On Wednesday, the U.S. District Court for the Western District of North Carolina held that SO2 and NOx emissions from four of TVA’s coal-fired power plants constitute a public nuisance. Specifically, the court agreed with the claims made by the State of North Carolina that the pollution from TVA’s Bull Run, Kingston, John Sevier, and Widows Creek facilities “clouds its scenic vistas, poisons its wildlife, and sickens its people.” Conversely, the court held that North Carolina had not produced sufficient evidence to rule that seven other TVA plants were a public nuisance, and rejected those claims.
The court recognized that “[t]he ancient common law of public nuisance” is not ordinarily the means by which air pollution concerns are resolved, given the existence of the Environmental Protection Agency, but noted that North Carolina had already attempted and failed to control TVA’s emissions through “normal administrative channels” under the Clean Air Act. Applying state nuisance law from the states in which the plants are located, the court determined that “untreated air pollution” from TVA’s activities had unreasonably interfered with the life and property of North Carolina citizens. As a remedy, the court ordered TVA to install Selective Catalytic Reduction systems (“SCRs”) and Flue Gas Desulfurization systems (FGDs or scrubbers) at each of the four plants and required TVA to operate those systems year-round. North Carolina estimated the cost of these controls at $3 billion, while TVA claims the true cost will actually be $5 billion or more. The court also directed TVA to provide the court with a semi-annual accounting of the company’s progress in complying with the order, which set an ambitious schedule for installing the new controls. TVA has not yet announced whether it will appeal the decision.