TVA Ordered to Install Controls in North Carolina’s Public Nuisance Suit

            Following a twelve-day bench trial in the U.S. District Court for the Western District of North Carolina, U.S. District Judge Lacy H. Thornburg found that nitrogen oxides (NO_x), sulfur dioxide (SO₂) and mercury emissions from 4 TVA plants located within 100 miles of North Carolina’s border constituted a public nuisance and ordered TVA to install emission controls.  NC v. TVA, No. 1:06-cv-20 (W.D.N.C. Jan. 13, 2009).  The decision is significant because it is the first trial court decision in a common-law public nuisance action by a state based upon environmental concerns in the state allegedly caused by emissions from power plants in other states.

            At issue were NO_x, SO₂, and mercury emissions from 11 TVA coal-fired power plants, 7 of which are in Tennessee , 2 in Kentucky , and 2 in Alabama.  Applying the law of the source states, the district court imposed an injunction upon TVA requiring the installation and continual, year-round use of pollution control technologies with respect to 4 plants located within 100 miles of North Carolina’s western border.  The district court denied injunctive relief as to the other 7 plants, all of which were located more than 100 miles from North Carolina, finding there was insufficient evidence that emissions from those plants were having an unreasonable impact on North Carolina’s citizens or significantly interfering with North Carolina’s air quality.

            Although the district court issued injunctive relief as to the four 100-mile plants, the district court acknowledged that public nuisance was not the “remedy of choice” and that interstate air pollution concerns are generally resolved by the U.S. Environmental Protection Agency under the Clean Air Act.  The district court explained that public nuisance principles were “less well-adapted than administrative relief to the task of implementing the sweeping reforms that North Carolina desires.”  Recognizing that a system-wide cap on TVA was both more efficient from a business standpoint and also more effective at diminishing overall pollution, the district court stated that the elements of public nuisance, including strict requirements as to both causation and unreasonableness of the harm, did not allow such a cap.

            In support its award of injunctive relief, the district court found that NO_x and SO₂ in the atmosphere form the pollutants PM_2.5 and ozone, both of which have significant negative impacts on human health and the environment.  The district court also found that emissions reductions in a particular state have the most benefit within that state, emissions from a source located outside of state can still have significant impacts on that state’s air quality.  In the case of the TVA plants, the district court found that the four 100-mile plants caused annual average PM_2.5 concentrations to increase by 0.4-0.5 µg/m³ in western North Carolina and 0.3-0.4 µg/m³ in other parts of North Carolina.  The district court also found that the 100-mile plants contributed 4-8 parts per billion (ppb) to peak 8-hour ozone concentrations in western North Carolina and 2-4 ppb to other parts of North Carolina.

            The district court further found that air pollution control technologies were available, namely scrubbers for SO₂ and selective catalytic reduction (SCRs) or selective non-catalytic reduction (SNCRs) for NO_x, and that together SCRs and scrubbers also remove mercury.  Although the district court found that pollution controls at the four 100-mile plants would cost in excess of $1 billion, the district court concluded that the controls were warranted and that it was “financially feasible” for TVA to bear the cost of installation, maintenance, and year-round operation of the available technologies.  Agreeing with North Carolina’s expert, the district court found that TVA must meet timelines of 21 months and 27 months for SCRs and scrubbers, respectively.

 

            Concluding that the uncontrolled emissions for the four 100-mile power plants was a public nuisance to the citizens of North Carolina, the district court issued an injunction requiring prompt installation and year-round usage of appropriate pollution control technologies at the four 100-mile plants.  The district court faulted TVA for “fail[ing] to speedily install readily available pollution control technology,” calling such conduct “unreasonable” under the circumstances.    For additional information concerning North Carolina’s public nuisance lawsuit against TVA, contact Gale Lea Rubrecht at galelea@jacksonkelly.com or 304-340-1200

        This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.