On January 13, 2009, Judge Lacy Thornburg of the District Court for the Western District of North Carolina issued a major decision in case of North Carolina v. TVA. When filed, this case was seen as another chapter in the on-going battle between downwind and upwind states over cross-border pollution.
However, the decision and implications are somewhat surprising. The Court declared that emissions from four of eleven TVA power plants in upwind states created a public nuisance in the State of North Carolina. Even though these sources apparently comply with environmental permits and regulations, the Court ordered hundreds of millions of dollars in new pollution control equipment on those plants.
Downwind states suing upwind states over coal power plant pollution is nothing new. The Northeastern and Mid-Atlantic States have sued Midwestern and Southern States over pollution under a number of theories.
- They successfully participated in New Source Review enforcement cases with U.S. EPA.
- They filed Section 126 petitions under the Clean Air Act. Those petitions were later resolved by U.S. EPA by creating the Clean Air Interstate Rule (CAIR)- a cap and trade pollution control program.
- They have sought new federal legislation tightening emission standards on coal-fired power plants
What makes this suit so different is that the State of North Carolina went outside the typical Clean Air Act tool box in asserting its claims. Instead the State relied upon common law theories. The decision will certainly bring a waive of new rounds of litigation. Especially with the remand of CAIR after the successful challenge by North Carolina.
Here are some of the significant implications of this decision.
1. The Court found that significant health effects occur as a result of exposure to pollution at levels even below the National Ambient Air Quality Standards (NAAQS) for PM 2.5 and Ozone. The Courts said:
"After reviewing the totality of evidence, the Court is convinced that exposure to PM 2.5-even at or below the NAAQS of 15 ug/m3- results in adverse cardiopulmonary effects, including increased or exacerbated asthma and chronic bronchitis…these negative but non-fatal health effects result in numerous social and economic harms to North Carolinians, including lost school and work days…"
2. The Court found that sources in upwind states can still have significant impacts on a downwind state’s air quality. However, in this case, the Court drew the line at distance of 100 miles. TVA plants within 100 miles (4 plants) were deemed a nuisance and plants outside 100 miles (7 plants) were not.
3. The Court created a new definition of “significant contribution.” TVA plants that were contributing 3% of the emission responsible for PM 2.5 pollution in North Carolina and roughly 5% of the ozone problem were deemed to significantly contributing. On that basis, these plants (ones roughly within 100 miles) were deemed a nuisance. Sources that contributed less than 1% were deemed not a nuisance.
4. The Court required installation of SCRs and scrubbers on a number of units because those units were contributing to the nuisance.
5. Even though these plants were apparently in compliance with all federal and state environmental permits and regulations, they will be putting on additional controls.
6. The Court included emission rates for each plant in a spreadsheet in the opinion. However, the decision is somewhat vague as to whether these are simply expected emissions post controls or in fact legally enforceable limits.
7. From a legal perspective, I found it interesting that a federal judge in North Carolina found sources in other states to be causing a nuisance by applying the State nuisance law from Alabama, Kentucky and Tennessee where the sources are located.