The claim, buried in the dry prose of a lawsuit, is in-your-face aggressive: the Tennessee Valley Authority prematurely kills N.C. residents and sickens thousands a year.
Pollution drifting from its coal-fired power plants, N.C. Attorney General Roy Cooper says, makes the nation's largest public power company a public nuisance. Cooper gets his chance to prove it today in a federal court in Asheville.
The unusual case has multimillion-dollar implications for both the state and TVA. Its outcome, say lawyers not connected to the case, could influence other interstate disputes over air and water pollution.
Cooper wants TVA to install pollution controls similar to those North Carolina required of Duke Energy and Progress Energy in 2002. The estimated cost to TVA: $516 million a year.
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Reducing wind-blown pollutants from TVA plants in Tennessee, Alabama and Kentucky would prevent 99 premature deaths, 19,000 asthma attacks and 2,300 lost school days a year in North Carolina, the state says in court filings. Each year of delay, an expert witness is expected to testify, costs the state and its residents $672 million in health costs.
TVA plants cause environmental damage, the state says, including lost visibility and acidic streams in Great Smoky Mountains National Park.
TVA says it has little effect on North Carolina and obeys environmental laws.
Computer models show TVA's impact here is much smaller than those of the N.C. utilities, it says in court documents, “and indeed smaller than the air quality impacts North Carolina sources export to the state's neighbors.”
The trial is expected to take three weeks. It has already cost North Carolina $5.2 million for experts, studies and legal fees, not counting staff time.
An appeals court in January threw out TVA's claim that, as a federally created entity, it could not be sued by the state. U.S. District Judge Lacy Thornburg, a former N.C. attorney general who will hear the case, denied TVA's motion to decide it before trial.
It's no surprise that the two sides paint widely different pictures of power-plant emissions, amounting to hundreds of thousands of tons a year, in North Carolina and in TVA's territory.
The dispute focuses on the plants' release of nitrogen oxides and sulfur dioxide that form tiny particles in the air.
The particles reflect sunlight, blanketing the Southern Appalachians in white haze. They also can lodge deeply in lungs and have been linked to premature death, asthma, and heart and lung problems.
Tennessee, where most of TVA's plants operate, is a major source of fine-particle pollution in Western North Carolina, a 2004 state study found. Particles traced to that state, for example, were a culprit in 19 percent of the high-pollution days in Catawba County.
But TVA's experts say its plants account for no more than 2.6 percent of the fine particles in the N.C. counties, including Mecklenburg, where overall pollution is worst. TVA says it also plays a small role in forming North Carolina's ozone, an irritating gas that smothers urban areas.
TVA accuses the state of a double-standard, saying Duke and Progress emitted 38 percent more sulfur dioxide per unit of electricity from 2005 to 2007 than TVA. North Carolina claims TVA released sulfur dioxide and nitrogen oxides in 2005 at a rate three times higher than N.C. law allows.
All three utilities have been forced to invest heavily in pollution controls in recent years because of federal laws and, in North Carolina, the 2002 Clean Smokestacks Act.
North Carolina wants TVA to cut its emissions to the level N.C. utilities must meet by 2013. TVA says it plans to spend $1 billion over the next two years to improve plants closest to North Carolina, and at least $3 billion after 2010.
“We have one of the most aggressive clean-air programs in the country,” said utility spokesman John Moulton. “We've reduced emissions, certainly more than the North Carolina utilities since the Clean Smokestacks Act.”
J.B. Kelly, Cooper's general counsel, said North Carolina wants an enforceable plan for TVA reductions.
“While TVA's current plan for upgrades by 2013 may provide some benefits, it is only that – a current plan,” Kelly said by e-mail. “It may not be tomorrow's plan. It is far different than the plans the TVA had before the lawsuit was filed.”
Not the first time
The lawsuit isn't Cooper's first crack at reining in pollution from neighboring states.
The Environmental Protection Agency denied his 2004 request for new pollution limits on 13 states, including South Carolina and TVA's territory. Cooper has appealed.
Raleigh attorney Alan McConnell, who represents industries on clean-air issues, said the public-nuisance claim against TVA is highly unusual. Such suits allow the state to convince a court that a nuisance exists based on local factors and emotion, he said, without considering science-based standards of clean-air law.
“Taken to its illogical extreme, any facility that emits air pollution without installing ‘state of the art' controls, even though in compliance with state and federal laws, could be deemed a public nuisance.”
But Ryke Longest, director of the Environmental Law and Policy Clinic at Duke University's law school, said courts have long upheld the right of states to protect their residents and environment.
“By standing up to protect the public, Mr. Cooper has shown leadership whether this case is ultimately won or lost,” said Longest, a former member of Cooper's staff. “As an advocate, the only case you really lose is the one you never try.”