N.C. Attorney General Roy Cooper brought the claim against TVA, a federally owned utility, arguing that emissions from its coal-fired power plants constitute a public nuisance for North Carolina. Airborne pollutants from TVA's 11 regional coal-fired power plants, the suit maintains, adversely impact N.C.'s public health, welfare and environment, hindering the progress made since the state passed the Clean Smokestacks Act in 2002. The utility, North Carolina maintains, should be forced to install tighter controls on its power-plant emissions.
For its part, TVA maintains that the Clean Air Act and other federal legislation aimed at curbing emissions are sufficient to address pollution, and that emissions within North Carolina are more harmful to the state's air quality than TVA's smokestacks.
School of hard NOx
Sulfur dioxide and nitrogen oxide are the two main pollutants that N.C. says are blowing in from Tennessee and fouling our air. SO2 reacts with other compounds in the air to form sulfates -- tiny particles that create the haze obscuring mountain views. As air-resources specialist Bill Jackson of the U.S. Forest Service testified July 14, "Sulfate particulates are sticky -- and efficient at scattering light." The more you can reduce SO2, he added, the farther you can see.
NOx, meanwhile, is a primary ingredient of ground-level ozone, a harmful pollutant linked to asthma and other respiratory ailments. According to a trial brief prepared by Cooper, "If TVA reduces its emissions to levels North Carolina seeks, an estimated 1,400 premature deaths will be avoided each year throughout the [Southeast]; in North Carolina alone, the number of adverse health effects that would be avoided each year include: 99 fewer premature deaths, 19,000 fewer asthma exacerbations, 47,000 fewer restricted activity days, and 2,300 fewer lost school days." Leading public-health expert Jonathan Levy crunched those numbers, according to a trial brief prepared by Cooper.
A focal point of the July 14 court proceedings was a report prepared by the Southern Appalachian Mountains Initiative, an air-quality assessment team consisting of scientists from agencies in eight Southeastern states. The SAMI Report, as it's called, uses air modeling to hatch a long-term plan for cutting back emissions, especially around national parklands. Great Smoky Mountains National Park, which straddles the N.C. and Tennessee border, would benefit the most from emissions cuts in Tennessee, computer models showed. TVA generates some 72 percent of Tennessee's total air emissions, according to Brock Nicholson, deputy director of the N.C. Division of Air Quality.
A central theme of N.C.'s argument is that since the Clean Smokestacks Act was passed, the state has been winning the battle against its own SO2 and NOx pollution but nonetheless losing ground due to the pollution that blows in from Tennessee. Progress Energy, for example, installed the first pollution-control scrubbers at its Skyland power plant, eliminating a significant chunk of Western North Carolina's SO2 pollution. Statewide, "there are 11 scrubbers, total, between Progress Energy and Duke," Nicholson testified, and "54 percent of their total generation capacity is now scrubbed." According to his division's analysis, he added, the state's two utility giants are on track to meet the 2013 emissions-reduction goals set by the 2002 law.
TVA, however, seeks to turn this argument on its head. "If North Carolina has poorer air quality than it desires," a trial brief prepared by the utility's attorneys states, "it need look no further than sources of air pollution within its own borders for the reason."
Both in court documents and during the trial, TVA shined a light on Canton's Blue Ridge Paper Products mill, which is exempt from Clean Smokestacks Act requirements. "Right in the heart of North Carolina's mountains is Blue Ridge Paper Products, which blankets the area with SO2, NOx, ammonia and [particulate] emissions from its power boilers and short stacks," the brief states. "This facility is one of nine coal-fired power plants North Carolina chose to exempt from the [law's] requirements."
While Nicholson was on the stand, a TVA attorney asked him about a complaint by a resident living near the paper mill who said particles from the plant were falling onto his car, prompting health concerns. "And the Division of Air Quality responded by telling him that all national air-quality standards and state standards were met?" the attorney pressed. Nicholson conceded the point, saying he vaguely recalled the incident, but said the complaint didn't necessarily constitute an ambient air-quality violation or an actual health problem.
D.C. court negates clean-air rule
The next day, air-pollution-control expert Jim Staudt, president of Andover Technology Partners, testified that the TVA could do more to control its emissions. Staudt said the agency could cut its annual sulfur-dioxide emissions from 374,000 tons to 140,000 tons, citing upgrades the utility has already made as evidence that this is feasible.
Staudt also testified that a recent federal-court ruling would prompt the TVA and other utilities to hold off on any plans to install new pollution-control equipment. In a July 11 ruling, the U.S. Court of Appeals for the District of Columbia Circuit annulled the Clean Air Interstate Rule, which was aimed at sharply reducing power-plant emissions of SO2 and NOx. According to the U.S. Environmental Protection Agency, it would have done more to reduce air pollution than any other clean-air rule in the past decade.
Siding with Duke Energy, however, the three-judge panel found that the EPA had overstepped its authority in passing the 2005 rule, because it required greater pollution reductions than were called for by the Clean Air Act. Without the EPA rule, Staudt testified, "The future is highly uncertain." North Carolina is one of only a few states nationwide to have enacted a law like the Clean Smokestacks Act, which will preserve emissions-reduction regulations despite the court's ruling.