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North Carolina v. Tennessee Valley Auth.

ELR Citation: 38 ELR 20037
Nos. No. 06-2131, (4th Cir., 01/31/2008) motion to dismiss denied

The Fourth Circuit denied motions to dismiss North Carolina's common-law nuisance action against the Tennessee Valley Authority (TVA) alleging that its coal plants emit various pollutants that travel through the atmosphere into the state, thereby adversely impacting human health and environmental quality. The broad waiver of sovereign immunity effected by the "sue-and-be-sued" clause contained in the agency's organic act is not restricted by a discretionary function exception in this case. Because the TVA is a corporate entity, separate and distinct from the federal government, the case does not implicate the separation-of-powers concerns found in other similar situations. This lawsuit also falls within Congress' waiver of the Supremacy Clause protections in the Clean Air Act (CAA). The court rejected the TVA's argument that the CAA does not mandate compliance with state "requirements" enforced through a common-law tort suit.