TVA must install pollution controls during public nuisance appeal

John O'Brien Aug. 26, 2009, 2:00pm


ASHEVILLE, N.C. (Legal Newsline) - The decision to have Tennessee Valley Authority spend hundreds of millions of dollars in pollution controls at four of its power plants won't be stayed during the company's appeal.

U.S. District Judge Lacy Thornburg also ruled in January that TVA place a cap on its annual emissions. He wrote that three Tennessee plants and one Alabama plant were causing a public nuisance in North Carolina.

North Carolina Attorney General Roy Cooper alleged seven out-of-state TVA plants are emitting large amounts of sulfur dioxide, nitrogen oxide and mercury into the air, and they are being carried to his state.

TVA, the largest public power provider in the country, is appealing Thornburg's ruling to the U.S. Court of Appeals for the Fourth Circuit.

"The Court finds that the installation time lines set forth in the Judgment are reasonable and can be accomplished if TVA continues to follow the clear schedule crafted by the Court as such pertains to each of the power plants identified in the Judgment," Thornburg wrote Aug. 14.

"Simply put, the Court finds the evidence presented at trial supports the conclusion that TVA can install all of the pollution controls required by the Judgment within the time provided.

"TVA's arguments to the contrary in this latest motion for relief are unavailing and are expressly rejected."

Cooper blamed TVA's smokestacks for more than 15,000 illnesses a year, adding they damage forests, lakes and streams. He, the Resolution Group and the Ayres Law Group of Washington, D.C., filed his complaint in Jan. 2006.

The company already planned some of the updates required by Thornburg's decision, but had asked for a stay on those it did not.

TVA argued that its customers would suffer irreparable harm if the stay was not granted and that its appeal presents significant federal and state legal issues likely to be decided in its favor.

Alabama Attorney General Troy King is intervening in the appeal. He called Thornburg's decision "extraterritorial regulation."

"The district court's decision is extraordinary," King's attorneys wrote in July.

"Pursuant to a North Carolina statute expressly directing him to do so, North Carolina's attorney general convinced the district court to enter a sweeping, detailed and demanding injunction that purports to micromanage the operation of a power plant located in Alabama.

"The details of that injunction come straight out of North Carolina's Clean Smokestacks Act, and thus place the burden of North Carolinians' policy choices squarely on the shoulders of Alabamians."

From Legal Newsline: Reach John O'Brien by e-mail at

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