Federal judge sides with AG Cooper in pollution fight

John O'Brien Jan. 15, 2009, 3:59pm


ASHEVILLE, N.C. (Legal Newsline) - Federally owned power provider Tennessee Valley Authority's emissions are crossing state lines and causing a public nuisance in North Carolina, a federal judge recently ruled.

U.S. District Judge Lacy Thornburg sided with North Carolina Attorney General Roy Cooper Tuesday, deciding that three Tennessee plants were damaging North Carolina's environment. She ordered the company to spend hundreds of millions of dollars installing pollution controls and placed a cap on its annual emissions.

TVA already planned to install many of the pollution controls.

"Nonetheless, the vast extent of the harms caused in North Carolina by the secondary pollutants emitted by these plants outweighs any utility that may exist from leaving their pollution untreated," Thornburg said.

"As with the Widows Creek plant in Alabama, TVA's failure to speedily install readily available pollution control technology is not, and has not been, reasonable conduct under the circumstances."

Cooper alleged seven TVA plants 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 last 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.

Plaintiffs had 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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