Last January, U.S. District Judge Lacy Thornburg of North Carolina ruled in "North Carolina ex rel. Cooper v. Tennessee Valley Authority" coal-fired plant emissions a public nuisance.
Initially, this decision was a sleeper. No more. Among the recent legal commentators have been R. Trent Tayor of McGuire Woods in TOXICS LAW REPORTER [copy here], Maureen Martin of The Heartland Institute in THE PLAIN DEALER, and an Inside the Beltway attorney for this blog.
Today, here is an exclusive interview with Chuck Moellenberg Jr., a partner with Jones Day. Since the late 1990s, Moellenberg and this product-liability team in the Pittsburgh office have been the architects of the defense strategy in lead paint public nuisance litigation. He, along with Jones Day partners Paul Michael Pohl and Laura Ellsworth, represents Sherwin-Williams. Early last July, the Rhode Island Supreme Court acquitted the lead paint defendants, including Sherwin-Williams, of contributing or causing a public nuisance and indicated the case should have never come to trial. Here is that RI SC opinion Download Statev.LeadIndustriesAssoc.,Inc.
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Exclusive to Lawandmore.com - Chuck Moellenberg, Jones Day partner, on "North Carolina v. TVA"
1. The use of public nuisance law to address interstate air and water pollution started over a century ago. It is a well established use of public nuisance, as I have written before on this issue. Pollution of a common resource is a classic interference with a public right. As a matter of public nuisance law, there is nothing new or dramatic in the opinion. Likewise, the use of injunctive relief to abate the public nuisance by ordering TVA to take particular actions to reduce the emission of pollutants fits with traditional equitable remedies in public nuisance.
2. The opinion should have no effect on expanding the use of public nuisance law for products. The opinion does not mention products cases nor should it. There is sufficient support from environmental pollution cases to support the application of public nuisance law and it is a distinct area from products.
3. For the same reason, the district court's treatment of expert testimony and general population effects resulting from increased pollutants should have no cross-over impact on product liability law. The principles differ, and the point of the district court's decision is to remove potentially harmful effects on a public resource. The analysis would be quite different, and I expect the outcome would change, if individuals, whether as a class or individually, sued for personal injuries resulting from the alleged TVA emissions. The causation analysis would be much more strict in terms of both general and specific causation, and other potential causes of injury would enter into the equation and complicate the causation determination.
4. The decision also should have no impact on the global warming cases that were dismissed and are awaiting decision in the appellate courts. Those cases turned on the political question doctrine, an issue not addressed in the TVA opinion because it is not implicated. The political question rule applies in the global warming cases because the President's foreign policy powers and the close connection between the United States' negotiating position on global warming with other nations and the relief sought in the global warming suits. Those suits sought to change U.S. policy because the plaintiffs disagreed with the Bush Administration.
5. We need to remember that the TVA decision will be appealed and the Fourth Circuit will have the next word. The important question in my mind is to define the circumstances in which it is appropriate and permissible for a court to use public nuisance to remedy a perceived environmental problem when Congress and the EPA have not acted. This is a question of institutional competence as as well as appropriate limits on judicial action.
The decision also raises a question of federal versus state rights - showing another example of states becoming more aggressive when the federal government fails - or chooses not - to act. In general, our system of government is organized to allow elected representatives to make the policy decisions and courts exist to enforce the law and protect individual rights.
As I have written with my colleagues, the extensive legislative and administrative regulation of air and water pollution should leave few gaps left for public standards on matters that turn heavily on analysis of scientific and medical data and policy determinations that must balance questions of acceptable risk, technical and economic feasibility and cost to taxpayers and rate payers.
It will be intriguing to see how the Fourth Circuit weighs those issues, which are likely to influence the outcome of the appeal, if the case continues. As the district court seems to be suggesting, a political solution seems preferable. [Our prior article is Mollenberg, Holewinski and Dahl, "No Gap Left: Getting Public Nuisance Out of Environmental Regulation and Public Policy," BNA EXPERT EVIDENCE REPORT, Vol. 7. No. 18 (September 24, 2007)].
6. For all these reasons, it would be surprising to see the plaintiffs' tort bar jump quickly into filing new cases similar to TVA or seeking personal injury damages. The likely plaintiffs will continue to be public officials with environmental responsibilities and environmental advocacy groups.
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Chuck Moellenberg, Jr., partner with Jones Day, can be reached in the product liability practice in Pittsburgh chmoellenberg@jonesday.com. That group is focused on the pending review by the California Supreme Court of the contingency issues in the Santa Clara lead paint public nuisance case. [CA Appeals court opinion allowing contingency as long as government entity maintains full control Download H031540]
If the law is a reflection of the will of the people, TVA should tread very carefully in their decision whether or not to appeal the NC case.
TVA sought sovereign immunity thinking it could bowl over any plaintiff and it usually did just that. But the District Court judge threw that defense out. Just the intimation of the power of the “king” is intimidating; TVA has gotten away with much more than it should have. It has the federal thumb of power over 80,000 square-miles of exclusive TVA territory and its millions of inhabitants.
Because the TVA is such a different political animal I have termed it a separate and distinct government entity, hence a parallel government.
Today, TVA’s reputation in the eyes of many is far from being good; in fact, I believe its reputation and credibility is the worst in its 75 year history. To appeal the NC pollution case would be tantamount to being run out of town on a rail by much of the “taxed” ratepayers in the Valley. Higher rates, incompetent management and gross wastefulness are only a few recent examples of TVA’s ineptitude.
I had hoped (hope doesn’t win legal cases) that somehow that NC case could also turn on the constitutionality of the TVA. As best I can determine, the Supreme Court never has ruled on that, only on narrow but peripheral issues.
TVA is an anomaly of the U.S. Constitution, different from all other federal agencies and charged erroneously from the start to be something it never could be – a flexible corporation with the power of eminent domain. (The FDR “rule”.)
Please keep me posted on TVA’s decision of whether or not they will appeal the NC case and the basis for it. TVA carries a large contingent of lawyers and does not hesitate hiring counsel. Oh, the millions wasted on unnecessary litigation!
While the present discussion is on the finer points of nuisance law, the bigger one should be on the constitutionality of the 1933 TVA Act.
Ernest Norsworthy
emnorsworthy@earthlink.net
My website is http://norsworthyopinion.com for more on the TVA.
Posted by: Ernest Norsworthy | March 23, 2009 at 03:02 PM