Alabama sides with TVA in pollution nuisance suit
Sixteen states are backing the North Carolina Attorney General in a public nuisance lawsuit against the Tennessee Valley Authority over pollution from its coal-fired power plants, but Alabama's not one of them.
Alabama Attorney General Troy King (R) has joined with industrial interests to take TVA's side in the company's appeal of a U.S. District Court decision ordering four TVA plants -- one in Alabama and three in neighboring Tennessee -- to curb their air emissions, LegalNewsline.com reports:
He called U.S. District Judge Lacy Thornburg's decision "extraterritorial regulation."
"The district court's decision is extraordinary," King's attorneys wrote in July.
The case targeting emissions from the federally-overseen TVA was originally brought in 2006 by N.C. Attorney General Roy Cooper (D). North Carolina sought better pollution controls on 11 TVA plants, arguing that the emission reductions would dramatically reduce illnesses and deaths as well as damage to his state's forests, lakes and streams.
The states siding with Cooper in the appeal are California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New Mexico, New York, Oklahoma, Rhode Island and Vermont. They want the ability to bring public nuisance cases of their own, arguing that they can't improve their states' air quality by targeting only in-state pollution sources. To date, eight of those states are suing six power companies over pollution from coal-fired plants.
In his original decision in the TVA case, U.S. District Court Judge Lacy Thornburg didn't order all 11 targeted plants to take action, reasoning that seven were too far from North Carolina to significantly impact its air quality. But he did order better pollution controls at four TVA facilities: Widows Creek in northeastern Alabama as well as Bull Run near Oak Ridge, Tenn.; John Sevier near Rogersville, Tenn.; and the Kingston plant in eastern Tennessee' s Roane County, the site of the disastrous coal ash spill in December 2008. The upgrades are expected to cost TVA tens of millions of dollars.
TVA asked the court for extra time to deal with the pollution, calling the brisk timeline imposed by Thornburg a "manifest injustice" and a "fiscal problem," but the judge ordered the cleanup to proceed. TVA appealed to the U.S. Court of Appeals for the Fourth Circuit based in Richmond, Va.
Last June, Alabama filed a motion to intervene, essentially asking to be added as a party to the lawsuit with rights equal to TVA's and North Carolina's. The Fourth Circuit granted Alabama's motion last July -- a relatively rare move since Alabama was not part of the case before it reached the appellate level.
TVA is also getting support from the U.S. Chamber of Commerce along with other industry organizations including the National Association of Manufacturers, the American Petroleum Institute and the American Forest & Paper Association. Another organization taking TVA's side is the Public Nuisance Fairness Coalition, which includes industry associations representing insurers, pharmaceutical companies and paint manufacturers opposed to what they call the "growing misuse" of such lawsuits, which are increasingly being used to target environmental hazards.
In documents submitted to the court, King argues that Cooper was acting pursuant to the N.C. Clean Smokestacks Act, a 2002 state law requiring power companies to cut their smog- and haze-forming emissions by about three-quarters over the next decade. King accuses Cooper of trying to "micromanage" an Alabama power plant, an action that would "place the burden of North Carolinians' policy choices squarely on the shoulders of Alabamians," according to LegalNewsline.com.
In defending Widows Creek, King is taking the side of one of his state's biggest polluters. Located near Stevenson, Ala., the plant currently releases over 11 million tons of carbon dioxide annually, according to Carbon Monitoring for Action. It's also a major emitter of toxic air pollution, releasing 2.3 million pounds of toxic emissions in 2008 alone, according to the Environmental Protection Agency's Toxics Release Inventory.
King has gotten into trouble in the past for his cozy relationship with another of his state's electric utilities: In 2007, the Birmingham News reported that King and a group from his church had a year earlier accepted free tickets, food and skybox seats for an Atlanta Braves baseball game from Alabama Power, a subsidiary of the Atlanta-based Southern Company. The newspaper questioned whether that was appropriate given that King is responsible for representing the utility's customers before the Alabama Public Service Commission. He later reimbursed Alabama Power for his family's food but denied any wrongdoing.
In 2006, the same year he enjoyed Alabama Power's hospitality at the baseball game, King was up for re-election. During that electoral cycle, Alabama Power donated $10,500 to his campaign, according to FollowtheMoney.org. In that same period, the company contributed a total of $465,250 to all state-level candidates in Alabama, including $15,000 to Gov. Bob Riley (R) and $10,000 to Lieutenant Gov. Jim Folsom Jr. (D).
The Southern Company along with TVA and three other large utilities -- American Electric Power of Ohio, Xcel Energy of Minnesota and Cinergy, since purchased by North Carolina-based Duke Energy -- were the targets of another nuisance lawsuit filed in 2004 by eight states and New York City seeking reductions in the utilities' carbon dioxide emissions.
A federal District Court in New York dismissed the case in 2005 on the grounds that the claim presented a "political question" more appropriately addressed by another branch of government. But last year the 2nd Circuit Court of Appeals overturned that decision and sent the case back to the lower court for further consideration.
Sue is the editorial director of Facing South and the Institute for Southern Studies.