Public Nuisance Case Bites The Dust

This week’s argument in American Electric Power v. Connecticut, a high-profile climate change case at the Supreme Court on whether federal common law public nuisance claims can be used to reduce emissions from power plants, overshadowed developments in a related case that now looks to be over.

Last week, as part of the massive settlement between EPA and the Tennessee Valley Authority over emissions from the latter’s plants, North Carolina agreed to end its public nuisance claim against TVA, a spokeswoman for North Carolina Attorney General Roy Cooper confirmed.

A petition had been filed in the Supreme Court after the 4th U.S. Circuit Court of Appeals ruled in favor of TVA.

“We have not notified the Supreme Court yet,” Cooper’s spokeswoman said in an email. ” Our agreement with TVA provides that dismissal of the cert petition will only occur after a consent decree is entered by the federal district court.  That will not occur for at least 30 days.”

With that case now almost over, there is apparently only one other case on the issue still alive apart from American Electric Power.

That would be a case out of the 9th Circuit called Kivalina v. ExxonMobil, which has been stayed pending the resolution of the Supreme Court case.