The U.S. Fourth Circuit Court of Appeals on Monday overturned a U.S. district judge’s ruling that required the Tennessee Valley Authority to move up its schedule of installing emissions-control equipment on its coal-fired power plants. (The ruling is here.)

Last year, U.S. District Judge Lacy H. Thornburg of Asheville, N.C., agreed with arguments made in a lawsuit against the TVA by North Carolina’s attorney general, declared the plants a “public nuisance” because they affected the air quality in western North Carolina, and instructed the TVA to invest additional money in pollution-control devices.

The ruling Monday by a three-judge panel of the Third Circuit is great for several important reasons: It helps restrain politically motivated attorneys general, sets limits on judicial overreach in which judges issue specific instructions to federal agencies, and finally, recognizes Congress ultimately as the policymaking branch of government responsible for setting national standards. From the opinion:

This [District Court] ruling was flawed for several reasons. 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. The result would be a balkanization of clean air regulations and a confused patchwork of standards, to the detriment of industry and the environment alike. Moreover, the injunction improperly applied home state law extraterritorially, in direct contradiction to the Supreme Court’s decision in International Paper Co. v. Ouellette, 479 U.S. 481 (1987). Finally, even if it could be assumed that the North Carolina district court did apply Alabama and Tennessee law, it is difficult to understand how an activity expressly permitted and extensively regulated by both federal and state government could somehow constitute a public nuisance. For these reasons, the judgment must be reversed.

The National Association of Manufacturers last year  joined in an amicus brief supporting the TVA with the  U.S. Chamber of Commerce, the American Petroleum Institute, the Public Nuisance Fairness Coalition, the Utility Air Regulatory Group, and the American Forest & Paper Association. That brief is here, and the summary of the case from the NAM’s Manufacturing Law Center is here.

• Raleigh News & Observer, “Appeals court reverses TVA emissions ruling
• AP, “4th Circuit reverses ruling on TVA emissions“

Unfortunately, on the other side of the country, the California Supreme Court upheld the ability of local governments to hire contingency attorneys to carry out government lawsuits, including public nuisance suits, against business.  (County of Santa Clara v. Super. Ct S163681, opinion here.) (continue reading…)