Q&A from PublicNuisanceWire.com. Interesting reading:
ASHEVILLE, NC — The case of North Carolina v Tennessee Valley Authority is beginning to look more like a soap opera every day. Last month, the state of Alabama joined more than 200 plaintiffs in a case that could end up before the U.S. Supreme Court, according to Richmond-based attorney Trent Taylor. Taylor spoke to Public Nuisance Wire in an exclusive interview.
PNW: What effect does the addition of Alabama have on this case?
TAYLOR:The State of Alabama filed a Motion to Intervene in late June, and it was opposed by the State of North Carolina with a lengthy 20-plus page brief. In essence, the State of Alabama asked to be added as a party to this lawsuit with equal rights to TVA and the State of North Carolina, with full briefing and oral argument privileges. This is despite the fact that the State of Alabama was not a party in the underlying action, and did not seek to intervene at the trial court level. Nevertheless, just over a week ago, the Fourth Circuit granted the State of Alabama’s motion; and while it is not unprecedented for an appellate court to permit a non-party appellate intervener who did not intervene below (especially a government actor), it is still rarely seen. In a scene reminiscent of a legal thriller, a surprise character has entered the scene at the last minute, stage right, attempting to change the direction of the narrative.
PNW: Why did Alabama seek to join the case?
TAYLOR: It stated in its motion that “the district court’s decision results in the extraterritorial application of North Carolina’s law and the displacement of Alabama’s own statutory and public nuisance law [and] Alabama has a keen interest in resisting that encroachment.” This brings to the fore an age-old cleavage that has heretofore not been a central focus of this case — extraterritorial pollution and whether common-law suits are an appropriate strategy to deal with it. I recently discussed this in my article on this case in the Toxics Law Reporter and suggested that the trial court’s decision, if not overturned, could result in an increase of public nuisance suits by one government against another government (whether state, city, county, or municipality). While the application of public nuisance in such a context dates back over a century to the United States Supreme Court case of Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907), it is not one that has been invoked, or challenged, very often.