North Carolina Attorney General Roy Cooper has invested $7.7 million in litigating a pollution-control lawsuit against the Tennessee Valley Authority without much to show for it.
Cooper gained a landmark victory last year when a federal district court judge required TVA to install emissions control devices on four of its coal-fired power plants. But in a single stroke Monday, the 4th U.S. Circuit Court of Appeals reversed that decision (PDF download), leaving the future of Cooper’s suit against the federally owned corporation in doubt.
In a unanimous decision, a three-judge panel of the appellate court ruled that accepting Cooper’s argument that TVA emissions constitute a public nuisance would allow judges to apply overly vague standards to the issue.
“The result would be a balkanization of clean air regulations and a confused patchwork of standards, to the detriment of industry and the environment alike,” Judge J. Harvie Wilkinson III wrote.
The court also dismissed a keystone of Cooper’s suit — that TVA emissions were harming public health in western North Carolina. “[T]he problem is not a neglected one,” Wilkinson wrote. “In fact, emissions have been extensively regulated nationwide by the Clear Air Act for four decades.”
Instead, the court found, the “real question” is whether individual states can supersede “the cooperate federal-state framework that Congress through the EPA has refined over many years.”
In a policy report published in 2008, the John Locke Foundation dismissed Cooper’s health benefits claims, writing, “In reality, the actual benefits of the TVA power plant emissions reductions will be only a tiny fraction of the amount claimed by the Attorney General’s experts.”.
Cooper now has the option of requesting a rehearing by the circuit court, appealing the decision to the Supreme Court, or dropping the case. A spokeswoman for the attorney general’s office declined to say which option they will pursue.
“This ruling is disappointing but the fight for clean air is far from over,” Cooper said in a statement. “I’m pleased that the TVA is cleaning up the four plants cited in the order and I trust this will continue during the appeals process.”
Cash for lawyers
Cooper hired two Washington, D.C., law firms to help litigate the case. A review of invoices and receipts by Carolina Journal showed the attorney general paid one firm — Hunsucker Goodstein & Nelson PC — up to a quarter-million dollars per month in legal fees, and another firm, the Ayres Law Group, up to $515 per hour.
Receipts also show that lawyers got reimbursed for beer, candy, airline flight upgrades, and valet parking. On several occasions, staff racked up thousands of dollars in unnecessary hotel and airline fees.
A Hunsucker paralegal, for example, was reimbursed almost $7,000 for a month-long stay at an upscale Washington hotel. Airline receipts indicate that she was present at the hotel only 12 out of 29 nights, incurring more than $4,000 in unused room fees.
Other records show that Cooper’s office reimbursed Hunsucker’s lead counsel in the TVA case nearly $500 for a flight between Asheville and Washington that he never took.
Challenged to explain the expenses at a meeting in October, Cooper responded that the reimbursements had been “scrubbed.” If a disallowed expense comes in, “then it is deducted from a future bill or it is requested that it be paid back,” he said.
David N. Bass is an associate editor of Carolina Journal.