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North Carolina v. Tennessee Valley Auth.

ELR Citation: 39 ELR 20015
Nos. No. 1:06-CV-20, (W.D.N.C., 01/13/2009)

A district court ordered the Tennessee Valley Authority (TVA) to install and continuously operate scrubbers at four power plants in Tennessee and Alabama. North Carolina filed a public nuisance claim against TVA, citing urgent environmental concerns due to air pollution emitted by TVA's coal-fired power plants in Alabama, Kentucky, and Tennessee. North Carolina presented sufficient evidence that untreated air pollution from three power plants in eastern Tennessee—Kingston, Bull Run, and John Sevier—unreasonably interferes with the rights of its citizens. TVA's generation of power at low cost to the consuming public has a high social utility. Nonetheless, the vast extent of the harms caused in North Carolina by the secondary pollutants emitted by these plants outweighs any utility that may exist from leaving their pollution untreated. TVA's failure to speedily install readily available pollution control technology is not, and has not been, reasonable conduct under the circumstances. For this reason, a judicially imposed injunction requiring the installation and continual, year-round use of appropriate pollution control technology is appropriate with respect to these three plants. Likewise, untreated air pollution from TVA's Widows Creek plant in Alabama is harming the citizens of North Carolina, and TVA's failure to install readily available pollution controls on Widows Creek is a proximate cause of their injuries. Again, the court ordered the prompt installation and year-round usage of appropriate pollution control technologies at the plant. North Carolina, however, failed to prove public nuisance as to TVA's two Kentucky plants, four Tennessee plants, and another Alabama plant.

[A prior decision in this litigation can be found at 38 ELR 20037.]