N.C. AG settles public nuisance case against TVA

Bryan Cohen Apr. 14, 2011, 7:24pm


ASHEVILLE, N.C. (Legal Newsline) - North Carolina Attorney General Roy Cooper announced a settlement on Thursday with the Tennessee Valley Authority to reduce emissions from its coal-fired plants and to pay the state $11.2 million.

Cooper was successful in winning clean-up of all of the TVA's coal-fired plants, which was the goal of Cooper's lawsuit against TVA in 2006. The settlement requires that pollution be reduced in more than the four plants a judge had ordered fixed, although that order was overturned by a federal appeals court.

The four plants closest to North Carolina will be the first to be shut down or controlled.

"North Carolina businesses will benefit with lower health care costs and more tourism dollars, and all of us benefit from better health," Cooper said. "This agreement means our air will be more clear and our waters more clean. The settlement is a remarkable accomplishment and we are pleased that everyone involved could resolve it this way."

The settlement seeks to dramatically change the way TVA's coal-fired units operate and will close down many uncontrolled units, especially those close to the North Carolina border, Cooper says. Emissions at the TVA units will be reduced by retiring at least 18 of its 59 coal units and installing and continuously running emission-control equipment on nearly all the remaining units.

The TVA will also pay $11.2 million to North Carolina over the next five years to be used for electricity demand reduction and energy efficiency programs.

Cooper filed the suit on behalf of North Carolina after nitrogen oxide and sulfur dioxide emissions from the plants were allegedly linked to an increased incidence of asthma, chronic bronchitis and premature mortality in the state.

"Pollution ignores state boundaries, so we all have to do our part to make sure the air is clean," Cooper said. "This agreement is a victory for all of North Carolina."

Cooper was deciding if he should appeal the decision of the U.S. Court of Appeals for the Fourth Circuit to the U.S. Supreme Court.

The Fourth Circuit's decision, written by Judge Harvie Wilkinson, said the cost of Cooper's success would have been in the billions of dollars. TVA's customers would have surely picked up some of the cost, Wilkinson added.

"The district court's well-meaning attempt to reduce air pollution cannot alter the fact that its decision threatens to scuttle the extensive system of anti-pollution mandates that promote clean air in this country," Wilkinson wrote.

"If courts across the nation were to use the vagaries of public nuisance doctrine to overturn the carefully enacted rules governing airborne emissions, it would be increasingly difficult for anyone to determine what standards govern.

"Energy policy cannot be set, and the environment cannot prosper, in this way."

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