Regulation by Litigation: Fourth Circuit Weighs in on Nuisance Suits Involving Air Emissions

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The Fourth Circuit Court of Appeals has become the latest federal appellate court to weigh in on the viability of public nuisance lawsuits to effectively regulate air emissions. In North Carolina v. Tennessee Valley Authority, (No. 09-1623, July 26, 2010), a unanimous three-judge panel vacated an injunction granted by a North Carolina district court that required power plants located in Tennessee and Alabama to install additional pollution control devices and reduce their emissions. The State of North Carolina filed suit against electricity provider Tennessee Valley Authority (TVA) in early 2006 alleging that emissions migrating into North Carolina from TVA?s eleven coal-fired power plants constitute a public nuisance that contributes to adverse health effects and damage to natural resources.

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