On January 13, 2009 in North Carolina ex rel. Cooper v. Tennessee Valley Authority, 2009 WL 77998 (W.D. N.C. Jan. 13, 2009), District Judge Lacy Thornburg ruled that the emissions from three publicly owned and operated power plants in Tennessee and Alabama were public nuisances contributing to “significant hurt, inconvenience [and] damage in North Carolina. The cost of compliance will exceed $1 Billion dollars for these plants.

The court did note that North Carolina had tried and failed to obtain relief through the ordinary administrative channels. However, the court found that the court, and not the EPA or the states could decide whether the emissions at issue were a public nuisance. The standard was simply whether in the court’s opinion the emissions were unreasonable.

If the case is not significantly narrowed on appeal, then lawyers on all sides of these issues will likely agree that there will be a massive rise in the number of lawsuits challenging just about everything. Shrimp fishermen from Alabama and Louisiana might sue Iowa and Illinois farmers for adding nitrogen to the Mississippi at unreasonable levels, thereby harming fish stocks. Citizens of the Northeastern states might sue the Midwestern states for contributing to acid rain. Citizens of Appalachia might sue mining companies for mountaintop removal. Native Americans in Alaska and Canada, not to mention citizens of other island nations in the Pacific might sue every power plant in the United States for contributing to global warming and endangering their lands with floods.

States may find that they have to sue every other state for every imagined or real wrong that could be raised in order to protect their own citizens. Some commentators have noted as well that a loss in any one case may give rise to thousands of additional cases in which the new plaintiffs can plead collateral estoppel against the loser.

One aspect of the case is whether resorting to the courts to handle inter-regional or even international issues is wise. Do we need to have the courts resolve these issues because the legislature is unable or unwilling to legislate solutions? Or are these issues best left to individual states and countries to resolve by compacts, treaties, or national or international legislation?

— James L. Pray