Power company faces N.C.'s nuisance suit

John O'Brien Jul. 14, 2008, 1:48pm


ASHEVILLE, N.C. (Legal Newsline) - The emissions of the largest public power company in the country are being put to the controversial public-nuisance test Monday in a federal court in North Carolina.

A bench trial is under way in a case brought by North Carolina Attorney General Roy Cooper and a group of private law firms against Tennessee Valley Authority that claims the company's coal-fired power plants are polluting North Carolina's air.

Cooper claims pollution from 11 plants in Tennessee, Kentucky and Alabama are emitting large amounts of sulfur dioxide, nitrogen oxides and mercury into the air, and they are being carried to his state.

"TVA's pollutants harm human health, safety, comfort, the environment and the economy, including but not limited to natural resources in North Carolina," says the complaint, filed in Jan. 2006.

"TVA's pollutants also contribute to loss of revenue for the State and a substantial increase in expenditures for the State to combat and remedy the effects of the nuisance, as well as increased costs to the citizens of the State from increased hospital visits and other medical costs and from absence from work."

A federal judge ruled earlier this year that Cooper had the authority to bring the suit. Helping him craft it were Ayres Law Group of Washington, D.C., and Resolution Law Group.

Cooper blames TVA's smokestacks for more than 15,000 illnesses a year, adding it damages forests, lakes and streams.

Cooper wants TVA's emissions to be reduced to a level that would comply with North Carolina law -- the Clean Smokestacks Act, passed in 2002. That law reduced emissions in the state's 14 largest coal-fired power plants.

"The law requires Plaintiff to prove that particular sources of nuisances under source-state law, and Plaintiff acknowledged this obligation in its Complaint by pleading three separate claims - one aimed at TVA's two Alabama plants under Alabama law, one aimed at TVA's two Kentucky plants under Kentucky law, and one aimed at TVA's seven Tennessee plants under Tennessee law," TVA's trial brief says.

"But based on the evidence Plaintiff disclosed during discovery, TVA expects Plaintiff to treat all 11 plants together as if they were governed by a single source of law, thus attempting to recreate a federal common law that has now been displaced by the Clean Air Act."

Plaintiffs have recently come up short in their public nuisance efforts against the former manufacturers of lead paint.

Lead paint was outlawed in 1978, and plaintiffs firm Motley Rice convinced former Rhode Island Attorney General Sheldon Whitehouse to hire it on a contingency fee to bring the first state-backed case over the issue in 1999.

The first trial resulted in a mistrial, the second (filed by current Attorney General Patrick Lynch) in a 2006 verdict against three companies - Sherwin-Williams, Millennium Holdings and NL Industries. It was the longest civil trial in state history.

After the mistrial and while Whitehouse prepared to leave office in 2002, Motley Rice's Jack McConnell, of the firm's Providence office, contributed $1,000 to Lynch's election efforts.

In Lynch's next campaign, McConnell gave him $2,000. In between, in Lynch's non-election year of 2004, McConnell still gave him $2,000.

The Rhode Island Supreme Court overturned the verdict against the three companies on July 1, voting unanimously against the application of a public nuisance claim in a products liability case.

Similar suits have failed in Wisconsin, Missouri, Ohio and New Jersey. The City of Columbus voluntarily dismissed its case after the Rhode Island decision.

From Legal Newsline: Reach John O'Brien by e-mail at john@legalnewsline.com.

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