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"Public Nuisance" Argument Pushes Pollution Debate Into Spotlight

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RALEIGH, N.C. — North Carolina's victory forcing a major utility to control emissions from coal-fired power plants outside the state's borders shows the need for Congress and President-elect Barack Obama's administration to move quickly for a national standard, observers said Wednesday.

The state used a "public nuisance" legal premise to sue the Tennessee Valley Authority and won an order from a federal judge Tuesday to speed up efforts to clean emissions from four TVA plants upwind of North Carolina's scenic western mountains.

Legal experts said the case has implications nationwide as many states struggle to address such emissions and their role in global warming and the health of residents.

Bart Melton, a southeast program analyst at the National Parks Conservation Association, said the ruling opens the door for states to begin pointing fingers at specific utilities _ both outside and inside their borders. He said Congress should provide a nationwide solution, instead of expecting the courts to resolve the disputes on a case-by-case basis.

"Now that it's been shown that (a lawsuit) can work, the tough fix is a flurry of litigation," Melton said. "Hopefully, the more positive result will be more action by Congress."

Sen. Tom Carper, a Delaware Democrat who chairs the Senate Subcommittee on Clean Air and Nuclear Safety, agreed that the ruling had implications for Washington.

"This court ruling shows it is time to revisit the Clean Air Act on both the regulatory and legislative fronts," he said in a statement.

Obama has called for legislation to curb emissions blamed for global warming, but it was not immediately clear how his administration would handle state concerns about cross-border pollution. His nominee to head the U.S. Environmental Protection Agency, chemical engineer Lisa Jackson, attended a Senate hearing Wednesday where she left the door open to using current laws to regulate the gases blamed for global warming.

Dan Riedinger, a spokesman for power industry trade group Edison Electric Institute, said utilities don't foresee many similar lawsuits, since everyone involved in the debate expects more stringent emissions regulations to come from the new administration and Congress.

Riedinger said it would be more efficient for the EPA to handle the issue because it already has the power to force cleaner power plants if they're emitting across borders.

North Carolina tried that before suing TVA, the nation's largest public utility, but its request to the EPA still hasn't been resolved. In his ruling Tuesday, U.S. District Court Judge Lacy Thornburg acknowledged that the public nuisance law isn't well-suited for "implementing the sweeping reforms that North Carolina desires."

In the absence of changes from Capitol Hill or the EPA, experts said North Carolina's victory would add weight to other public nuisance lawsuits filed in a bid to shape clean air policy.

California has two major public-nuisance cases pending: one against auto companies and one against utility companies, targeting both for their alleged roles in global warming.

Ken Alex, senior assistant attorney general in California, called the North Carolina case and opinion "very interesting."

"We think that public-nuisance law is a very good tool in certain types of cases, and will undoubtedly be used in the future," Alex said.

North Carolina complained in its January 2006 lawsuit the TVA wasn't doing enough to control emissions from its 11 coal-fired power plants, creating a public nuisance that sullied its mountains and hastened the deaths of about 100 people each year.

On Tuesday, Thornburg ordered the four plants closest to North Carolina _ three in Tennessee and one in Alabama _ to complete the installation of emissions controls and meet specific emissions caps.

Thornburg denied forcing measures at seven other TVA plants located farther from the state line. TVA officials said Wednesday they were still analyzing the decision and hadn't decided whether to appeal.

"This certainly is a groundbreaking case and one that is important for the health and economy for our state," North Carolina Attorney General Roy Cooper said. "Many people will also view this as a positive step nationally because it holds a public utility accountable for its pollution."

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