PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
STATE OF NORTH CAROLINA ex rel.
ROY COOPER, Attorney General,
Plaintiff-Appellee,
v.
TENNESSEE VALLEY AUTHORITY,
Defendant-Appellant.
NEW YORK; MARYLAND; SOUTH
CAROLINA; CALIFORNIA; COLORADO; No. 06-2131
CONNECTICUT; DELAWARE; ILLINOIS;
IOWA; MAINE; MASSACHUSETTS;
MISSISSIPPI; NEW HAMPSHIRE; NEW
JERSEY; OHIO; OKLAHOMA; RHODE
ISLAND; VERMONT; WISCONSIN;
WASHINGTON, D.C.; AMERICAN LUNG
ASSOCIATION; AMERICAN THORACIC
SOCIETY,
Amici Supporting Appellee.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(1:06-cv-00020)
Argued: October 31, 2007
Decided: January 31, 2008
Before WILLIAMS, Chief Judge, and NIEMEYER and
SHEDD, Circuit Judges.
2 STATE OF NORTH CAROLINA v. TVA
Affirmed by published opinion. Judge Shedd wrote the opinion, in
which Chief Judge Williams joined. Judge Niemeyer wrote an opin-
ion concurring in part and dissenting in part.
COUNSEL
ARGUED: Edwin W. Small, Assistant General Counsel, Office of
the General Counsel, TENNESSEE VALLEY AUTHORITY, Knox-
ville, Tennessee, for Appellant. Christopher G. Browning, Jr., Solici-
tor General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellee. ON BRIEF: Maureen H.
Dunn, General Counsel, Harriet A. Cooper, Assistant General Coun-
sel, Frank H. Lancaster, Senior Attorney, Maria V. Gillen, Attorney,
Office of the General Counsel, TENNESSEE VALLEY AUTHOR-
ITY, Knoxville, Tennessee, for Appellant. Michael D. Goodstein,
Stacey Myers, RESOLUTION LAW GROUP, P.C., Washington,
D.C.; Richard E. Ayres, AYRES LAW GROUP, Washington, D.C.;
Roy Cooper, Attorney General, James C. Gulick, Senior Deputy
Attorney General, Marc Bernstein, Special Deputy Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee. Andrew Cuomo, Attorney General of the State
of New York, Barbara D. Underwood, Solicitor General, Daniel
Smirlock, Deputy Solicitor General, Michelle Aronowitz, Assistant
Solicitor General, Robert Rosenthal, Assistant Attorney General, J.
Jared Snyder, Assistant Attorney General, New York, New York;
Douglas F. Gansler, Attorney General of the State of Maryland, Susan
F. Martielli, Assistant Attorney General, Kathy M. Kinsey, Assistant
Attorney General, Baltimore, Maryland; Henry McMaster, Attorney
General of the State of South Carolina, Columbia, South Carolina;
Edmund G. Brown, Jr., Attorney General of the State of California,
Sacramento, California; John W. Suthers, Attorney General of the
State of Colorado, Denver, Colorado; Richard Blumenthal, Attorney
General of the State of Connecticut, Hartford, Connecticut; Joseph R.
Biden, III, Attorney General of the State of Delaware, Wilmington,
Delaware; Lisa Madigan, Attorney General of the State of Illinois,
Chicago, Illinois; Thomas J. Miller, Attorney General of the State of
Iowa, Des Moines, Iowa; G. Steven Rowe, Attorney General of the
State of Maine, Augusta, Maine; Martha Coakley, Attorney General
STATE OF NORTH CAROLINA v. TVA 3
of the State of Massachusetts, Boston, Massachusetts; Jim Hood,
Attorney General of the State of Mississippi, Jackson, Mississippi;
Kelly A. Ayotte, Attorney General of the State of New Hampshire,
Concord, New Hampshire; Stuart Rabner, Attorney General of the
State of New Jersey, Trenton, New Jersey; Marc Dann, Attorney Gen-
eral of the State of Ohio, Columbus, Ohio; W. A. Drew Edmondson,
Attorney General of the State of Oklahoma, Oklahoma City, Okla-
homa; Patrick C. Lynch, Attorney General of the State of Rhode
Island, Providence, Rhode Island; William H. Sorrell, Attorney Gen-
eral of the State of Vermont, Montpelier, Vermont; J. B. Van Hollen,
Attorney General of the State of Wisconsin, Madison, Wisconsin;
Linda Singer, Acting Attorney General for the District of Columbia,
Washington, D.C., for Amici States of New York, Maryland, South
Carolina, California, Colorado, Connecticut, Delaware, Illinois, Iowa,
Maine, Massachusetts, Mississippi, New Hampshire, New Jersey,
Ohio, Oklahoma, Rhode Island, Vermont, Wisconsin, and Washing-
ton, D.C., Supporting Appellee. Hope M. Babcock, Senior Attor-
ney/Director, Emma E. Garrison, Staff Attorney, Institute for Public
Representation, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Amici American Lung Association and Ameri-
can Thoracic Society, Supporting Appellee.
OPINION
SHEDD, Circuit Judge:
In 1933, Congress created the Tennessee Valley Authority ("the
TVA") "in the interest of the national defense[,] for agricultural and
industrial development, . . . to improve navigation in the Tennessee
River[,] and to control the destructive flood waters in the Tennessee
River and Mississippi River Basins." 16 U.S.C. § 831. As part of its
mission, the TVA operates coal-fired power plants in Tennessee, Ala-
bama, and Kentucky. The State of North Carolina brought this
common-law nuisance action against the TVA, contending that these
plants emit various pollutants which travel through the atmosphere
into North Carolina, adversely impacting human health and environ-
mental quality. North Carolina seeks an injunction prohibiting the
TVA from operating its plants in a harmful manner and requiring it
to abate the alleged nuisance.
4 STATE OF NORTH CAROLINA v. TVA
The TVA moved to dismiss North Carolina’s suit, arguing that it
is barred by (1) the discretionary function doctrine, (2) the Supremacy
Clause, and (3) the holding of Ferris v. Wilbur, 27 F.2d 262 (4th Cir.
1928). The district court rejected each of these arguments and denied
the motion to dismiss. The district court then certified its decision for
immediate appeal pursuant to 28 U.S.C. § 1292(b), and we accepted
the appeal. The TVA now reasserts the same arguments it raised in
the district court.1 For the reasons set forth below, we affirm.
I
The TVA first argues that this suit is barred by the discretionary
function doctrine. The discretionary function doctrine precludes a suit
in tort against the United States, its agencies, or its officers where (1)
"the challenged conduct involves an element of judgment or choice,"
and (2) "that judgment is of the kind that the discretionary function
exception was designed to shield, i.e., . . . the challenged action is
based on considerations of public policy." Suter v. United States, 441
F.3d 306, 310-11 (4th Cir. 2006) (internal citations omitted). This
exception from suit for discretionary acts generally arises in the con-
text of the Federal Tort Claims Act ("FTCA"), where Congress pro-
vided that the United States’ waiver of sovereign immunity does not
extend to "[a]ny claim . . . based upon the exercise or performance
or the failure to exercise or perform a discretionary function or duty
on the part of a federal agency or an employee of the Government,
whether or not the discretion involved be abused." 28 U.S.C.
§ 2680(a). The TVA, however, recognizes that it does not benefit
from the discretionary function exception embodied in the FTCA
because its sovereign immunity is not waived by the FTCA but by its
own organic act. That is, Congress waived the sovereign immunity
that the TVA would otherwise have possessed by specifically provid-
ing that the TVA may "sue and be sued in its corporate name." 16
U.S.C. § 831c(b). While both parties agree that this "sue-and-be-sued"
clause waives the TVA’s sovereign immunity to some degree, they
dispute the scope of this waiver.
1
Because this appeal raises only legal questions relating to subject-
matter jurisdiction, we review de novo the decision of the district court.
Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005).
STATE OF NORTH CAROLINA v. TVA 5
Congress has waived the sovereign immunity of certain federal
entities "by including in the enabling legislation provisions that they
may sue and be sued." Loeffler v. Frank, 486 U.S. 549, 554 (1988).
In contrast with other waivers of sovereign immunity, "sue-and-be-
sued" waivers "should be liberally construed." Id. Thus, "when Con-
gress establishes such an agency, authorizes it to engage in commer-
cial and business transactions with the public, and permits it to ‘sue
and be sued,’ it cannot be lightly assumed that restrictions on that
authority are to be implied." Id. Instead, for an exception to the "sue-
and-be-sued" authorization to exist, "it must be clearly shown that
certain types of suits are not consistent with the statutory or constitu-
tional scheme, that an implied restriction of the general authority is
necessary to avoid grave interference with the performance of a gov-
ernmental function, or that for other reasons it was plainly the purpose
of Congress to use the ‘sue and be sued’ clause in a narrow sense."
FHA v. Burr, 309 U.S. 242, 245 (1940) (footnote omitted); see also
Loeffler, 486 U.S. at 554; Fed. Deposit Ins. Corp. v. Meyer, 510 U.S.
471, 480 (1994). "Absent such a showing, agencies authorized to ‘sue
and be sued’ are presumed to have fully waived immunity." Meyer,
510 U.S. at 481 (emphasis added). In other words, "it must be pre-
sumed that when Congress launched a governmental agency into the
commercial world and endowed it with authority to ‘sue or be sued,’
that agency is not less amenable to judicial process than a private
enterprise under like circumstances would be." Loeffler, 486 U.S. at
554-55.
Under these principles, the TVA’s "sue-and-be-sued" clause stands
as a broad waiver of sovereign immunity which, absent a showing to
the contrary, would encompass North Carolina’s claims. The TVA,
however, asserts that a discretionary function exception grounded in
the constitutional concept of separation of powers renders this lawsuit
inconsistent with the constitutional scheme. To support this position,
the TVA looks to our holding in McMellon v. United States, 387 F.3d
329 (4th Cir. 2004) (en banc).
In McMellon, we examined the question of whether a discretionary
function exception bars a lawsuit filed against the United States under
the Suits in Admiralty Act ("SIAA"). After noting that the SIAA does
not contain a statutory exception from suit for discretionary functions,
we concluded that such an exception nonetheless exists by virtue of
6 STATE OF NORTH CAROLINA v. TVA
the constitutional doctrine of separation of powers. We based our con-
clusion on the fact that the Constitution does not allow judicial regu-
lation which might "prevent[ ] the Executive Branch from
accomplishing its constitutionally assigned functions." Id. at 341. We
likewise found that under our constitutional system "the Judicial
Branch [may] neither be assigned nor allowed tasks that are more
properly accomplished by other branches." Id. We therefore held that
the courts may not assume the power to regulate, through the medium
of tort liability, the manner in which the Executive Branch exercises
the discretion which the Constitution assigns to it. Id. at 343.
We do not believe that the constitutional concerns underlying our
decision in McMellon are present here. The TVA "is a corporate
entity, separate and distinct from the Federal Government itself."
Pierce v. United States, 314 U.S. 306, 310 (1941). Thus, the TVA
maintains a separate corporate identity, a separate legal staff, and a
separate headquarters. TVA v. EPA, 278 F.3d 1184, 1192-93 (11th
Cir. 2002), vacated in part on other grounds, 336 F.3d 1236 (11th
Cir. 2003). The Attorney General is prohibited from representing the
TVA in a legal proceeding unless expressly requested by the TVA to
do so. Pub. L. No. 98-181, § 1300 (1983), 97 Stat. 1292.2 In addition,
the TVA is removed from centralized control in Washington, enjoys
discretionary ratemaking authority, and is exempt from at least 16
provisions of the Administrative Procedures Act. TVA v. EPA, 278
F.3d at 1192. More important than these structural symbols of inde-
pendence, however, are the marks of independence which Congress
has provided for the TVA. Congress has, for example, exempted the
TVA from suit in the Court of Federal Claims, 28 U.S.C. § 1491(c);
provided that the TVA shall be governed by an independent Board of
Directors, 16 U.S.C. § 831a; exempted the TVA from the civil service
laws, 16 U.S.C. § 831b; exempted the TVA from the purchasing
requirements otherwise applicable to federal entities, 16 U.S.C.
§ 831h(b); and provided the TVA with authority to issue bonds which
are not obligations of the United States, 16 U.S.C. § 831n-4(b). More-
2
The TVA has, in fact, sued the United States on several occasions,
successfully arguing that its separation from the Executive Branch
enables it to sue both the United States and its executive agencies. See,
e.g., TVA v. EPA, 278 F.3d at 1192; TVA v. United States, 51 Fed. Cl.
284 (2001).
STATE OF NORTH CAROLINA v. TVA 7
over, the TVA funds its power-generating programs itself rather than
with congressional appropriations. 16 U.S.C. § 831n-4.
Congress’ statements with regard to the TVA lend support to its
independence. When creating the TVA in 1933, Congress indicated
that it "intend[s] that the corporation shall have much of the essential
freedom and elasticity of a private business corporation." H.R. Rep.
No. 73-130 at 19 (1933). Even more telling, Congress exempted the
TVA from the FTCA, see 28 U.S.C. § 2680(l), because it intended
that legal claims "be exercised against the Tennessee Valley Author-
ity exactly as they could have been exercised against . . . private util-
ity companies." 79 Cong. Rec. 6563-64 (1946) (statement of Sen.
Hill).
This degree of independence which the TVA possesses in large
part alleviates the constitutional concerns which we recognized in
McMellon. A lawsuit against the TVA is not a suit against the United
States itself or one of its agencies subject to the direct executive con-
trol which is granted to the President by Article II of the Constitution.
Rather, a suit against the TVA is against "a governmental agency in[ ]
the commercial world," Loeffler, 486 U.S. at 555, that is governed by
an independent Board of Directors, 16 U.S.C. § 831a(g).3 Because the
TVA is so far removed from the control of the Executive Branch,
operating as the functional equivalent of a private corporation, the
judiciary does not run the same risk of overstepping its bounds and
"prevent[ing] the Executive Branch from accomplishing its constitu-
tionally assigned functions," McMellon, 387 F.3d at 341, that it did
in McMellon.
Even were the TVA more tightly linked with the Executive Branch,
this case would not conflict with the principles recognized in McMel-
3
Although the President appoints the TVA’s Board of Directors (with
the advice and consent of the Senate), as with many independent govern-
ment agencies and corporations, the President’s power of appointment,
standing alone, does not subject the agency to direct presidential control.
See Morrison v. Olson, 487 U.S. 654, 688-691 (1988) (noting certain
independent government agencies which are located within the Executive
Branch and headed by presidential appointees but which are free from
presidential control).
8 STATE OF NORTH CAROLINA v. TVA
lon. In this case, a judicial decision on the lawfulness of the TVA’s
plant emissions does not strip the TVA of its authority to execute its
statutory duties. At most, it could require the TVA to take into
account and to abide by certain air quality standards when operating
its coal-fired power plants. As the district court recognized, "[t]he
Executive’s ability to decide the level of pollutants to emit within the
allowed bounds, how best to address any necessary reduction in pol-
lutants, how to allocate [the] TVA’s funds and other resources . . . and
a myriad of other issues and decisions would remain untouched."
North Carolina v. TVA, 439 F. Supp. 2d 486, 494 (W.D.N.C. 2006).
Similarly, permitting this suit to go forward does not require the Judi-
cial Branch to perform Executive Branch functions or decide issues
it is not equipped to resolve. See McMellon, 387 F.3d at 342 ("[I]f all
executive-branch actions taking place in the maritime arena were sub-
ject to judicial review, the judiciary would be called upon to decide
issues it is not equipped to resolve."). The federal courts have long
resolved nuisance claims, including public nuisance claims, through
state-law equity actions, and they have used this power to regulate
pollution and other noxious emissions. See, e.g., Scribner v. Summers,
84 F.3d 554 (2d Cir. 1996); Wright v. Masonite Corp., 368 F.2d 661
(4th Cir. 1966). This case, then, involves the "overlapping responsi-
bility" between the three branches of government which the Constitu-
tion permits, Mistretta v. United States, 488 U.S. 361, 381 (1989),
rather than intrusion by one branch into another’s functions.
Accordingly, we conclude that this suit does not implicate the
separation-of-powers concerns which led to our decision in McMel-
lon. We therefore hold that the broad waiver of sovereign immunity
effected by the TVA’s "sue-and-be-sued" clause is not restricted by
a discretionary function exception in this case.4
4
Some courts have found that the TVA benefits from a discretionary
function exception when it engages in governmental functions. See, e.g.,
Queen v. TVA, 689 F.2d 80, 85 (6th Cir. 1982) ("[I]n certain limited situ-
ations the TVA is exempt from liability arising out of the exercise of cer-
tain wholly governmental functions, where the TVA acts solely as the
Government’s agent and where the United States itself would not be lia-
ble."). Whether the TVA retains a measure of sovereign immunity when
it engages in a governmental function is not a question we need reach.
In this case, it is clear, for the reasons outlined above, that the TVA’s
STATE OF NORTH CAROLINA v. TVA 9
II
We next turn to the TVA’s contention that the Supremacy Clause
bars this lawsuit from proceeding. By virtue of the Supremacy Clause,
the "activities of the Federal Government are free from regulation by
any state." Mayo v. United States, 319 U.S. 441, 445 (1943). How-
ever, Congress may waive the protections of the Supremacy Clause
and authorize state regulation of federal entities where the waiver is
"clear and unambiguous." Goodyear Atomic Corp. v. Miller, 486 U.S.
174, 180 (1988). At issue here is the waiver of Supremacy Clause
immunity which Congress included in the Clean Air Act ("CAA"), 42
U.S.C. § 7401 et seq.
The CAA provides that federal facilities such as the TVA:
[S]hall be subject to, and comply with, all Federal, State,
interstate, and local requirements, administrative authority,
and process and sanctions respecting the control and abate-
ment of air pollution in the same manner, and to the same
extent as any nongovernmental entity. The preceding sen-
tence shall apply (A) to any requirement whether substan-
tive or procedural (including any recordkeeping or reporting
requirement, any requirement respecting permits and any
other requirement whatsoever) . . . (C) to the exercise of any
Federal, State, or local administrative authority, and (D) to
any process and sanction, whether enforced in Federal,
State, or local courts, or in any other manner. This subsec-
tion shall apply notwithstanding any immunity of such agen-
cies, officers, agents, or employees under any law or rule of
law.
power-generating activities are commercial in nature and thus are not
immune to suit. We note that we are not the first court to reach this con-
clusion. See, e.g., Latch v. TVA, 312 F. Supp. 1069, 1072 (N.D. Miss.
1970) (finding TVA has no sovereign immunity to claim arising from
"acts relating to the distribution and sale of electric power"); see also
Smith v. TVA, 436 F. Supp. 151, 153-54 (E.D. Tenn. 1977); Brewer v.
Sheco Const. Co., 327 F. Supp. 1017, 1019 (W.D. Ky. 1971); Adams v.
TVA, 254 F. Supp. 78, 80 (E.D. Tenn. 1965); Grant v. TVA, 49 F. Supp.
564 (E.D. Tenn. 1942).
10 STATE OF NORTH CAROLINA v. TVA
42 U.S.C. § 7418(a). The TVA argues that this provision of the CAA
waives only some of the protections of the Supremacy Clause in that
it subjects the TVA only to state "requirements" which are based on
objective, quantifiable standards subject to uniform application. The
TVA therefore contends that a state-law nuisance action, not embody-
ing an objective, quantifiable standard, does not fall within Congress’
waiver of Supremacy Clause protection. In essence, the TVA main-
tains that a common-law nuisance action is not a "requirement" within
the meaning of the CAA.
In assessing the TVA’s argument, we look first to "the literal and
plain language of the statute." Markovski v. Gonzales, 486 F.3d 108,
110 (4th Cir. 2007). Because the CAA does not define "requirement,"
we must accord the term its "ordinary, contemporary, common mean-
ing, absent an indication Congress intended [it] to bear some different
import." DIRECTV, Inc. v. Nicholas, 403 F.3d 223, 225 (4th Cir.
2005). In common parlance, "requirement" means "[s]omething that
is required; something obligatory." American Heritage Dictionary
1050 (2d coll. ed. 1991). "Require," in turn, means "[t]o impose an
obligation on; compel." Id. Nothing in the definition of "requirement"
restricts the term’s meaning to objective, quantifiable standards which
must be met. Nor does anything in the CAA indicate that Congress
intended that the term bear the narrow meaning the TVA suggests.
The plain language of the CAA, then, does not support the TVA’s
position.
The TVA’s reading of "requirements" likewise finds no support in
case law, for the Supreme Court has held that state "requirements"
include common-law standards. In Cipollone v. Liggett Group, Inc.,
505 U.S. 504 (1992), the Court considered the reach of a preemption
statute which provided that
No requirement or prohibition based on smoking and health
shall be imposed under State law with respect to the adver-
tising or promotion of any cigarettes the packages of which
are labeled in conformity with the provisions of this Chap-
ter.
15 U.S.C. § 1334(b). The question before the Court was whether this
statute encompassed state common-law claims. In answering this
question, the Court held:
STATE OF NORTH CAROLINA v. TVA 11
The phrase "[n]o requirement or prohibition" sweeps
broadly and suggests no distinction between positive enact-
ments and common law; to the contrary, those words easily
encompass obligations that take the form of common-law
rules. [State] regulation can be as effectively exerted
through an award of damages as through some form of pre-
ventive relief. The obligation to pay compensation can be,
indeed is designed to be, a potent method of governing con-
duct and controlling policy.
Cipollone, 505 U.S. at 521 (plurality opinion) (internal citations and
quotations omitted).5 The Court therefore rejected the notion that a
common-law tort action is not a "requirement" of state law while not-
ing that a contrary interpretation would be "at odds both with the
plain words" of the statute and "with the general understanding of
common-law damages actions." Id.
Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), is similar. There, the
Court relied on Cipollone when determining the meaning of another
preemption statute which provided that "no State . . . may establish
or continue in effect . . . any requirement" which differs from the fed-
eral requirement. Id. at 503 (citing 21 U.S.C. § 360k(a)). A majority
of the Court held that a state common-law tort action may impose a
"requirement" within the meaning of § 360k(a).6 Justice Breyer noted
that "[o]ne can reasonably read the word ‘requirement’ as including
the legal requirements that grow out of the application, in particular
circumstances, of a State’s tort law." Id. at 504. Similarly, Justice
O’Connor wrote that "[S]tate common-law damages actions operate
to require manufacturers to comply with common-law duties." Id. at
510.
5
The fact that North Carolina seeks to hold the TVA liable in tort by
seeking injunctive relief rather than damages does not lessen Cipollone’s
relevance here. Cipollone itself noted that a state requirement can be
manifested in damages and "preventive relief."
6
The Medtronic decision was the product of a fractured Court. None-
theless, a majority consisting of Chief Justice Rehnquist and Justices
O’Connor, Scalia, Thomas, and Breyer found that the statute’s reference
to "requirement" included state common-law actions. See Duvall v.
Bristol-Meyers-Squibb Co., 103 F.3d 324, 329 (4th Cir. 1996) (noting
majority of fractured Medtronic Court agreed on this point).
12 STATE OF NORTH CAROLINA v. TVA
In this case, the phrases "all requirements" and "any requirement"
sweep at least as broadly as the "no requirement" and "any require-
ment" language at issue in Cipollone and Medtronic.7 The Cipollone
and Medtronic Courts’ expansive construction of "requirement" and
their unequivocal holdings do not support the TVA’s preferred nar-
row reading of the term, and we see no basis for adopting a more lim-
ited definition here.8
In sum, the plain meaning of "requirement" and the Supreme
Court’s broad interpretation of the term foreclose the TVA’s argu-
ment that the CAA does not mandate compliance with state "require-
ments" enforced through a common-law tort suit. This being the case,
we conclude that this lawsuit falls within Congress’ waiver of the
TVA’s Supremacy Clause protections.
III
Finally, we turn to the TVA’s contention that our decision in Ferris
7
We note that Congress used the term "all" in the CAA to express its
intent that the CAA’s waiver provisions be interpreted broadly. After the
Supreme Court interpreted the CAA’s reference to "requirement" to
include substantive but not procedural requirements, see Hancock v.
Train, 426 U.S. 167 (1976), Congress immediately responded by amend-
ing the CAA to refer to "all requirements" in order "to express, with suf-
ficient clarity, the . . . desire to subject Federal facilities to all Federal,
State, and local requirements — procedural, substantive, or otherwise —
process, and sanctions," H.R. Rep. No. 95-294 at 199 (1977). Congress
clearly had both Hancock and the Supremacy Clause in mind when
enacting this amendment. See id. at 198-99 (amendments "intended to
overturn the Hancock case" and to overcome "[c]onstitutional arguments
regarding the supremacy clause").
8
In both Cipollone and Medtronic, the Court operated under a pre-
sumption that favored a narrow reading of the term "requirement." See
Medtronic, 518 U.S. at 485 (presuming "that Congress does not cava-
lierly pre-empt state-law causes of action"); Cipollone, 505 U.S. at 522
(noting presumption against preemption). Despite this presumption, the
Court interpreted "requirement" broadly to include state-law tort claims.
The absence of a narrowing presumption in this case seems to us to indi-
cate that "requirement" retains at least the breadth of meaning ascribed
to it in Cipollone and Medtronic.
STATE OF NORTH CAROLINA v. TVA 13
v. Wilbur, 27 F.2d 262 (4th Cir. 1928), bars North Carolina’s cause
of action. In Ferris, a private citizen sued the Secretary of the Navy
in nuisance, seeking an injunction against the storage of weapons at
a naval facility. We held that the suit must be dismissed because the
"use of government property [had been] authorized by Congress and
[lay] within the discretion of the executive." Id. at 264. We noted that
a contrary holding would permit "the judicial department to interfere
with the reasonable discretion of the executive." Id.
This cited language amply demonstrates that Ferris was an early
case applying the discretionary function doctrine. Further, because
there was no statutory discretionary function exception at issue in
Ferris, our ruling necessarily rested on the constitutional concept of
separation of powers. See id. (permitting suit to go forward "would
be contrary to our theory of government"). As we have already con-
cluded, this concept does not preclude North Carolina’s suit against
the TVA. Ferris does nothing to change this conclusion. Ferris was
a suit against the Secretary of the Navy, an executive official under
the direct authority of the President. As a result, Ferris raised many
of the same concerns we recognized in McMellon but which are not
present in this case against the TVA, an independent governmental
entity. We therefore find Ferris to be inapposite and hold that it pre-
sents no bar to North Carolina’s lawsuit.
IV
Based on the foregoing, we conclude that none of the arguments
raised by the TVA prevents this suit from proceeding. Accordingly,
we affirm the denial of the TVA’s motion to dismiss.
AFFIRMED
NIEMEYER, Circuit Judge, concurring in part and dissenting in part:
In this case, the State of North Carolina sues the Tennessee Valley
Authority ("TVA") under the North Carolina common law of nui-
sance to enjoin the way that the TVA operates its coal-fired power
plants in other States, namely Tennessee, Alabama, and Kentucky.
North Carolina alleges that the lawful emissions from the TVA’s
14 STATE OF NORTH CAROLINA v. TVA
power plants in other States travel downwind and reach North Caro-
lina airspace, where they damage human health and the environment
in North Carolina. Even though such emissions are regulated by and
in compliance with the federal Clean Air Act and State law at the
location of the plants, North Carolina contends that the emissions,
whether permitted under applicable statutory laws, nonetheless create
a public nuisance under North Carolina common law.
The threshold question presented to us is whether the TVA, a fed-
eral agency, is immune from such a suit. Arguing that it is not, North
Carolina points to waivers of immunity contained in the TVA Act, 16
U.S.C. § 831c, which provides that the TVA "may sue and be sued
in its corporate name," and in the Clean Air Act, 42 U.S.C. § 7418(a),
which provides that every agency of the federal government is subject
to and must comply with "all Federal, State, interstate, and local
requirements, administrative authority, and process and sanctions
respecting the control and abatement of air pollution in the same
manner, and to the same extent as any nongovernmental entity."
(Emphasis added). The majority concludes that North Carolina may
proceed under either waiver, as either is sufficiently broad to autho-
rize North Carolina’s suit against the TVA. While I agree that the lan-
guage of both statutes is sufficiently broad to authorize the district
court to consider the North Carolina suit on its merits, I conclude that
16 U.S.C. § 831c must be read in light of the Constitution’s separa-
tion of powers doctrine, which precludes a suit challenging a govern-
mental agency’s exercise of its discretionary functions. See United
States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Air-
lines), 467 U.S. 797 (1984); McMellon v. United States, 387 F.3d 329
(4th Cir. 2004 (en banc), cert. denied, 544 U.S. 974 (2005).
The TVA was created in 1933, during the Depression, as a federal
agency to implement major national programs and policies. And as
the agency created to carry out the important work of the federal gov-
ernment that transcends any individual State’s interests, it is constitu-
tionally protected from State suits initiated by a State disagreeing with
congressional programs and policies. In connection with the particular
issues raised in this case, the TVA was authorized by Congress to
employ available technology for the generation of power, including
the very coal-fired generators that North Carolina complains about in
this action. For decades, these generators have provided energy to a
STATE OF NORTH CAROLINA v. TVA 15
broad, multistate area of the country and, to be sure, have produced
emissions that tend to pollute. But the emissions were a tradeoff
inherent in the project created by Congress, and Congress made the
governmental choice of providing the benefits given by the TVA at
the expense of some clean air, even if clean air was an important pol-
icy of any given State. See Dalehite v. United States, 346 U.S. 15
(1953), affirming, In re Texas City Disaster Litigation, 197 F.2d 771
(5th Cir. 1952) (en banc) (finding the TVA immune from suit over an
explosion of ammonium nitrate fertilizer being shipped during World
War II, based on the fact that the tortious conduct involved decisions
balancing safety risks against cost and production schedule benefits
of expediting manufacturing and shipping to accomplish foreign aid
goals). If the old technology impliedly authorized by Congress from
the beginning of the TVA can be updated or replaced to provide less
pollution, the decision would have to be a federal decision based on
a number of discretionary factors balancing the environmental risks
with the economic viability of the program. But it cannot be for any
one State to dictate to Congress or an agency that Congress creates
how it must carry out its discretionary functions. Discretionary gov-
ernmental decisions are protected from State intervention by the Con-
stitution through the doctrine of separation of powers and the
Supremacy Clause.
Against this incontrovertible background, I cannot conclude that in
authorizing the TVA "to sue and be sued," Congress intended to trav-
erse separation of powers principles and authorize a State suit against
the federal agency questioning the fundamental decisions of the fed-
eral government to create the TVA and build coal plants to provide
energy and thereby inherently authorize some emissions that are
within federal and state regulatory standards. Such a conclusion tends
to stand the federal structure on its head, permitting States to disagree
with federal policies and dismember projects undertaken by the fed-
eral government in accordance with federal authority. Allowing such
a suit without an explicit waiver of sovereign immunity with respect
to discretionary functions is no different than subjecting the federal
government to suits in other analogous contexts — which we have
recognized is prohibited — such as suits challenging the decision to
build a dam across a navigable waterway, or claiming damage caused
by the government’s decision to change the course of the Missouri
River, or claiming damages caused by the federal government in its
16 STATE OF NORTH CAROLINA v. TVA
search for illegal drugs. See McMellon v. United States, 387 F.3d 329,
342 (4th Cir. 2004) (en banc), cert. denied, 544 U.S. 974 (2005). In
McMellon we held that "the discretionary function exception
embodies separation-of-powers principles that are important enough
to require courts to apply a discretionary function exception to stat-
utes that are silent on the issue." Id. at 344; see also Tiffany v. United
States, 931 F.2d 271, 276-77 (4th Cir. 1991) (same); Duke Power Co.
v. Greenwood County, 91 F.2d 665, 674 (4th Cir. 1937), aff’d, 302
U.S. 485 (1938); Ferris v. Wilbur, 27 F.2d 262 (4th Cir. 1928).
For these reasons, I conclude that our decisions in McMellon and
the other similar cases apply, precluding our finding that a federal
statute authorizing the TVA to be sued but remaining silent on
whether it could be sued for discretionary functions should amount to
a waiver of immunity for making discretionary decisions.
The Clean Air Act, 42 U.S.C. § 7401 et seq., however, presents a
different question inasmuch as it is a competing federal governmental
policy that directly implicates the emissions from TVA’s coal-fired
plants. In that Act, Congress did subject the TVA and other federal
agencies to suits in the limited circumstance where the federal agency
fails to meet federal or State "requirements . . . respecting the control
and abatement of air pollution." See 42 U.S.C. § 7418(a). I agree with
the majority that "requirements" cannot be cabined to mean objective,
quantifiable State standards, as urged by the TVA. But the waiver is
nonetheless limited to violations of State requirements "respecting the
control and abatement of air pollution." Id. (Emphasis added). We do
not decide now whether North Carolina common law creates such a
requirement, and I agree that we should remand this case to the dis-
trict court to determine, under North Carolina common law, whether
that law has defined a tort imposing a "requirement respecting the
control and abatement of air pollution." If the common law does, then
the suit for violation of that law is authorized by the waiver contained
in § 7418(a) of the Clean Air Act, even if the emissions are the prod-
uct of a discretionary function.
Accordingly, I concur in the judgment but dissent from the ratio-
nale supporting that judgment to the extent it is inconsistent with what
I have stated in this separate opinion.