No. 10-997

IN THE

upreme ourt of

FILED

I4AR 7 - 2011~FICE OF THE CLERK

STATE OF NORTH CAROLINA EX REL. RoY COOPER,

ATTORNEY GENERAL OF NORTH CAROLINA,

Petitioner,V.

TENNESSEE VALLEY AUTHORITY, et al.,Respondents.

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

for the Fourth Circuit

AMICI CURIAE BRIEF OF ENVIRONMENTALAND ADMINISTRATIVE LAW PROFESSORS

IN SUPPORT OF STATE OF NORTH CAROLINA

March 7, 2011

DONALD T. HORNSTEINVICTOR FLATT

MARIA SAVASTA-KENNEDY

PATRICK PARENTEAU

Counsel of RecordENVIRONMENTAL AND NATU~’AL

RESOURCES LAW CLINICVERMONT LAW SCHOOL

164 Chelsea StreetP.O. Box 96South Royalton, VT 05068(802) 831-1627ppa~’enteau@vermontlaw.edu

Attorr~ey for Amici CuriaeEnvironmental andAdministrative LawProfessors

WILSON-EPES PRINTING Co., INC. - (202) 789-0096 - WASHINGTON, D. C. 20002

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TABLE OF CONTENTS

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

INTEREST OF AMICI ........................................

SUMMARY OF THE ARGUMENT ....................

ARGUMENT ........................................................

I. CONGRESS INTENDED IN THECLEAN AIR ACT TO PRESERVE THERIGHTS OF "DOWNSTREAM" STATESTO USE A SOURCE-STATE’S OWNCOMMON LAW OF NUISANCE TORECTIFY SUBSTANTIAL HARMSTO PUBLIC HEALTH AND THEENVIRONMENT ......................................

A. Congress intended in the federalClean Air Act that air-pollutioncontrol, especially as to stationarysources of emissions, remain the"primary responsibility" of the states.

B. Congress provided "savings" clausesin the federal Clean Air Act topreserve public-nuisance actionsgenerally, as well as specificallysaving from preemption public-nuisance actions against federalfacilities, such as that brought hereby North Carolina against federalfacilities owned and operated by theTennessee Valley Authority ................

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(i)

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TABLE OF CONTENTS--Continued

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II. THE FINAL DECISION OF THECOURT OF APPEALS WARRANTSREVIEW BECAUSE IT SUBSTITUTESTHE PANEL’S POLICY PRE-FERENCES FOR CONGRESSIONALINTENT, BECAUSE IT UNDERMINESTHIS COURT’S PREEMPTION CASE-LAW GENERALLY, AND BECAUSEIT CANNOT BE RECONCILEDWITH THIS COURT’S CONTRARYHOLDING IN INTERNATIONALPAPER COMPANY v. OUELLETTE .......

A. The Court of Appeals wronglyimplies preemption in the face ofcongressional savings clauses to thecontrary and without showing thatNorth Carolina’s public-nuisanceaction creates a conflict with theregulatory requirements of the CleanAir Act ..................................................

B. The Court of Appeals substituted itspolicy preferences instead of congres-sional intent and in lieu of thisCourt’s caselaw requiring obstaclepreemption to reflect "direct andpositive" conflicts and not merely"hypothetical" tension with whatlower courts see as a statute’spurposes and objectives .......................

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TABLE OF CONTENTS--Continued

III. REVIEW IS WARRANTED HEREBECAUSE OF THIS COURT’S GRANTOF CERTIORARI IN AMERICANELEC. POWER CO. v. STATE OFCONNECTICUT .......................................

CONCLUSION ....................................................

APPENDIX

Biographies of the Amici .................................

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TABLE OF AUTHORITIES

CASES Page

Altria Group, Inc. v. Good, 129 S. Ct. 538(2008) .........................................................13, 14

American Electric Power Company Inc.,et al. v State of Connecticut, et al.,No 10-174 (certiorari granted December6, 2010) ...............................................4, 5, 22, 23

Bruesewitz v. Wyeth LLC, 562 U.S.(2011) ........................................................14

Cipollone v. Liggett Group, Inc., 505 U.S.504 (1992) .................................................. 9

Engine Mfgrs. Ass’n. v. South Coast AirQuality Mgmt. District, 541 U.S. 246(2004) ......................................................... 6

Gade v. National Solid Waste ManagementAssociation, 505 U.S. 88 (2005) ....... 3, 14, 19, 20

Georgia v. Tennessee Copper, 206 U.S. 230(1907) ........................................................10

Hancock v. Train, 426 U.S. 167 (1976) ........10, 11

Hines v. Davidowitz, 312 U.S. 52 (1941) .....19

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

Milwaukee v. Illinois, 451 U.S. 304 (1981)..23

Missouri v. Illinois, 200 U.S. 496 (1906) .....10

North Carolina v. TVA, 593 F. Supp. 2d812 (2009) .................................................. 6

Pacific Gas & Electric Company v. StateEnergy Res. Conservation & Dev. Comm.,461 U.S. 190 (1983) ..............................16,

Rice v. Santa Fe Elevator Corp., 331 U.S.218 (1947) ..................................................14

17,20

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TABLE OF AUTHORITIES--Continued

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Riegel v. Medtronic, 552 U.S. 312 (2008) .....14State of North Carolina ex rel Roy Cooper

v. TVA, 515 F. 3d. 344 (4th Cir. 2008) .....12Train v. Natural Resources Defense

Council, Inc., 421 U.S. 60 (1975) .............. 7Washington v. General Motors Corp., 406

U.S. 109 (1972) .......................................... 7Williamson v. Mazda Motor of America,

Inc., 562 U.S. __ (2011) .................. 4, 19, 21, 22Wyeth v. Levine, 129 S. Ct. 1187 (2009) ....... 3, 4

CONSTITUTION, STATUTES, ANDREGULATIONS

42 U.S.C. § 2011 et seq .................................16

42 U.S.C. § 7401(a)(3) ................................... 5

42 U.S.C. § 7416 ........................................... 9

42 U.S.C. § 7418(a)(1) ...................................12

42 U.S.C. § 7604(e) .......................................12

H.R. Rep. No. 1783, 91st Cong., 2d Sess.56, reprinted in 1970 U.S.C.C.A.N. 5356,5388 (1970) ................................................5-6, 9

S. Rep. No. 1196, 91st Cong., 2d Sess. 56(1970) .........................................................10

S. Rep. No. 414, 92d Cong., 1st Sess. 81,reprinted in 1972 U.S.C.C.A.N. 3668,3746-47 (1972) ........................................... 6

S. Rep. 101-228, 101st Cong., 2d Sess. 197,reprinted in 1990 U.S.C.C.A.N. 3385,3582 (1990) ................................................16

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TABLE OF AUTHORITIES--Continued

U.S. Const. art. VI, cl, 2 (SupremacyClause) .......................................................

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OTHER AUTHORITIES

Keith Casto, Public Power and the PublicInterest: An Analysis of the TVA AirPollution Litigation, 49 Tenn. L. Rev.789 (1982) ..................................................10, 11

Robert S. Peck, A Separation-of-PowersDefense of the "Presumption AgainstPreemption," 84 Tulo L. Rev. 1185 (2010)..14

William Rodgers, ENVIRONMENTAL LAW§ 3:1 (2009) ................................................ 9

IN THE

upreme eurt ef the nitet tate

No. 10-997

STATE OF NORTH CAROLINA EX REL. ROY COOPER,ATTORNEY GENERAL OF NORTH CAROLINA,

Petitioner,V.

TENNESSEE VALLEY AUTHORITY, et al.,Respondents.

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

for the Fourth Circuit

AMICI CURIAE BRIEF OF ENVIRONMENTALAND ADMINISTRATIVE LAW PROFESSORS

IN SUPPORT OF STATE OF NORTH CAROLINA

INTEREST OF AMICI ~

Amici are professors and scholars who teach,research, and publish articles and books on environ-mental law, administrative law, constitutional law,

1 Pursuant to Supreme Court Rule 37.6, counsel for amicirepresents that it entirely authored this brief and no party, itscounsel, or any other entity but amici and their counsel made amonetary contribution to fund the briefs preparation orsubmission. All parties have consented to the filing of this brief,and undersigned counsel notified Counsel of Record for allparties of amici curiae’s intent to file this brief at least 10 daysbefore March 7, 2010. Letters reflecting their consent are filedwith the Clerk.

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and related topics. Amici wish to provide the courtwith an independent assessment of the issuespresented and offer insights on the legal doctrinesapplicable to this controversy, and the reasons whythis Court should grant the petition for a writ ofcertiorari.

The views expressed here are solely those of theindividual amici and not necessarily those of theirinstitutions. This brief is properly before the Courtpursuant to consent of the parties.

SUMMARY OF THE ARGUMENT

The decision of the Court of Appea]s is flatly incon-sistent with this Court’s holding in InternationalPaper v. Ouellette, 479 U.S. 481 (1987). Yet this maynot even be the most glaring reason why certiorari iswarranted. At its core, the decision below rests on apolicy judgment by the Court of Appeals that publicnuisance law - caricatured by the Court of Appealsas an "all purpose" tort used to "regulate prostitution,obstacles in highways, and bullfights" - will alwayslack "anything resembling a principle." The centralproblem with the Court of Appeals’ conclusion is thatits own view of public nuisance law is not at issue.Instead, the question is what Congress intended.And, as this Court stated in Ouellette, "[a]lthoughCongress intended to dominate the field of pollutionregulation, the saving clause negates the inferencethat Congress ’left no room’ for state causes of action.¯ . . nothing in the Act bars aggrieved individualsfrom bringing a nuisance action pursuant to the lawof the source State." Thus, the Court of Appeals’decision in this case is not only one where a lowercourt seeks to replace this Court’s caselaw, it is onewhere a lower court seeks to substitute its own policyconclusions for those of Congress.

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The Court of Appeals, driven by its policy-basedantipathy to public nuisance law, seeks to bolster itsviews through selective readings both of the DistrictCourt’s actions in this case and of this Court’s deci-sion in Ouellette. The result is a pastiche of fact andlaw at odds with the kind of careful inquiry thisCourt has always required before a statute is foundto preempt an area of traditional state police power,such as that involving protection of public health andproperty. Wyeth v. Levine, 129 S. Ct. 1187 (2009). AsJustice Kennedy emphasized in Gade v. NationalSolid Waste Management Association, 505 U.S. 88,110 (2005) (Kennedy, J., concurring), "a high thresholdmust be met if a state law is to be preempted forconflicting with the purposes of a federal Act ....[a]ny conflict must be ’irreconcilable .... It]heexistence of a hypothetical or potential conflict isinsufficient...’" (citations omitted). But the Court ofAppeals in this case nowhere found such a conflictbetween the District Court’s order and federalregulation under the Clean Air Act. Indeed, theDistrict Court’s order in large part imposed on TVAmerely an obligation to install pollution-controlequipment "that TVA had stated it planned to installeven in the absence of an injunction." State of NorthCarolina Petition for Writ of Certiorari, at 9.

Rather than identifying any particular conflictbetween the District Court’s order and the CAAregulatory structure, the Court of Appeals insteadpaints a hypothetical picture of numerous federalcourts issuing injunctions that might create conflicts,violating not only Justice Kennedy’s admonitionagainst just this type of conjecture, but also ignoringthe effect of Ouellette in which this Court addressed,and minimized, the risk of multi-jurisdictional confu-sion. This Court’s preemption caselaw cannot be, nor

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has ever been, satisfied by lower courts doing whatthe Court of Appeals did here: merely setting up astraw man and knocking it down.

The gist of this Court’s preemption caselaw is thatpreemption, especially implied preemption in the faceof "savings" clauses, is reserved only to those situa-tions where state law presents a real obstacle tofederal objectives or where it directly conflicts witha federal command. Williamson v. Mazda MotorCompany of America, 562 U.S. __ (2011), slip op. at11 (mere existence of contrary judgment about "costeffectiveness" does not displace congressional intentin savings clause to retain state tort remedies); Wyethv. Levine, 129 S. Ct. 1187, 1211 (2009) (Thomas, J.concurring) ("[w]ith no "direct conflict" between federaland state law, then, the state-law judgment is notpre-empted").

Finally, review in this case is especially warrantedin light of this Court’s grant of certiorari in AmericanElectric Power Company Inc., et al. v State ofConnecticut, et al., No 10-174 (certiorari grantedDecember 6, 2010). The litigation here, and in Amer-ican Electric Power Company, are frequently anderroneously thrown together and critiqued by thosewho see in all common-law actions involving pollu-tion only a "misguided push for judicial regulation"using the "’legal garbage can’ of a tort" (Amicus Briefof Law Professor John C. Yoo, et al., in Support ofPetitioner in American Electric Power Company,referencing the North Carolina v. TVA litigation). Incontrast, this Court has always been far more carefulin reviewing Congress’s intent as to the relativeroles of administrative regulation and common-lawactions, distinguishing, for example, between thedifferences in preemption of federal common law and

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in preemption of source-state common law. Withoutreviewing the Court of Appeals’ decision in this case,there would be significant confusion no matter howthe Court decides American Electric Power Company.

ARGUMENT

I. CONGRESS INTENDED IN THE CLEANAIR ACT TO PRESERVE THE RIGHTSOF "DOWNSTREAM" STATES TO USEA SOURCE-STATE’S OWN COMMONLAW OF NUISANCE TO RECTIFYSUBSTANTIAL HARMS TO PUBLICHEALTH AND THE ENVIRONMENT

A. Congress intended in the federal CleanAir Act that air-pollution control,especially as to stationary sourcesof emissions, remain the "primaryresponsibility" of the states

The Court of Appeals erroneously discounts thenumerous "savings" clauses contained in the CleanAir Act ("CAA" or "Act") lest they, at least in theCourt of Appeals’ view, interfere with "the fullpurposes and objectives" of Congress. (Pet. App. at25a). The error by the Court of Appeals is that itrepeatedly fails to acknowledge that Congress, whenit enacted the CAA, expressly provided for continuedand important roles for states under the Act. Thus,in the Act’s opening provision, Congress finds that"air pollution control is the primary responsibilityof States and local governments." 42 U.S.C.§ 7401(a)(3). And it is clear that when Congressenacted the 1970 CAA, it envisioned a continued rolespecifically for the operation of state common-lawremedies for air pollution. See, e.g., H.R. Rep. No.1783, 91st Cong., 2d Sess. 56 (1970), reprinted in

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1970 U.S.C.C.A.N. 5356, 5388 (1970) (common-lawrights "not affected" by the enactment of the CAA).See also S. Rep. No. 414, 92d Cong., 1st Sess. 81,reprinted in 1972 U.S.C.C.A.N. 3668, 3746-47 (1972)("[c]ompliance with requirements under [the CAA]would not be a defense to a common law action forpollution damages"). North Carolina acted pursuantto this understanding when it successfully estab-lished in the District Court - in findings left undis-turbed by the Court of Appeals - that four large TVAcoal-fired power plants, notwithstanding compliancewith any other requirements, discharge into NorthCarolina through the prevailing winds significantamounts of particulates, sulfur dioxide, nitrogenoxide, and mercury that contribute substantially tothe destruction of flora, fauna, and visibility in NorthCarolina’s southern Appalachian forests and, amongNorth Carolina citizens, to premature deaths, cardi-opulmonary effects, increased asthma and chronicbronchitis, difficulty and pain in breathing, as well assecondary economic effects in terms of lost work-and school days, increased pressure on the State’smedical facilities, and reduced tourism. See NorthCarolina v. TVA, 593 F. Supp. 2d at 815 (2009).

The evidence of congressional intent not to preemptstate public-nuisance actions, especially as applied tostationary sources of air pollution, is particularlystrong given that Congress knew how to (and did)provide for express preemption in limited areas ofair-pollution regulation, such as emission standardsfor new motor vehicles, for which Congress wanted auniform national standard. See Engine Mfgrs. Ass’n.v. South Coast Air Quality Mgmt. District, 541 U.S.246 (2004) (finding express preemption of state motorvehicle emission regulation in specific provisionsof the CAA). But, as this Court has acknowledged,

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Congress’ intent specifically to preempt certain areasof air-pollution regulation reinforces congressionalintent not to preempt continued state regulationmore broadly, and especially not to preempt contin-ued state requirements as to stationary sources of airpollution. Thus, this Court stated in Washington v.General Motors Corp., 406 U.S. 109 (1972):

Air pollution is, of course, one of the most noto-rious types of public nuisance in modernexperience. Congress has not, however, found auniform, nationwide solution to all aspects of thisproblem and, indeed, has declared "that theprevention and control of air pollution at itssource is the primary responsibility of States andlocal governments." To be sure, Congress haslargely pre-empted the field with regards to"emissions from new motor vehicles," and motorvehicle fuels and fuel additives. It has also pre-empted the field so far as emissions fromairplanes are concerned. So far as factories,incinerators, and other stationary devices areimplicated, the States have broad control ....

406 U.S. at 114 (emphasis added). See also Train v.Natural Resources Defense Council, Inc., 421 U.S. 60,87 (1975) (CAA accords states "broad control" over airpollution).

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B. Congress provided "savings" clauses inthe federal Clean Air Act to preservepublic-nuisance actions generally,as well as specifically saving frompreemption public-nuisance actionsagainst federal facilities, such as thatbrought here by North Carolinaagainst federal facilities owned andoperated by the Tennessee ValleyAuthority

When it enacted the Clean Air Act, Congressunderstood that it was legislating in an area in whichstates had sought equitable relief under common-lawdoctrines of nuisance to prevent harm caused by airpollution, and repeatedly emphasized its intent not todisplace this body of law. Accordingly, Congressprovided in CAA Section 116 for "Retention of StateAuthority":

Except as otherwise provided in Sections 119[pertaining to primary nonferrous smelters], 209[expressly prohibiting state standards as toemissions from new motor vehicles], 211 (c)(4)[expressly prohibiting state standards as to fuelsor fuel additives], and 233 [expressly prohibitingstate standards as to aircraft], nothing in thischapter shall preclude or deny the right of anyState or political subdivision thereof to adopt orenforce (1) any standard or limitation respectingemissions of air pollutants or (2) any requirementrespecting control or abatement of air pollution;except that if an emission standard or limitationis in effect under an applicable implementationplan or under Section 111 or 112, such State orpolitical subdivision may not adopt or enforceany emission standard or limitation which is less

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stringent than the standard or limitation undersuch plan or section.

42 U.S.C. § 7416 (emphasis added).

Congress’ choice of language in Section 116 isespecially telling as it contrasts those areas of air-pollution regulation Congress intended expressly topreempt, with "any" other "standard or limitation" or"requirement," which Congress wanted specifically topreserve. As to similarly worded savings clauses,this Court has held that the term, "any requirement,"includes the operation of a state’s common law. Cf.Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517(1992). That Congress in the CAA wanted specifi-cally to preserve state common law actions is wellsupported in the legislative history of the Act. See,e.g., H.R. Rep. No. 1783, 91st Cong., 2d Sess. 56(1970), reprinted in 1970 U.S.C.C.A.N. 5356, 5388(1970) (common-law rights "not affected" by enact-ment of the CAA). As Professor William Rodgerssummarizes in his seminal treatise on environmentallaw:

In the first place, the experience of hundreds ofyears of attempting to combat air pollution bynuisance and other common law doctrines wasnot summarily swept aside. The retention of thecommon law as part of the deep background ofthe legislation is probably best expressed inSection 116 of the Act.

William Rogers, ENVIRONMENTAL LAW § 3:1 (2009).

The legislative history of Section 116 not onlyreflects Congress’ intent not to preempt statecommon-law rights, but also its intent for states touse their retained authority to seek cleaner air andmore stringent emissions limitations than those

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provided by minimum conditions imposed under theCAA "floor." As the Senate Report accompanyingCAA Section 116 states:

This section makes it clear that the States mayadopt for any air quality control region and areencouraged to do so, as their needs demonstrate,stricter ambient standards and plans, or emis-sion standards to maintain a higher level of airquality or to achieve that quality in a shorterperiod of time.

S. Rep. No. 1196, 91st Cong., 2d Sess. 56 (1970)(emphasis added) (discussed in Keith Casto, PublicPower and the Public Interest: An Analysis of theTVA Air Pollution Litigation, 49 Tenn. L. Rev. 789(1982) (early disputes joining EPA and the States ofKentucky, Alabama, and Tennessee against TVA inTVA’s refusal to accede to certain federal and stateair-pollution controls)). Accordingly, if pollution fromout-of-state plants so substantially interferes withits citizens’ public health and environmental qualityas to qualify as a public nuisance even under thecommon-law of these upwind states, Section 116preserves North Carolina’s ability to defend itscitizens’ rights by seeking equitable relief in court, aright which this Court has long recognized. See, e.g.,Missouri v. Illinois, 200 U.S. 496 (1906); Georgia v.Tennessee Copper, 206 U.S. 230 (1907); InternationalPaper Company v. Ouellette, 479 U.S. 481 (1987).

Congress provided further evidence, when itamended Sections 118 and 304 of the CAA in 1977,that it did not intend to preempt state common-lawremedies such as those at issue here. Congress in1977 took up the issue of preemption largely inreaction to this Court’s decision in Hancock v. Train,426 U.S. 167 (1976), holding that a TVA steam plant

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in Kentucky was not subject to state permittingrequirements under the then-existing version of CAASection 118. See Casto, 49 Tenn. L. Rev. at 798("Section 118 was amended in order to reverse the1976 decision of Hancock v. Train"). In the 1970CAA, Congress included Section 118 to waivesovereign immunity of federal facilities, intending thewaiver to force federal facilities to comply withfederal and state air-pollution requirements. Also inthe 1970 CAA, Congress included in Section 304 ofthe 1970 CAA, the "citizen suits" provision, areference back to Section 118, seeking to underscorethat suits could be brought against federal facilities.After this Court in its 1976 Hancock decision foundthe Section 118 waiver, at least as to some types ofactions, to be incomplete, Congress in 1977 amendedthe Act to clarify its intent to preserve a wide rangeof actions against federal facilities, especiallyincluding actions against TVA, the federal agencyat issue in Hancock and an agency with a historyof environmental noncompliance. See Casto, 49Tenn. L. Rev. at 798 ("Congress, however, desired adifferent result and, therefore, amended the Act,citing the large number of federal facilities, includingTVA power plants, that were violating federal pollu-tion laws").

Section 118(a)(1) of the CAA provides in pertinentpart:

Each department, agency, and instrumentality ofthe . . . Federal government engaging inany activity resulting . . in the discharge ofair pollutants . . . shall comply with all Federal,State, interstate, and local requirements.., andprocess and sanctions respecting the control andabatement of air pollution in the same manner,

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and to the same extent as any nongovernmentalagency.

42 U.S.C. § 7418(a)(1). Section 304 of the CAA, the"citizen suits" provision, contains in subsection (e) asavings clause specifically designed to signal congres-sional intent not to preempt traditional state reme-dies, including remedies at common law. It provides:

Nothing in this section shall restrict any rightwhich any person.., may have under any statuteor common law .... Nothing in this section or inany other law of the United States shall beconstrued to prohibit, exclude, or restrict anyState, local, or interstate authority from -bringing any enforcement action or obtaining anyjudicial remedy or sanction in any state or localcourt . . . against the United States, any depart-ment, agency, or instrumentality thereof underState or local law respecting control and abate-ment of air pollution. For provisions requiringcompliance by the United States, departments,agencies, instrumentalities in the samemanner as nongovernmental entities, see Section7418 [CAA § 118] of this title.

42 U.S.C. § 7604(e)(emphasis added). Given theplain meaning of these two provisions, it shouldhardly come as a surprise that, prior to the Court ofAppeals’ merits decision at issue here, a differentpanel of the Fourth Circuit Court of Appeals held inan interlocutory ruling on North Carolina’s public-nuisance action against TVA that the word "require-ment" in the Clean Air Act’s savings clauses includescommon-law requirements such as those imposed bya source-state’s nuisance laws. State of North Caro-lina ex relo Roy Cooper v. TVA, 515 F. 3d. 344, 353(4th Cir. 2008) ("the plain meaning of ’requirement’

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¯ . . foreclose[s] the TVA’s argument that the CAAdoes not mandate compliance with state ’require-ments’ enforced through a common-law tort suit").

In both its original enactment of the CAA in 1970and its amendments in 1977, Congress repeatedlystated its intention that a state’s common-lawremedies against those causing substantial harmthrough their air-pollution activities were not to bepreempted.

II. THE FINAL DECISION OF THE COURTOF APPEALS WARRANTS REVIEWBECAUSE IT SUBSTITUTES TItE PANEL’SPOLICY PREFERENCES FOR CONGRES-SIONAL INTENT, BECAUSE IT UNDER-MINES THIS COURT’S PREEMPTIONCASELAW GENERALLY, AND BECAUSEIT CANNOT BE RECONCILED WITHTHIS COURT’S CONTRARY HOLDING ININTERNATIONAL PAPER COMPANY v.0 UELLETTE

A. The Court of Appeals wrongly impliespreemption in the face of congres-sional savings clauses to the contraryand without showing that North Caro-lina’s public-nuisance action creates aconflict with the regulatory require-ments of the Clean Air Act

In Altria Group, Inc. v. Good, 129 S. Ct. 538 (2008),this Court applied a framework for preemption anal-ysis that reiterates a central maxim, "’[t]he purposeof Congress is the ultimate touchstone’ in every pre-emption case." Id. at 543 (citations omitted). Tobe sure, the Supremacy Clause on which federalpreemption is based will be given effect in those cases

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where Congress, in legislation, expressly seeks topreempt state law. See Bruesewitz v. Wyeth LLC, 562U.S. __ (2011), slip op. at 5. ("the Act expresslyeliminates liability for a vaccine’s unavoidable,adverse side effects"); Riegel v. Medtronic, 552 U.S.312 (2008) (Medical Device Amendments containedan express preemption provision forbidding statesfrom continuing any requirement different from thoseapplicable under the statute). But in the absence ofexpress preemption, this Court has long articulated apresumption against finding implied preemption. SeeRobert S. Peck, A Separation-of-Powers Defense of the"Presumption Against Preemption," 84 Tul. L. Rev.1185, 1196 (2010) (the anti-preemption presumptionkeeps the judiciary from "stepping into legislativeshoes where Congress has not expressed a clear andmanifest intent"). And nowhere is the presumptionagainst implied preemption stronger than it is whenCongress legislates in fields traditionally occupied bythe States. See, e.g., Altria Group, Inc. v. Good, 129S. Ct. 538, 543 (2008) (presumption against preemp-tion "applies with particular force when Congress haslegislated in a field traditionally occupied by theStates"); Gade v. National Solid Waste ManagementAssoc., 505 U.S. 88, 111 (1992) (Kennedy, J., concur-ring) ("we begin ’with the assumption that thehistoric police powers of the States [are] not to besuperceded .... unless that was the clear and manif-est purpose of Congress’") (citations omitted); Rice v.Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)(same).

On its face, therefore, for the Court of Appeals hereto demonstrate its consistency with this Court’s ana-lytical framework, one would expect the Court of Ap-peals at least to acknowledge the burdens of findingin the Clean Air Act preemption of state common-law

15nuisance actions. There is, to begin, no expresspreemption in the CAA of state common-law nuisanceactions against stationary sources, an absence all themore conspicuous given the Act’s express preemptionof state authority as to motor vehicles and aircraft.Yet the Court of Appeals nowhere acknowledges thisconspicuous gap. And as to implying preemption, onewould again expect the Court of Appeals at least torecognize this Court’s longstanding admonitions notto do so lightly especially when Congress legislates ina field, such as is the regulation of air pollution, thatthe Clean Air Act itself underscores is to remainthe "primary responsibility" of the states. But onesearches in vain through the Court of Appeals’opinion looking even for a bare acknowledgement ofthis Court’s longstanding caselaw on point.

The Court of Appeals errs most significantly,however, in its treatment of the multiple savingsclauses Congress crafted in the 1970 CAA andstrengthened in the 1977 CAA amendments. TheCourt of Appeals argues that it "cannot allow non-source states to ascribe to a generic savings clause" ameaning this Court in Ouellette held Congress neverintended. The short answer to this argument is thatit is plainly wrong. The savings clauses in the CleanWater Act at issue in Ouellette are conceded even bythe Court of Appeals to mirror those found in theClean Air Act. Yet in Ouellette, this Court foundthat, "[t]he saving clause negates the inference thatCongress "left no room" for state causes of action,"479 U.S. at 812 (emphasis added), and held squarelythat, "[t]he savings clause specifically preserves otherstate actions, and therefore nothing in the Act barsaggrieved individuals from bringing a nuisance claimpursuant to the law of the source State." 479 U.S. at497 (emphasis in original). Three years after this

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Court announced Ouellette, Congress amended theCAA and again reiterated the importance of preserv-ing common-law remedies:

To assure that such preemption of State or locallaw, whether statutory or common, does notoccur, environmental legislation enacted by theCongress has consistently evidenced great care topreserve State and local authority and theconsequent remedies available to the citizensinjured by the release of harmful substances tothe environment.

S. Rep. 101-228, 101st Cong., 2d Sess. 197 (1990),reprinted in 1990 U.S.C.C.A.N. 3385, 3582 (1990).

Seeking other sources of support for its dismissal ofcongressional intent in the savings clauses, the Courtof Appeals maintains (Pet. App. at 23a) that it mustweigh against Congress’ "admonition" in the CAA’ssavings clauses the instructions of this Court inPacific Gas & Electric Company v. State Energy Res.Conservation & Dev. Comm., 461 U.S. 190 (1983),where the Court analyzed the Atomic Energy Act of1954, 42 U.S.C. §§ 2011 et seq. The Court of Appealsnotes that in the Atomic Energy Act Congress soughtto give a federal agency exclusive regulatory author-ity over issues of"safety" in nuclear power generationwhile preserving in a "general" savings clause thestates’ traditional economically-oriented regulatoryauthority over public utilities (Pet. App. at 24a).The Court of Appeals then concludes, "the case at barmirrors Pacific Gas & Electric insofar as it involvesan attempt to replace comprehensive federal emis-sions regulations with a contrasting state perspectiveabout the emission levels necessary to achieve thosesame public ends" (Pet. App. at 24a).

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The Court of Appeals is not only wrong aboutthe applicability of Pacific Gas & Elec. to the verydifferent statutory scheme in the Clean Air Act, butPacific Gas & Elec. actually undermines, rather thansupports, the Court of Appeals’ conclusions regardingpreemption. Pacific Gas & Eleco is not cited as arelevant precedent by the Ouellette majority butinstead is cited by the dissenters in Ouellette whowould have found in the CAA savings clauses evengreater reservations of states’ common-law rights thanhad the majority.

At issue in Pacific Gas & Elec. is a statute thatdelegated to the Nuclear Regulatory Commissioncomplete authority over questions of nuclear-power"safety," but reserved to the states in a "savings"clause their continued ability to regulate economicissues of public-utility regulation. 461 U.S. at 208.Thus, the Court found, states were without residualpower to regulate nuclear power plants directly as toenvironmental (radiation) matters - that would bethe subject of field preemption in the Atomic EnergyAct, notwithstanding the savings clause which, it wasfound, reserved for the states regulatory authorityover an altogether different field of activity. 461 U.S.at 212 (under the Atomic Energy Act "the FederalGovernment maintains complete control of the safetyand ’nuclear’ aspects of energy generation; the Statesexercise their traditional authority over the need for

generating capacity . . ratemaking, and thelike"). The direct inapplicability of Pacific Gas &Elec. to this case, therefore, is obvious. In Ouellette,this Court held that Congress, in the federal CleanWater Act, used the savings clauses not to demarcatedifferent spheres of regulatory authority betweenfederal and state governments, but instead to clarifythat states retained their authority in the field of

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environmental protection, including the authority toadopt stricter standards under common-law prin-ciples than had the federal government. Thus, thisCourt emphasized in Ouellette, "It]he saving clausespecifically preserves other State actions, and there-fore nothing in the Act bars aggrieved individualsfrom bringing a nuisance claim pursuant to the lawof the source State." 479 U.S. at 497. Accordingly, tothe extent the Court of Appeals based its holding oncongressional field preemption of state common lawactions, it fails to acknowledge, as did this Court inOuellette, that, "[b]ecause the Act specifically allowssource States to impose stricter standards, theimposition of source state law does not disrupt theregulatory partnership established by the permitsystem." 479 U.S. at 499.

B. The Court of Appeals substituted itspolicy preferences instead of congres-sional intent and in lieu of this Court’scaselaw requiring obstacle preemptionto reflect "direct and positive" con-flicts and not merely "hypothetical"tension with what lower courts see asa statute’s purposes and objectives

The Court of Appeals barely disguises its ownantipathy to any state bringing a public nuisanceaction to protect its citizens’ health and environ-mental quality, no matter how well founded in fact orlaw. To the Court of Appeals, public nuisance actionsprovide "no standard of application," lack "anythingresembling a principle," are "the same principlesby which we regulate prostitution, obstacles inhighways, and bullfights" and, as compared to the"defined standards" of the Clean Air Act, are an "ill-defined omnibus tort of last resort." (Pet. App. at

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20a-21a). Although the Court of Appeals addsmysteriously that "[w]e need not hold flatly thatCongress has entirely preempted the field ofemissions regulations (citing Pac. Gas & Elec.)," itthereai~er concludes, "[w]here Congress has chosento grant states an extensive role in the Clean AirAct’s regulatory regime through the SIP and permit-ting process, field and conflict preemption principlescaution at a minimum against according states awholly different role and allowing state nuisance lawto contradict joint federal-state rules so meticulouslydrafted." (Pet. App. at 22a-23a).

The Court of Appeals makes two fundamentalerrors in its preemption analysis. First, its allusion to"field preemption" is flatly inconsistent with thisCourt’s holding in Ouellette. There, this Court held:"[b]ecause the Act specifically allows source States toimpose stricter standards, the imposition of sourcestate law does not disrupt the regulatory partnershipestablished by the permit system." 479 U.S. at 499.Second, the Court of Appeals alludes to conflictpreemption but without ever grappling with, or evenacknowledging, this Court’s repeated admonitionsnot to find conflict preemption too easily. To be sure,the existence of a savings clause will not insulate aparticular application of state law from beingpreempted to the extent "compliance with bothfederal and state regulations is a physical impossi-bility," Gade v. National Solid Wastes Mgmt. Ass’n,505 U.S. 88, 98 (1992), or where state law "standsas an obstacle to the accomplishment and executionof the full purposes and objectives of Congress."Williamson v. Mazda Motor Co., 562 U.S. __ (2011),slip op. at 5. (citing Hines v. Davidowitz, 312 U.S. 52,67 (1941)). But, as Justice Kennedy stated in Gade,"[o]ur decisions establish that a high threshold must

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be met if a state law is to be pre-empted for conflict-ing with the purposes of a federal Act. Any conflictmust be "irreconcilable .... The existence of a hypo-thetical or potential conflict is insufficient to warrantthe pre-emption of a state statute." Gade, 505 U.S. at110 (Kennedy, J., concurring) (citations omitted).

Here, the Court of Appeals not only failed even toacknowledge the high burden this Court requires forconflict preemption, its decision demands reviewbecause it found state remedies preempted, despitebeing within the scope of a congressional savingsclause, without finding there to be such a burden.Nowhere does the Court of Appeals explain how TVA,in complying with the District Court’s injunction,would be prevented from complying with any of itsregulatory obligations under the CAA. The DistrictCourt found the pollution control equipment "readilyavailable" - a finding left undisturbed by the Court ofAppeals - and moreover consisting largely of pollution-control equipment TVA had stated it already plannedto install. State of North Carolina Petition for Writof Certiorari, at 9. Indeed, the effect of the DistrictCourt’s injunction in this case is far less than was theeffect of state law in Pacific Gas & Elec. which thisCourt found not to be preempted. There, the Courtupheld state utility regulation that, for reasons ofeconomic viability, had the effect of imposing a mora-torium on the construction of nuclear power plants inCalifornia, despite the broad goals and purpose of the1954 Atomic Energy Act to make safe nuclear poweravailable. 461 U.S. at 1732 ("The Court of Appeals isright, however, that the promotion of nuclear poweris not to be accomplished at all costs"). If there wasnot a conflict between federal and state actions inthat case, it is hard to see how there can be one here,where nothing prevents the TVA from complying

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with both its administrative permit requirementsand its obligations under source-state common lawnot to substantially interfere with the public healthand welfare of North Carolinians.

Instead of identifying a conflict, the Court ofAppeals emphasizes its own general policy preferencefor the relative advantages of regulatory expertiseover common-law adjudication in the administrationof complex statutes, and then identifies what itclaims to be the "real question in this case . . .whether individual states will be allowed to supplantthe cooperative federal-state framework thatCongress through the EPA has refined over the manyyears." Pet. App. at 13a (emphasis added). Inmaking the leap from the generalized advantages ofstatistical-based policymaking to its finding ofpreemption, the Court of Appeals leaps over preciselywhat this Court has demanded - that before it isimplied that Congress intended to preempt stateaction, there must be shown to be genuine impossi-bility, not "hypothetical" or "potential" conflicts. Yetit is only hypothetical or potential conflicts that theCourt of Appeals offers. And that is hardly enoughreason to displace the evident disagreement ofCongress, which saw in state actions, includingcommon-law actions, an important tool it wanted topreserve to supplement the minimum federalstandards created by the CAA’s regulatory permitsystem.

This Court, in its recent opinion in Williamson v.Mazda Motor of America, Inc., 562 U.S. __ (2011),reinforced this conclusion when it rejected an impliedpreemption argument that the mere existence of acontrary cost-effectiveness judgment, even by an

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expert agency, signaled an intent to preempt theoperation of state tort law:

To infer from the mere existence of such a cost-effectiveness judgment that the federal agencyintends to bar States from imposing stricterstandards as if they were the maximum stan-dards, eliminating the possibility that the federalagency seeks only to set forth a minimumstandard potentially supplemented through statetort law. We cannot reconcile this consequencewith a statutory saving clause that foresees thelikelihood of a continued meaningful role for statetort law.

562 U.S. at __, slip op. at 11 (emphasis added).

The Court of Appeals finding of preemption in thiscase cannot be squared, in the absence of evidence ofactual conflict or obstacle, with Congress’ thrice-stated intent to preserve the supplemental role ofstate court actions such as that brought by NorthCarolina here.

III. REVIEW IS WARRANTED HEREBECAUSE OF THIS COURT’S GRANTOF CERTIORARI IN AMERICAN ELEC.POWER CO. v. STATE OF CONNECTICUT

Finally, review in this case is especially warrantedin light of this Court’s grant of certiorari in AmericanElectric Power Company Inc., et al. v State ofConnecticut, et al., No. 10-174 (certiorari grantedDecember 6, 2010). The litigation here, and in Amer-ican Electric Power Company, are frequently anderroneously thrown together and critiqued by thosewho see in all common-law actions involving pollu-tion only a "misguided push for judicial regulation"using the "’legal garbage can’ of a tort" (Amicus Brief

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of Law Professor John C. Yoo, et al., in Support ofPetitioner in American Electric Power Company,referencing the North Carolina v. TVA litigation).Yet this Court has always been far more careful inreviewing Congress’s intent as to the relative roles ofadministrative regulation and common-law actions,holding, for example, that Congress in the CleanWater Act did preempt a federal common law ofnuisance to resolve conflicts over interstate waterpollution, Milwaukee v. Illinois, 451 U.S. 304 (1981)("Milwaukee II") but did not preempt in exactlythose same situations the application of source-statenuisance law, International Paper Company v.Ouellette, 479 U.S. 481 (1987).

Without reviewing the Court of Appeals’ decision inthis case, there would be significant confusion nomatter how the Court decides American ElectricPower Company. If the Court were to deny reviewhere, yet affirm the Second Circuit in AmericanElectric Power Company, it would seemingly turn onits head the distinction drawn by this Court inMilwaukee H and Ouellette, questioning the resultsin over twenty years of lower-court caselaw built onthe distinction. Similarly, if the Court were to denyreview here, yet reverse the Second Circuit in Ameri-can Electric Power Company, it would suggest a newblanket approach to preemption, and policy-basedhostility to state common law remedies, at odds withthe core inquiry into congressional intent this Courthas traditionally followed.

The petitiongranted.

March 7, 2011

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CONCLUSION

for writ of certiorari should be

Respectfully submitted,

DONALD T. HORNSTEINVICTOR FLATTMARIA SAVASTA-KENNEDYPATRICK PARENTEAU

Counsel of RecordENVIRONMENTAL AND NATURAL

RESOURCES LAW CLINICVERMONT LAW SCHOOL

164 Chelsea StreetP.O. Box 96South Royalton, VT 05068(802) 831-1627pparenteau@vermontlaw.edu

Attorney for Amici CuriaeEnvironmental andAdministrative LawProfessors