state actions, andtherefore nothing in the Act bars aggrievedindividuals from bringing a nuisance claim pursuantto the law of the source State." Id. at 497 (emphasisin original); see also Illinois v. Milwaukee, 731 F.2dat 413-414. The Court reasoned that a source-statecommon-law nuisance action to abate interstatewater pollution "would not frustrate the goals of the[Clean Water Act]" because "application of the sourceState’s law does not disturb the balance among

federal, source-state, and affected-state interests,"and, "[b]ecause the [Clean Water] Act specificallyallows source States to impose stricter standards,the imposition of source-state law does not disruptthe regulatory partnership established by the permitsystem." Id. at 498-99. The "savings clause" atissue inOuellette, comprising sections 510 and505(e) of the Clean Water Act, is functionallyidentical to the two savings provisions in the CleanAir Act and, therefore, the Court’s holding governsthis case and compels the same result. See NorthCarolina ex. rel. Cooper, 615 F.3d at 306 ("WhileOuellette involved a nuisance suit against a sourceregulated under the Clean Water Act, all partiesagree its holding is equally applicable to the CleanAir Act.").

Section 510 of the Clean Water Act preservesthe right of states "to adopt or enforce (A) anystandard or limitation regarding discharges ofpollutants or (B) any requirement respecting controlor abatement of pollution," provided that thesestandards are no less stringent than federalrequirements. 33 U.S.C. § 1370. It further notesthat nothing under the Clean Water Act should "beconstrued as impairing or in any manner affectingany right or jurisdiction of the States with respect tothe wetters (including boundary waters) of suchStates." Id. Section 505(e) states that "[nothing] inthis section shall restrict any right which any person¯ . . may have under any statute or common law toseek enforcement of any effluent standard orlimitation or to seek any other relief...." 33 U.S.C.§ 1365(e). Taken together, this Court held that thesesections "allow[] States to impose higher

standards on their own point sources, and . . . thisauthority may include the right to impose highercommon-law as well as higher statutoryrestrictions." Id. at 497 (citing Milwaukee v. Illinois,451 U.S. 304 (1981)).

The Clean Air Act’s analogous savingsprovisions compel the same result in the context ofinterstate air pollution. Section 116 preserves theright of states "to adopt or enforce (1) any standardor limitation respecting emissions of air pollutants or(2) any requirement respecting control or abatementof air pollution" with respect to stationary sources,such as TVA’s coal-fired power plants, provided thatthese standards are no less stringent than federalrequirements. 42 U.S.C. § 7416. Section 304(e)provides for citizen enforcement of the CAA andexpressly preserves state authority to enforce morestringent state requirements, including common-lawduties. It states that "[n]othing in this section shallrestrict any right which any person"--defined insection 302(e) to include states--"may have underany statute or common law to seek enforcement ofany emission standard or limitation or to seek anyother relief." 42 U.S.C. § 7604(e); 42 U.S.C.§ 7602(e). Like the Clean Water Act’s savingsclause, these sections of the Clean Air Act "by [their]terms allow" stricter source-state common-lawrequirements. Ouellette, 479 U.S. at 497.

In this case, the district court properly appliedsource-state law to provide common-law remediesthat this Court in Ouellette held were expresslypreserved. Both Alabama and Tennessee, where theTVA power plants are located, have expressly

9

preserved common-law remedies in their air-pollution-control statutes. See Tenn. Code Ann.§68-201-114 ("Nothing in this part shall beconstrued to abridge or alter any rights of action,civil or criminal, arising from statute, common lawor equity."); Ala. Code § 22-28-23 ("[N]othing in thissection, shall be construed to limit or abrogate anyprivate; remedies now available to any person for thealleviation, abatement, control, correction, orprevention of air pollution or restitution for damageresulting therefrom."). Moreover, the highest courtsof both states have applied the common law of publicnuisance to pollution sources operating under theauspices of federally enforceable permits. See, e.g.,Borland v. Sanders Lead Co., 369 So.2d 523, 526(Ala. 1979) (rejecting the contention that compliancewith a Clean Air Act permit insulates the permitteefrom common law liability under Alabama law); andLouisville & Nashville Terminal Co. v. Lellyett, 85S.W. 881 (Tenn. 1904) (holding state issued permitsdo not shield against common law duties). See alsoNew Jersey v. New York, 283 U.S. 473, 482-83 (1931)(holding that that compliance with federallyauthorized permits does not foreclose nuisanceclaims); Ala. Code §§ 6-5-120, 6-5o121 ("The fact thatthe act done may otherwise be lawful does not keepit from being a nuisance."); Morgan County ConcreteCo. v. Tanner, 374 So.2d 1344, 1346, 1347-48 (Ala.1979) (Even where defendants "argue that theiractions were in accordance with state and federalregulations and that they were permissible undervarious permits, the plaintiffs may still maintain anaction if they can prove the elements ofnuisance."); Russell Corp. v. Sullivan, 790 So.2d 940

10

(Ala. 2001) (authorizing a nuisance action against asource covered by a water discharge permit).Therefore, TVA’s procurement of air permits doesnot immunize it from North Carolina’s nuisanceaction under the common law of Alabama andTennessee.

There is no question that, in addition toproviding statutory remedies, Alabama andTennessee provide private citizens recourse undercommon law for excessive air pollution from TVAplants that constitutes a nuisance. See Ouellette,479 U.S. at 497. It would defy any rationalinterpretation of Ouellette then to conclude that aneighboring, quasi-sovereign state, acting as parenspatriae on behalf of its citizenry, would not haveequal rights to address the same nuisance underAlabama and Tennessee law.

By barring North Carolina’s recourse to thecommon laws of the pollution sources’ home states,the Fourth Circuit’s decision ignores the plainlanguage of the Clean Air Act and conflicts withSupreme Court precedent. Furthermore, if leftunresolved, the Fourth Circuit decision creates asplit between the circuits on a matter that affectsthe relation of states inter se. Ontario v. Detroit, 874F.2d at 344 (applying Ouellette to the Clean Air Act,and holding that plaintiffs’ lawsuit based on morestringent source-state-law requirements were"supplemental to other legal and administrativeprocedures and requirements" of the CAA).

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The Fourth Circuit’s DecisionContravenes Congress’s Intent toPreserve Common-Law NuisanceActions Based on Source-State Lawand Conflicts with This Court’sAnalysis in Ouellette.

Even if the Act’s plain language did not clearlyevince Congress’s intent to preserve state common-law actions, the goals, policies, and history of the Actconfirm this objective. Before concluding that theClean Water Act "by its terms" preserves source-state nuisance actions, the Court in Ouellette firstresolved a claim that did not turn on the plainlanguage of the Clean Water Act’s savingsprovisions--whether plaintiffs could apply thecommon law of the affected state to addressupstream pollution. The Court found that, unlikethe Clean Water Act’s preservation of source-statecommon law, "the Act itself does not speak directlyto the issue, [and so] the Court must be guided bythe goals and policies of the Act in determiningwhether it in fact pre-empts an action based on thelaw of an affected State." Ouellette, 479 U.S. at 493.Applying Ouellette to this case. if sections 116 and304 of the Clean Air Act do not expressly preservesource-state nuisance actions, courts would then lookto the Act "as a whole, its purposes and its history."Id.; see also Wyeth v. Levine, 555 U.S. __, 129 S.Ct.1187, 1194 (2009) ("[T]he purpose of Congress is theultimate touchstone in every pre-emption case.").This purpose-driven analysis further demonstratesCongress’s intent to preserve states’ ability to bring

12

source-state public-nuisance actionsexcessive interstate air pollution.

to abate

From its inception through its latestamendments, the Clean Air Act reflects Congress’senduring commitment to preserving states’ authorityto protect "all the earth and air" within theirborders. Georgia v. Tenn. Copper, 206 U.S. at 237.In the first major federal law relating to airpollution, Congress expressed its intent "to preserveand protect the primary responsibilities and rights ofthe States and local governments in controlling airpollution." Act of July 14, 1955, Pub. L. No. 84-159,69 Stat. 322, 322. As the regulatory structure of theAct grew more complicated through subsequentamendments, Congress consistently reaffirmed stateauthority to abate air pollution. See, e.g., AirPollution Control Act, Pub. L. No. 88-206, sec. 5(b),77 Stat. 392, 396 (Dec. 17, 1963) ("[M]unicipal, State,and interstate action to abate air pollution shall beencouraged and shall not be displaced by Federalenforcement action."). The modern Clean Air Actreiterates that "air pollution prevention (that is, thereduction or elimination, through any measures, ofthe amount of pollutants produced or created at thesource).., is the primary responsibility of the Statesand local governments." 42 U.S.C. § 7401(a)(3).

In addition to the specific provisions upholdingthe "primary responsibility" of the states, the Act asa whole reflects Congress’s intent to preserve theirhistoric authority to control air pollution. In theClean Air Act, as in the Clean Water Act, "whereCongress wanted to affect common-law rights, it

13

expressly stated its intent in the Act[s]." Ouellette,479 U.S. at 503 (Brennan, J. concurring in part anddissenting in part). Thus, in section 116 of the CleanAir Act, Congress expressly retained state authorityto establish and enforce additional requirements forstationary sources that are more rigorous than theminimum standards of the Act. With respect tomobile sources, however, section 116 expressly pre-empts state authority to adopt or enforce additionalrequirements. By expressly pre-empting stateregulation ofmobile sources and not similarlylimiting stateauthority over stationary sources,Congress demonstrated its commitment topreserving traditional state police powers over thelatter. See Cipollone v. Liggett Group, Inc., 505 U.S.504, 517 (1992) ("Congress’ enactment of a provisiondefining the pre-emptive reach of a statute impliesthat matters beyond that reach are not preempted.").

The Clean Air Act’s legal foundations andlegislative history further demonstrate Congress’scommitment to preserving common-law nuisanceactions based on source-state law. Long before theClean Air Act, the Supreme Court recognized theauthority of states to exercise their traditional policepowers to control and abate air pollution in order toprotect, public health and natural resources. "[T]ofree from pollution the very air that people breatheclearly falls within the exercise of even the mosttraditional concept of what is compendiously knownas the police power." Huron Portland Cement Co. v.Detroit, 362 U.S. 440, 442 (1960). More than acentury ago, this Court recognized that each statehas "an interest independent of and behind the titles

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of its citizens, in all the earth and air within itsdomain," and held that this right extends to actionsin federal court to abate air pollution nuisances thatoriginate in other states. Georgia v. Tenn. CopperCo., 206 U.S. at 237. Congress built the Clean AirAct against the backdrop of this well-developed bodyof common law through which states protected theircitizens and resources from air pollution, includingthat which emanates from other states. As legalscholars have observed, "the experience of hundredsof years of attempting to combat air pollution bynuisance and other common-law doctrines was notsummarily swept aside" by the Clean Air Act.William Rodgers, Environmental Law § 3:1 (2009).Congress made this clear in drafting the Act.

In reporting on the 1970 Act, the Senate PublicWorks Committee confirmed Congress’s intent that"[c]ompliance with standards under this Act wouldnot be a defense to a common law action for pollutiondamages." S. Rep. No. 91-1196, at 38 (1970). In fact,Congress anticipated and attempted to preventexactly what the Fourth Circuit has done here. TheSenate Committee on Environment and PublicWorks report accompanying the 1990 Amendmentsgave the following reason for including in varioussections of the Act multiple provisions explicitlypreserving state and local authority:

[o]n other occasions where similarschemes have been enacted, Federalcourts have concluded that the Federallaw is preemptive of some State or localauthorities even when such preemption

15

was not explicitly stated or intended.To assure that such preemption of Stateand local law, whether statutory orcommon, does not occur, environmentallegislation enacted by the Congress hasconsistently evidenced great care topreserve State and local authority andthe consequent remedies ....

S. Rep. No. 100-231, at 9732 (1993). (emphasisadded). The courts may not second-guess Congress’schosen approach. Milwaukee v. Illinois, 451 U.S.304, 315 n.8 (1981) ("When Congress has spoken, itsdecision controls, even in the context of interstatedisputes.").

Apart from Congress’s clear intent to preserveexisting common-law actions, principles offederalism require courts to assume that "thehistoric police powers of the States were not to besuperseded by the Federal Act unless that was theclear and manifest purpose of Congress." Wyeth v.Levine, 555 U.S. __, 129 S.Ct. 1187, 1194-95 (2009)(internal quotations and alterations omitted). Seealso Cipollone, 505 U.S. at 517. Thus, the FourthCircuit’s pre-emption analysis ignores the Act’s plainlanguage, it conflicts with principles of statutoryconstruction established in this Court’s decisions,and it disregards the strong presumption againstpre-emption of historic state police powers.

Despite this Court’s decision in Ouellette, theplain language of the Clean Air Act, and Congress’sclear intent to preserve source-state common-lawremedies to address interstate air pollution, the

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Fourth Circuit’s decision finds that these remedieswere pre-empted.2 It holds that the district court’sdecision "threatens to scuttle the extensive system ofanti-pollution mandates that promote clean air inthis country," North Carolina ex rel. Cooper, 615F.3d at 298, and concludes that "TVA’s plants cannotlogically be public nuisances under Alabama andTennessee law where TVA is in compliance with...permits that implement" the Act’s provisions. Id. at310. In fact, it is this decision itself that threatensto "scuttle" Congress’s clear intent to preservesource-state common-law remedies.

II. THIS CASE SIGNIFICANTLY AFFECTS AMATTER OF PUBLIC IMPORTANCE.

The Clean Air Act was enacted to "protect andenhance the quality of the Nation’s air resources soas to promote the public health and welfare and theproductive capacity of the population." 42 U.S.C.§ 7401(b)(1). The preservation of state common lawrecognizes the need for flexibility in reaching thisgoal, and respects the traditional role of stategovernments in protecting their own citizens andnatural resources. As shown above, Congress hasrepeatedly demonstrated its enduring commitmentto a cooperative regulatory structure in which stateand federal approaches to controlling air pollutioncan coexist. It did so because the coexistence of

2 It is worth noting that the Clean Water Act has also beendescribed as "comprehensive and far reaching," Ouellette, 479U.S. at 489, and thus the Fourth Circuit is mistaken to suggestthat the Clean Air Act’s comprehensiveness distinguishes itfrom Ouellette’s application.

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these different approaches promotes, rather than"scuttles," the comprehensive sweep of the Act.North Carolina’s suit to enjoin TVA’s excessiveemissions of air pollutants directly promotes theAct’s goals of reducing and eliminating pollution, 42U.S.C. § 7401(c), and demonstrates the importantplace of common-law nuisance claims in achievingthese goals.

Congress was well aware when it enacted theClean Air Act that "[a]ir pollution is, of course, one ofthe most notorious types of public nuisance inmodern experience." Washington v. Gen. MotorsCorp., 406 U.S. 109, 114 (1972). The pervasive,adverse effects of the pollutants at issue in this caseexemplify the severity and complexity of theproblems the Act sought to address. For example,the district court found that SO2 and NOx emissionsfrom TVA’s plants caused a significant increase inannual average PM2.5, or fine-particle pollution,concentrations in North Carolina. North Carolina exrel. Cooper v. TVA, 593 F. Supp. 2d 812, 822(W.D.N.C. 2009). PMe.5 causes adverse cardio-pulmonary effects and an increased risk ofpremature death. Id. Pollutants from TVA’s plantsalso cause specific and unique harm to theecosystems of western North Carolina, which in turncause social and economic harms throughout thestate. Id. at 823-24. Wilderness areas and naturalattractions, including Great Smoky MountainsNational Park, are particularly vulnerable. Id. at823-24. Situated in the Southern Appalachians ofTennessee and North Carolina, the park has beendesignated an International Biosphere Reserve

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because of its great biodiversity. National ParksConservation Association, Great Smoky MountainsNational Park: Air Quality at Risk, available athttp ://www. npca. org/darkhorizons/p df/GR SM.p df.The park, however, suffers the highest rates ofnitrogen and sulfur pollution of any monitoredlocation in North America, resulting in park rainfallthat is five to ten times normal acidity. Id. Highozone levels in the park can cause visitors toexperience breathing problems and asthma attacks,and average visibility sometimes extends for lessthan one mile. ld.

Congress created a collaborative frameworkthat preserves states’ traditional police powersbecause the Act’s mandates alone may not always besufficient to rectify such excessive air pollution.Despite the comprehensive scope of the Act and itslong history, it has not been uniformly successfuland its goals remain elusive. While the lawrepresents an attempt to fashion a comprehensivesolution to the problem of air pollution, "Congresshas not, however, found a uniform, nationwidesolution to all aspects of this problem and, indeed,has declared ’that the prevention and control of airpollution at its source is the primary responsibility ofStates andlocal governments."’ 42 U.S.C.§ 7401(b)(i).

North Carolina has suffered from persistent airquality problems that harm public health, uniquelyvulnerable natural resources, and the economy. TheState made significant efforts to abate in-stateemissions, but had no adequate or timely redress for

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excessive interstate emissions from TVA’s powerplants under the Act’s specific programs. Thus,North Carolina resorted to a public-nuisance lawsuitagainst TVA under the common law of the states inwhich TVA’s power plants are located. If Congresshad chosen to pre-empt state common law, passageof the Act would have had the perverse result ofallowing this air pollution to rise to the level of apublic nuisance and continue to worsen withoutaffording a remedy. See Gutierrez v. Mobil Oil, 798F. Supp. 1280, 1284 (W.D. Tex. 1992). It wouldhave, in effect, contravened the goals of the CleanAir Act, and undermined the Act’s federal-statecooperative regulatory structure. Congress did notdo this. Rather, Congress expressly retained source-state public-nuisance actions as a method to promoteand secure the Act’s pollution prevention andhealthful air-quality goals. This Court should grantcertiorari to correct the Fourth Circuit’s decision,which conflicts with Supreme Court precedent andthe decisions of other circuit courts on a matter ofgreat public importance.

CONCLUSION

For the reasons set forth above and in the Stateof North Carolina’s petition, the Court should grantcertiorari in this case.

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Respectfully submitted,

John T. Suttles, Jr.*Southern Environmental Law Center601 West Rosemary Street, Suite 220Chapel Hill, North Carolina 27516(919) 967-1450

Counsel for Amici Curiae Defenders ofWildlife, National Parks ConservationAssociation, Natural Resources DefenseCouncil, and Sierra Club

Mitchell S. BernardNatural Resources Defense Council40 West 20th StreetNew York, New York 10011(212) 727-4469

Counsel for Amicus Curiae NaturalResources Defense Council

Dated: March 7, 2011.

* Counsel of Record